By Dr. Peter A. Barone, Esq.
In review officer involved shootings everyday in my effort to complete my study of 6,000 OIS's cases nation wide. Today when I was reviewing a couple of cases two in particular caught me attention, and they really made me stop and think about what trainers have been saying is one of their worst fears concerning officers encountering deadly force situations on the street.
CASE ONE:
The first case comes out of the City of Chicago and eventually ended up as an OIS where the subject had to be shot and killed to stop his attempted murderous actions against law enforcement officers.
The officers were dispatched to a call where a troubled 25 year old man was threatening to commit suicide. When the officers who were dispatched to this call arrived on the scene they observed a young man sitting there with a knife in his hand. As soon as the officers exited their police vehicles the young man immediately left the area where he was standing and literally charged directly at the officers who were dispatched there to try to assist this 25 year old man.
This 25 year old man focused on one of the police officers, for no apparent reason, and actually came up on him and then stabbed the officer not once, but two times in his vest. After stabbing the officer two times in the vest he was allowed to walk away and began to walk, still with his knife in hand, in an eastbound direction from the area where he had just stabbed the Chicago Police Officer in his vest two times. At this time the officers decided they should engage him since he did still have the knife and did demonstrate that he was a danger to them and anyone else that might be around the area he was walking in at the time. The officers engaged him and asked him to put his weapon down at which time his response to the officers request was to once again charge at the officers trying to stab one of them for a second within minutes. It was finally at this point in time that the officers used deadly force against their attacker. He was shot twice in the torso and was transported to the hospital where he was later pronounced dead.
The part of this that concerns me is the question which goes like this: "Did they wait too long after having one of the officers stabbed twice and then being charged a second time to actually use deadly force, or any force at all?" and if so "did they do this due to what has been happening all over the country with the major focus being in Ferguson and New York City?"
SECOND STORY:
The second story comes out of Dallas Texas and in this incident the officer was very lucky and did not have to fire his weapon to subdue the armed subject.
Tuesday night while on his way to work in an plainclothes capacity this officer noticed out of the corner of his eye that there was an altercation going on outside of a liquor store and so decided to pull into the parking lot of the store. He later stated: "I really did not want to get out if I didn't have to" and he then advised "I very quickly figured out that it was possibly a robbery and the guy had a gun."
The suspect was fighting with two store clerks as the officer approached them in front of the store. The officer tried to intervene by struggling with the suspect for almost five minutes. The officer advised that the suspect then pointed his revolver at him and tried to shoot him. The officer was able to place a finger between the trigger and the back part of the trigger guard so when the suspect pointed the gun at his head and tried to shoot him he was not able to get the trigger back far enough to have the weapon fire. The officer was able to grab hold of the extractor rod of the revolver and was able to empty out the rounds in the revolver rendering the weapon safe. The suspect was taken into custody and the officer received high praise from his agency.
I absolutely understand that what he did was heroic and I also totally understand, from studying the marshal arts for decades, what it takes to do something like he did. However, my concern again is "Was his desire to not really want to have to get out and get involved and then not use any weapon of any kind risking his life and possibly the lives of those clerks and anyone else around him because of what has occurred in Ferguson and New York City?"
I cannot answer this question because I am not either one of these individuals and I was not there; however, I review these types of cases every single day and have done so for the past year or so and have interviewed officers, and continue to do so for my studies and book, who have been involved in officer involved shootings and the facts of these two cases concern me. I am also truly very glad that both of these incidents resulted in only one Chicago officer sustaining minor injuries and no other officers were injured.
Do these incident now vividly demonstrate that we now have a reason to really be concerned for the safety of officers?
Friday, December 26, 2014
Wednesday, December 24, 2014
Commetary on the Events Involving Michael Brown (Ferguson), Eric Garner (New York) and Antonio Marin (Berkley) Regarding Officer Involved Shootings
What is being demonstrated at this time is the inability for a large number of multiracial individuals all over this country to comprehend the reality of a large number of these black males committing crimes, illegally carrying firearms, and actually attempting to use them, and using them, as was the case in New York and Berkley MO.
It is also a very vivid demonstration that many of these Blacks are using these events as nothing but a rationalization and false reason to go out and act out in an anti-social manner against anything they can attack, loot and destroy. The only positive aspect of these issues are that the entire United States is now able to see how these various groups of certain multiracial demonstrators use any reason or excuse to riot, fight, loot and destroy things in their own neighborhoods no matter what the issue may be that provided them with any possible excuse they can align themselves with throughout the United States.
Michael Brown was committing crimes, Eric Garner was committing a crime, Antonio Martin was committing a crime and yet all of these individuals who are rioting and complaining do not mention the fact that these individuals were committing crimes. Their actions are what what initiated the encounters and then the actions of these criminals is what caused the reactions of the officers who were actually doing their jobs protecting the communities they were sworn to protect.
In addition, when ill informed media commentators ask questions as to whether the weapon was loaded or if the suspect actually fired at the officers before the officer fired at them and killed them continue to put non-relevant ideas into the minds of these already law breaking individuals who are rioting and looting, this causes an additional exacerbation and provides these rioters with more ignorant questions to ask and more ignorant information to use as their fodder for their ill conceived and irrational rioting and lawless actions. That is the other aspect that is inconceivable to view and try to comprehend when mayors sit back the allow these individuals to commit crimes out in the open in a notorious manner on television and order their officers to not take any police action at the peril of the officers on the scenes and the residents whose property and belongings are being looted and destroyed. Is this justice and is this what mayors are elected to do during their tenure?
These mayors are telling the other individuals in their cities to just sit back and not worry because, as one of the borough leaders from New York said "these individuals are just frustrated." I study the law every day and create course, teach university students and law enforcement officers all year long and have a license to practice law and have been an attorney for the past 22 years and I have to tell you that I have never seen an amendment to laws that allow for FRUSTRATION as an affirmative defense to looting, burglarizing, assaulting police officers, delaying traffic, delaying ambulances, fire trucks and police in their response to emergency calls. This is a crime to prevent these responses due to illegally protesting without a permit in the middle of traffic when everyone who is need of these services have the same rights, and in these cases more rights, as the individuals who are illegally demonstrating and rioting. Let there be no mistake of which label needs to be applied to these activities because it is not demonstrating under the First Amendment, it is RIOTING, as was called for by Michael Brown's step-father and was responded to by the crowds present at that original demonstration the night of the verdict which then turned into a complete riot.
It is truly amazing that some of the Borough presidents were actually elected to their positions because they were supposed to be intelligent and sensitive to their all of their constituents. It is mind boggling that theses individuals are blind to the demonstrated facts which were posted on social media by the subject himself who executed the two New York Police Officer. He himself stated that he was going to New York to kill two cops to make up for and in revenge for the killings of Brown and Eric Garner. How much clearer can this be that the Mayor allowing the crowds to break the law in New York when they were demonstrating without a permit and allowing them to make statements about killing cops now had no nexus to this subject deciding to go from Baltimore Maryland to New York City to kill two cops. This subject went through several states before he arrived in Brooklyn and did not kill a cop anywhere except where the crowds were chanting What do we want to kill a cop and when to do we want it now." However, the one consistent black Borough Leader, whose name escapes me but I have watched now for 6 days on CNN, still claims, as does the subject's family that there is no proof that he went to New York to avenge the deaths of Brown and Garner. Can they really expect intelligent and educated people to buy their misrepresentations when the proof is there in writing from the subject himself.
These Borough presidents are also part of the problem because they cannot be open and honest and admit that the people are breaking the law and that comments, and I am so tired of hearing the word rhetoric being used by many people who more than likely never used it before they heard it on the CNN broadcast, that were made directly caused this subject to come to New York. In addition, why did the suspect in Tennessee, who has advised he is going to go to New York to kill cops, choose New York as to where he is going to go to kill cops? I truly believe that someone in 10th grade can figure this out and yet adults cannot do this in a proper manner. Or is it that they do not want to do this because they are more interested in using these events for their own benefit and look good in front of their constituents?
The officer in Berkley Missouri was there on a call he received from his dispatcher and while speaking with the suspect he had a firearm pulled on him and took the proper action he needed to do, and that anyone else would do who was carrying a gun, if someone pulled a firearm on them threatening their lives would have done. Yet, even though this was a clear cut and blatant criminal act perpetrated by an 18 year old Black criminal there were Black rioters that came out immediately seeing another opportunity to show their FRUSTRATION to burn, riot and injure police officers who were doing their job to protect them and their community. This entire event was captured on a neutral video camera and still a Borough leader from New York comments on the response by the rioters spawned by this valid and justified shooting as being an act of these people based upon them being FRUSTRATED. Again, someone please provide me with the reference to see where FRUSTRATION is now an affirmative defense in the United States Legal System.
A very unique idea here would be to approach this from a very logical and legal perspective, which I truly do not, based upon all of the research I have been conducting, and examine how these things occurred and how they would have been different.
Michael Brown; If he did not commit a strong arm robbery and not bully and threaten the store owner after committing this entire situation may have had a completely different outcome due to the Officer seeing the cigarillos in his hand while walking down the middle of the street. If he would have not been walking in the street when there were sidewalks available. It should be noted he was not just walking in the street, he was waling in the MIDDLE of the street. If he would have spoke to the officer, if he would have not attacked the officer and would have followed the orders of the officer where the person being arrested knows the officer is making or attempting to make an arrest and if you are being unlawfully arrested you DO NOT have the right to resist in accordance with the statutory laws in Missouri. Why do so many states in the United Stats have these statutes? Because they wanted to prevent exactly what is happening in these cases with resistance leading to confrontations and the need to use force to the extent of deadly force.
Lets examine the actions of Eric Garner in New York City. He was committing a crime and was told he was going to be arrested and resisted. This was not his first time that he was performing these criminal acts. If he would have complied with the officers orders and allowed them to take him into custody then there would not have been a need for the officers to have had to use force to take down this very big and very heavy man, who was similar in size as Michael Brown. It is very difficult to explain to anyone who has not tried to arrest an individual who is resisting and fighting and to try not to injure or hurt the subject. When I began police work in 1975 and someone was really resisting arrest you would punch the person in the jaw and knock them out and take them into custody. I was in a training session last week for an Under 100 class and one of the videos showed a good sized and in shape officer have a subject come at him and he punched the subject in the jaw and knocked him out and that was the end of the issue. This type of action does not allow for these types of extended altercations usually resulting in the officer being hurt or the subject being hurt or killed. Just complying with the officers orders would have caused the confrontation not to occur and if it down after he complied then the officers would have been in trouble for their actions.
If the rioting which was allowed to occur in Ferguson would have been stopped by the orders of the Mayor and Governor it may have placed a different idea in the mind of Eric Garner to decide to resist and draw a crowd around him during his arrest for him committing a crime. If the rioting in Ferguson and the out of hand illegal demonstrations in New York, with the calling for the killing of cops now, would have been quelled then maybe the subject from Baltimore would not have decided to post that he was going to New York to put wings on two pigs as revenge for the killings of Michael Brown and Eric Garner.
A person yelling fire in a movie theatre is responsible for the results if there was no fire and this is taught in law schools all over the country for decades Schenck v. United States 249 U.S. 47 (1919). However, no one wants to make the nexus or connection between these comments and the resulting actions which were exactly what each called for such as 'Burn this Bitch down" in Ferguson and '
"we want cops to be killed now" in New York. How interesting that the burning occurred a little while after these comments were made in Ferguson and a few days after the comments we want cops killed now two cops are executed in New York City where the comments were made; however, the astute borough presidents and representatives in this area in New York do not see this connections. Is this self-imposed blindness or their real true feelings and mindset coming out notwithstanding them being on world wide television and intelligent and educated people listening to these individuals making these ridiculous comments.
The actions of the New York City Mayor are unprofessional and also biased. You do NOT bring your personal life or family issues into your profession. This is especially true when you are in the middle of a controversial issue which is occurring across the nation. You need to support your employees and need to support the residents you have been elected to represent. You do not have the responsible to take the side of a group of people who are protesting in an illegal fashion, committing crimes by closing down streets and closing down bridges. You do not need to be making comments about how you had to tell your biracial son how to act when encountering police like other parents with black children have had to do for decades. It appears that the mayor is not really prepared to perform the duties of his office and unless he takes a crash course and gets his mind properly focused he is going to have a great deal of issues in the future to deal with on a continuous basis.
How can any progress ever be made if these borough leaders cannot be honest and see the reality of what is occurring and place the blame where it belongs and then move forward.?
References
Schenck v. United States 249 U.S. 47 (1919).
It is also a very vivid demonstration that many of these Blacks are using these events as nothing but a rationalization and false reason to go out and act out in an anti-social manner against anything they can attack, loot and destroy. The only positive aspect of these issues are that the entire United States is now able to see how these various groups of certain multiracial demonstrators use any reason or excuse to riot, fight, loot and destroy things in their own neighborhoods no matter what the issue may be that provided them with any possible excuse they can align themselves with throughout the United States.
Michael Brown was committing crimes, Eric Garner was committing a crime, Antonio Martin was committing a crime and yet all of these individuals who are rioting and complaining do not mention the fact that these individuals were committing crimes. Their actions are what what initiated the encounters and then the actions of these criminals is what caused the reactions of the officers who were actually doing their jobs protecting the communities they were sworn to protect.
In addition, when ill informed media commentators ask questions as to whether the weapon was loaded or if the suspect actually fired at the officers before the officer fired at them and killed them continue to put non-relevant ideas into the minds of these already law breaking individuals who are rioting and looting, this causes an additional exacerbation and provides these rioters with more ignorant questions to ask and more ignorant information to use as their fodder for their ill conceived and irrational rioting and lawless actions. That is the other aspect that is inconceivable to view and try to comprehend when mayors sit back the allow these individuals to commit crimes out in the open in a notorious manner on television and order their officers to not take any police action at the peril of the officers on the scenes and the residents whose property and belongings are being looted and destroyed. Is this justice and is this what mayors are elected to do during their tenure?
These mayors are telling the other individuals in their cities to just sit back and not worry because, as one of the borough leaders from New York said "these individuals are just frustrated." I study the law every day and create course, teach university students and law enforcement officers all year long and have a license to practice law and have been an attorney for the past 22 years and I have to tell you that I have never seen an amendment to laws that allow for FRUSTRATION as an affirmative defense to looting, burglarizing, assaulting police officers, delaying traffic, delaying ambulances, fire trucks and police in their response to emergency calls. This is a crime to prevent these responses due to illegally protesting without a permit in the middle of traffic when everyone who is need of these services have the same rights, and in these cases more rights, as the individuals who are illegally demonstrating and rioting. Let there be no mistake of which label needs to be applied to these activities because it is not demonstrating under the First Amendment, it is RIOTING, as was called for by Michael Brown's step-father and was responded to by the crowds present at that original demonstration the night of the verdict which then turned into a complete riot.
It is truly amazing that some of the Borough presidents were actually elected to their positions because they were supposed to be intelligent and sensitive to their all of their constituents. It is mind boggling that theses individuals are blind to the demonstrated facts which were posted on social media by the subject himself who executed the two New York Police Officer. He himself stated that he was going to New York to kill two cops to make up for and in revenge for the killings of Brown and Eric Garner. How much clearer can this be that the Mayor allowing the crowds to break the law in New York when they were demonstrating without a permit and allowing them to make statements about killing cops now had no nexus to this subject deciding to go from Baltimore Maryland to New York City to kill two cops. This subject went through several states before he arrived in Brooklyn and did not kill a cop anywhere except where the crowds were chanting What do we want to kill a cop and when to do we want it now." However, the one consistent black Borough Leader, whose name escapes me but I have watched now for 6 days on CNN, still claims, as does the subject's family that there is no proof that he went to New York to avenge the deaths of Brown and Garner. Can they really expect intelligent and educated people to buy their misrepresentations when the proof is there in writing from the subject himself.
These Borough presidents are also part of the problem because they cannot be open and honest and admit that the people are breaking the law and that comments, and I am so tired of hearing the word rhetoric being used by many people who more than likely never used it before they heard it on the CNN broadcast, that were made directly caused this subject to come to New York. In addition, why did the suspect in Tennessee, who has advised he is going to go to New York to kill cops, choose New York as to where he is going to go to kill cops? I truly believe that someone in 10th grade can figure this out and yet adults cannot do this in a proper manner. Or is it that they do not want to do this because they are more interested in using these events for their own benefit and look good in front of their constituents?
The officer in Berkley Missouri was there on a call he received from his dispatcher and while speaking with the suspect he had a firearm pulled on him and took the proper action he needed to do, and that anyone else would do who was carrying a gun, if someone pulled a firearm on them threatening their lives would have done. Yet, even though this was a clear cut and blatant criminal act perpetrated by an 18 year old Black criminal there were Black rioters that came out immediately seeing another opportunity to show their FRUSTRATION to burn, riot and injure police officers who were doing their job to protect them and their community. This entire event was captured on a neutral video camera and still a Borough leader from New York comments on the response by the rioters spawned by this valid and justified shooting as being an act of these people based upon them being FRUSTRATED. Again, someone please provide me with the reference to see where FRUSTRATION is now an affirmative defense in the United States Legal System.
A very unique idea here would be to approach this from a very logical and legal perspective, which I truly do not, based upon all of the research I have been conducting, and examine how these things occurred and how they would have been different.
Michael Brown; If he did not commit a strong arm robbery and not bully and threaten the store owner after committing this entire situation may have had a completely different outcome due to the Officer seeing the cigarillos in his hand while walking down the middle of the street. If he would have not been walking in the street when there were sidewalks available. It should be noted he was not just walking in the street, he was waling in the MIDDLE of the street. If he would have spoke to the officer, if he would have not attacked the officer and would have followed the orders of the officer where the person being arrested knows the officer is making or attempting to make an arrest and if you are being unlawfully arrested you DO NOT have the right to resist in accordance with the statutory laws in Missouri. Why do so many states in the United Stats have these statutes? Because they wanted to prevent exactly what is happening in these cases with resistance leading to confrontations and the need to use force to the extent of deadly force.
Lets examine the actions of Eric Garner in New York City. He was committing a crime and was told he was going to be arrested and resisted. This was not his first time that he was performing these criminal acts. If he would have complied with the officers orders and allowed them to take him into custody then there would not have been a need for the officers to have had to use force to take down this very big and very heavy man, who was similar in size as Michael Brown. It is very difficult to explain to anyone who has not tried to arrest an individual who is resisting and fighting and to try not to injure or hurt the subject. When I began police work in 1975 and someone was really resisting arrest you would punch the person in the jaw and knock them out and take them into custody. I was in a training session last week for an Under 100 class and one of the videos showed a good sized and in shape officer have a subject come at him and he punched the subject in the jaw and knocked him out and that was the end of the issue. This type of action does not allow for these types of extended altercations usually resulting in the officer being hurt or the subject being hurt or killed. Just complying with the officers orders would have caused the confrontation not to occur and if it down after he complied then the officers would have been in trouble for their actions.
If the rioting which was allowed to occur in Ferguson would have been stopped by the orders of the Mayor and Governor it may have placed a different idea in the mind of Eric Garner to decide to resist and draw a crowd around him during his arrest for him committing a crime. If the rioting in Ferguson and the out of hand illegal demonstrations in New York, with the calling for the killing of cops now, would have been quelled then maybe the subject from Baltimore would not have decided to post that he was going to New York to put wings on two pigs as revenge for the killings of Michael Brown and Eric Garner.
A person yelling fire in a movie theatre is responsible for the results if there was no fire and this is taught in law schools all over the country for decades Schenck v. United States 249 U.S. 47 (1919). However, no one wants to make the nexus or connection between these comments and the resulting actions which were exactly what each called for such as 'Burn this Bitch down" in Ferguson and '
"we want cops to be killed now" in New York. How interesting that the burning occurred a little while after these comments were made in Ferguson and a few days after the comments we want cops killed now two cops are executed in New York City where the comments were made; however, the astute borough presidents and representatives in this area in New York do not see this connections. Is this self-imposed blindness or their real true feelings and mindset coming out notwithstanding them being on world wide television and intelligent and educated people listening to these individuals making these ridiculous comments.
The actions of the New York City Mayor are unprofessional and also biased. You do NOT bring your personal life or family issues into your profession. This is especially true when you are in the middle of a controversial issue which is occurring across the nation. You need to support your employees and need to support the residents you have been elected to represent. You do not have the responsible to take the side of a group of people who are protesting in an illegal fashion, committing crimes by closing down streets and closing down bridges. You do not need to be making comments about how you had to tell your biracial son how to act when encountering police like other parents with black children have had to do for decades. It appears that the mayor is not really prepared to perform the duties of his office and unless he takes a crash course and gets his mind properly focused he is going to have a great deal of issues in the future to deal with on a continuous basis.
How can any progress ever be made if these borough leaders cannot be honest and see the reality of what is occurring and place the blame where it belongs and then move forward.?
References
Schenck v. United States 249 U.S. 47 (1919).
Monday, December 22, 2014
Rest in Peace Officers Ramos and Liu
May these officers, our brothers, rest in peace and may their families find peace and strength to get them through the senseless tragedy they are being put through due to this horrific, mindless act.
This picture was created by someone on fact book.
Dr. Barone
This picture was created by someone on fact book.
Dr. Barone
Sunday, December 21, 2014
Ferguson and Michael Brown: Taking the Time to Understand the Actual Law which is Applicalbe to Use of Force PART II
Use of Force and Supreme Court Decisions
It is critically important to understand the legality of the use of force, to include deadly force, and the 4th Amendment as being absolutely critical to an officers ability of doing their job, abiding by and acting in accordance with the 4th Amendment and case law, and also staying alive to come home every night. Understanding the use of force case law assists officers in making sure that they are performing their duties in a manner that is legal and in accordance with the law. This understanding also assists them in not having to be overly concerned about being indicted, going to jail and being sued and subject to monetary loss if they are accused of having violated someone's rights. Understanding the law and case law also assists officer if they are involved in an officer involved shooting, on or off-duty, while trying to do their job and protecting the public and accused of acting in an illegal manner. Knowing what you can and cannot do legally is something that assists you in taking the proper action required under a variety of circumstances faced by officers in the performance of their duty.
Incidents like the ones occurring in Ferguson and New York City, where the law enforcement officers did their jobs and did it in the proper fashion, and then the officers saw various city officials allow the types of demonstrations and violence which were perpetrated without repercussions was no the proper or even legal message that should have been sent to the community and to the officers who again were caught in the middle of the issues. This type of non-action directed by the top city officials simply adds to the problem and also creates a very dangerous mind set for the officers when performing their duties and in the communities they are policing. These top officials violated the rule of law and assisted in tearing down the social control of which we have been working to maintain for thousands of years. These top officials stood by and ordered the law enforcement officers to stand y while demonstrators caused traffic delays, looted, burned, burglarized, and destroyed property with the mindset of the top officials being that it would be better to let these people get it out of their system. Could there be more of a mixed message to law enforcement officers and a definite message of non-support for the legal and lawful actions of the officers in the performance of their duty?
The Courts have answered the questions, just as the grand juries in both states answered the questions, concerning when officers can use deadly force in the performance of their duties. However, because of the fall out from Ferguson and New York City, due to top officials allowing the breaking of the law by allowing people to riot and stop traffic and protest without permits, officers are now second guessing what the Court has already vividly stated in their decisions due to the irresponsibility of the top officials. When you have top officials siding with the demonstrators and not supporting your law enforcement officers and supporting demonstrators that have injured your police officers. When a mayor actually makes claims of an alleged attacks on police officers when they were injured and there is actual film of these attacks against the officers there is a very negative message being sent to not only the officers but to the community.
Even though the officers are taught and know the answers to the questions involving the knowing of the answers to :Can I shoot someone in the back under certain circumstances?" "Can I someone going into the bed of a pick up truck during a traffic stop when I have told them to show me your hands and do not go into the bed of your truck?" "What I can I use as a weapon if I cannot reach my Asp or my CO spray or my firearm during an encounter when I have reached the point of absolute fatigue and I am experiencing what is medically know as Fatigue Threshold, at this point can I shoot them, or use my radio to stop them before I pass out?" The actions by top officials who ignore the Courts holdings and acquiesce to the illegal and riotous actions of demonstrators cause the officers to question the actions they need to take at the time the situations arise due to the lack of support and anti-police position taken by top officials such as we have seen in New York and Ferguson.
The United States Supreme Court has addressed many of these issues and questions. In the case of Jean Baptiste v. Gutierrez (2010), the Court of Appeals for the 11th Circuit advised that the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the subject who is taking the deadly action against them. The court is advising here that officers do not have to wait until it is too late to do anything because the threat has not just manifested itself, but has already been engaged in and is on the way with no time for the officers to actually and effectively react to the deadly threat. The Court understands that the suspect has the advantage of knowing what they are going to do and intend to do, and the officers have to try to interpret the threat and then provide a response and there is not enough time for them to actually respond in time to save their lives and the lives of the people they are trying to protect.
In the case of Wilkens v. Gaddy (2010), the United States Supreme Court advised that claims of the use of force on a suspect are to be evaluated on the basis of the nature of the use of force used, not on whether the individual suffered any injury during the incident. The MAJOR ISSUE is whether the FORCE used was reasonable in that situation, and not the extent of the injuries sustained by the suspect. A police officer is entitled to continue his/her use of force until a suspect, thought to be armed, is FULLY SECURED. People in Ferguson and in New York, who supported the protesting in response to the Grand Jury decisions need to take time away from making their signs and do some reading of these cases. It would be very highly suggested that the attorneys for these individuals also take some time and read the decisions in that the information contained within these and other decisions can be very informative and enlightening to them.
In the case of Garcyznski v. Bradshow (2009), the 11th Court of Appeals held that at least where orders to a suspect to drop a weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force. The word weapons in this case does not limited it to be a firearm. It can be a cane as used in a case in New York City, it can be an end table as used in a case in Florida early this morning, it can be a motor vehicle or even a fence pole as was used against two Jersey City Police Officers a couple of days after a Jersey City officer was ambushed and killed.
Understanding the relevant Circuit Court and Supreme Court decisions because the fact is that a shooting is now absolutely considered by the United States Supreme Court to be a 4th Amendment issue involving a seizure and could also be a Civil Rights violation if they are not in conformity with the law and court decision. It is important to understand that in the U.S. Supreme Court decision of Tennessee v. Garner (1985) the defendant in that particular case was not only unarmed, he also posed not threat to the officers or to the community. The two pronged test that was a result of this case is as follows: The infliction of physical harm or the threat of infliction of physical harm by the subject and also the level of proof required here is "probable cause" and not of certainty; therefore, the threat of bodily harm is sufficient to satisfy this prong of the test. The Second prong of this test deals with the "necessity" of the use of deadly force. Here the court explained that the presumption is that a dangerous subject will continue to be dangerous even while escaping or running from the scene and the court accepted that this and the capture of this individual becomes very important and issues of "necessity" is now how, as opposed to whether, a dangerous subject will be seized. If an officer allows a subject to escape after demonstrating this type of action the officer has notice that this person has the potential and propensity to commit violent acts and to possibly harm, injure and kill residents, and if the officer allows this person to escape then the officer will now also be susceptible to a malfeasance charge and dereliction of duty and possible law suit by the victim of the suspects subsequent actions.
Dr. Barone
Jean Baptiste v. Gutierrez, 627 F.3d 816 (2010).
Wilkens v. Gaddy, 130 S. Ct. 1175 (2010).
Garcyznski v. Bradshaw, 573 F.3d 1158 (2009).
Tennessee v. Gardner, 471 U.S. 1 (1985).
Graham v. Connor, 490 U.S. 386 (1989).
It is critically important to understand the legality of the use of force, to include deadly force, and the 4th Amendment as being absolutely critical to an officers ability of doing their job, abiding by and acting in accordance with the 4th Amendment and case law, and also staying alive to come home every night. Understanding the use of force case law assists officers in making sure that they are performing their duties in a manner that is legal and in accordance with the law. This understanding also assists them in not having to be overly concerned about being indicted, going to jail and being sued and subject to monetary loss if they are accused of having violated someone's rights. Understanding the law and case law also assists officer if they are involved in an officer involved shooting, on or off-duty, while trying to do their job and protecting the public and accused of acting in an illegal manner. Knowing what you can and cannot do legally is something that assists you in taking the proper action required under a variety of circumstances faced by officers in the performance of their duty.
Incidents like the ones occurring in Ferguson and New York City, where the law enforcement officers did their jobs and did it in the proper fashion, and then the officers saw various city officials allow the types of demonstrations and violence which were perpetrated without repercussions was no the proper or even legal message that should have been sent to the community and to the officers who again were caught in the middle of the issues. This type of non-action directed by the top city officials simply adds to the problem and also creates a very dangerous mind set for the officers when performing their duties and in the communities they are policing. These top officials violated the rule of law and assisted in tearing down the social control of which we have been working to maintain for thousands of years. These top officials stood by and ordered the law enforcement officers to stand y while demonstrators caused traffic delays, looted, burned, burglarized, and destroyed property with the mindset of the top officials being that it would be better to let these people get it out of their system. Could there be more of a mixed message to law enforcement officers and a definite message of non-support for the legal and lawful actions of the officers in the performance of their duty?
The Courts have answered the questions, just as the grand juries in both states answered the questions, concerning when officers can use deadly force in the performance of their duties. However, because of the fall out from Ferguson and New York City, due to top officials allowing the breaking of the law by allowing people to riot and stop traffic and protest without permits, officers are now second guessing what the Court has already vividly stated in their decisions due to the irresponsibility of the top officials. When you have top officials siding with the demonstrators and not supporting your law enforcement officers and supporting demonstrators that have injured your police officers. When a mayor actually makes claims of an alleged attacks on police officers when they were injured and there is actual film of these attacks against the officers there is a very negative message being sent to not only the officers but to the community.
Even though the officers are taught and know the answers to the questions involving the knowing of the answers to :Can I shoot someone in the back under certain circumstances?" "Can I someone going into the bed of a pick up truck during a traffic stop when I have told them to show me your hands and do not go into the bed of your truck?" "What I can I use as a weapon if I cannot reach my Asp or my CO spray or my firearm during an encounter when I have reached the point of absolute fatigue and I am experiencing what is medically know as Fatigue Threshold, at this point can I shoot them, or use my radio to stop them before I pass out?" The actions by top officials who ignore the Courts holdings and acquiesce to the illegal and riotous actions of demonstrators cause the officers to question the actions they need to take at the time the situations arise due to the lack of support and anti-police position taken by top officials such as we have seen in New York and Ferguson.
The United States Supreme Court has addressed many of these issues and questions. In the case of Jean Baptiste v. Gutierrez (2010), the Court of Appeals for the 11th Circuit advised that the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the subject who is taking the deadly action against them. The court is advising here that officers do not have to wait until it is too late to do anything because the threat has not just manifested itself, but has already been engaged in and is on the way with no time for the officers to actually and effectively react to the deadly threat. The Court understands that the suspect has the advantage of knowing what they are going to do and intend to do, and the officers have to try to interpret the threat and then provide a response and there is not enough time for them to actually respond in time to save their lives and the lives of the people they are trying to protect.
In the case of Wilkens v. Gaddy (2010), the United States Supreme Court advised that claims of the use of force on a suspect are to be evaluated on the basis of the nature of the use of force used, not on whether the individual suffered any injury during the incident. The MAJOR ISSUE is whether the FORCE used was reasonable in that situation, and not the extent of the injuries sustained by the suspect. A police officer is entitled to continue his/her use of force until a suspect, thought to be armed, is FULLY SECURED. People in Ferguson and in New York, who supported the protesting in response to the Grand Jury decisions need to take time away from making their signs and do some reading of these cases. It would be very highly suggested that the attorneys for these individuals also take some time and read the decisions in that the information contained within these and other decisions can be very informative and enlightening to them.
In the case of Garcyznski v. Bradshow (2009), the 11th Court of Appeals held that at least where orders to a suspect to drop a weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force. The word weapons in this case does not limited it to be a firearm. It can be a cane as used in a case in New York City, it can be an end table as used in a case in Florida early this morning, it can be a motor vehicle or even a fence pole as was used against two Jersey City Police Officers a couple of days after a Jersey City officer was ambushed and killed.
In the seminal case of Graham v. Connor (1989) there is a specific delineation pointing out the differences between the cases and how shooting a suspect in the back can be legal and not go against the decision in Tennessee v. Garner (1985). Understanding when deadly force is necessary and required in realistic situation, rather than continuums, and also understanding what officers can do when tactics and techniques which are taught in defensive tactics are not working or are not applicable when officers are facing a violent offender on the street, in an apartment or during any type of situation where the officer is facing serious injury or death. The United States Supreme Court does not intend for an officer be shot at before the officer can use deadly force to protect themselves and to protect others.
In addition to these cases we are going to also discuss the "stop and frisk and reasonable suspicion standard used to conduct stops on the street within the confines of the law and within the legal parameters of the 4th Amendment of the United States Constitution and the Bill of Rights.
Again using the case of Graham v. Connor (1989) it is seen that the United States Supreme Court has advised that an inquiry into the actions of a law enforcement officer's use of deadly force must be "limited to the facts and circumstances confronting them (the officers involved in the action on the scene) at the time..... and judged from the perspective of a reasonable officer on the scene..... rather than with the 20/20 hindsight" which is "not capable of precise definition or mechanical application." The United States Supreme Court was very clear and vivid on the standard of being "reasonable at the moment." The amazing part of the actions that took place after the grand jury's decision not to render a true bill against officer Wilson was that the Brown family and the attorney for the Brown family totally disregarded the decisions by the Circuit Courts and the United States Supreme Court. In addition, these individuals also questioned the investigation, the prosecutors assessment, review and then presentation of a copious amount of documents to the grand jury to make their informed decision as not being justice. Again we have the self-created definition of the Brown family and their attorney of the word justice and their reaction to what they felt was not justice per their definition when the grand jury returned a no true bill. This also holds true for the case in New York City when that grand jury returned a no true bill in that particular use of force case.
In addition to what has been already discussed the United States Supreme Court went further to say that "We must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make split-second decisions between action and inaction in circumstances where inaction could prove fatal (Graham v. Connors, 1989).
Dr. Barone
Jean Baptiste v. Gutierrez, 627 F.3d 816 (2010).
Wilkens v. Gaddy, 130 S. Ct. 1175 (2010).
Garcyznski v. Bradshaw, 573 F.3d 1158 (2009).
Tennessee v. Gardner, 471 U.S. 1 (1985).
Graham v. Connor, 490 U.S. 386 (1989).
Fergson and Micheal Brown: Did Anyone, to include Brown's Attorney, ever take the Time to READ the Case Law Regarding Use of Force? PART I
It is really sad to see that when, even a very cursory read of the Court decisions for the past several years, anyone who is not legally trained would be able to see and truly understand that actions taken by law enforcement in both New York City and in Ferguson Missouri were totally within the legal norms and parameters outlined by the laws, legal system and major Supreme Court decisions.
The word justice has been bantered about without any realistic understanding of its actual meaning. The word justice is being used by a group of individuals who have expressed that as long as the decision they wanted to have made as an outcome to two separate grand juries in two different states were what they wanted then they would have been satisfied that justice had been done. That, I am sorry to inform these individuals to include the attorney for the Brown family, is not what we call or is known as justice in the Untied States of America.
They also continuously criticized the State Attorney for providing so much information and documents to the grand jury for them to make an informed decision. If the State Attorney had not provided all of the documentation they did to the grand jury it is a very good bet that these same people, to include the attorney for the Brown's, would have made the comment that the grand jury was not provided with all of the information they should have been provided with to make an informed decision.
In my 39 years of being in the field of law enforcement, and a former prosecutor, I have never heard of a case where there were 3 autopsies performed in one case and still have individuals involved in the case not be satisfied with the results because the results from all the autopsies did not support their emotional, illogical and non-legal position they have taken
The individuals in the Brown camp still are not satisfied with the mounds of proof, to include the video of Brown committing a strong armed robbery and bullying of the store own some 9 minutes prior to being spoken to by the Ferguson officer and the blood and physical evidence provided from the in depth investigation conducted by the officials in Ferguson. The attorney for the Brown family also acted in a way that he facilitated the questioning of the results of testimony officially on the record provided by eye witnesses to include the recanting of prior incorrect statements by witnesses and admissions of out right lying to police at the onset of the investigation.
In case the supporters and Brown's attorney are not aware of the case law that exists concerning the actions of Brown and his trustworthy companion in crime I would suggest that they take some time to read the cases and then they will see that the officer's actions in Ferguson and New York met the exact criteria rising to the level of reasonable suspicion for a stop and frisk which never did develop due to the aggressive behavior of Brown which was verified by witnesses and forensic evidence; which of course did not satisfy the definition of the Brown family, their supporters and their attorney, who should know better being a licensed criminal attorney. The actions of the officers in New York also met the requirements of state law and Supreme Court decisions notwithstanding the results of the grand jury not meeting the self created definition of Justice created by the Brown family and their attorney and the individuals in New York who wanted a true bill indictment against the officer.
In the next part of this commentary, addressing the legality of the actions of the officers in Ferguson and New York, there will be a presentation and a discussion of the various Court decisions supporting the actions of law enforcement in these incidents and also supporting the valid and legal decisions of the two different grand juries in two different states.
Dr. Barone, Esq.
The word justice has been bantered about without any realistic understanding of its actual meaning. The word justice is being used by a group of individuals who have expressed that as long as the decision they wanted to have made as an outcome to two separate grand juries in two different states were what they wanted then they would have been satisfied that justice had been done. That, I am sorry to inform these individuals to include the attorney for the Brown family, is not what we call or is known as justice in the Untied States of America.
They also continuously criticized the State Attorney for providing so much information and documents to the grand jury for them to make an informed decision. If the State Attorney had not provided all of the documentation they did to the grand jury it is a very good bet that these same people, to include the attorney for the Brown's, would have made the comment that the grand jury was not provided with all of the information they should have been provided with to make an informed decision.
In my 39 years of being in the field of law enforcement, and a former prosecutor, I have never heard of a case where there were 3 autopsies performed in one case and still have individuals involved in the case not be satisfied with the results because the results from all the autopsies did not support their emotional, illogical and non-legal position they have taken
The individuals in the Brown camp still are not satisfied with the mounds of proof, to include the video of Brown committing a strong armed robbery and bullying of the store own some 9 minutes prior to being spoken to by the Ferguson officer and the blood and physical evidence provided from the in depth investigation conducted by the officials in Ferguson. The attorney for the Brown family also acted in a way that he facilitated the questioning of the results of testimony officially on the record provided by eye witnesses to include the recanting of prior incorrect statements by witnesses and admissions of out right lying to police at the onset of the investigation.
In case the supporters and Brown's attorney are not aware of the case law that exists concerning the actions of Brown and his trustworthy companion in crime I would suggest that they take some time to read the cases and then they will see that the officer's actions in Ferguson and New York met the exact criteria rising to the level of reasonable suspicion for a stop and frisk which never did develop due to the aggressive behavior of Brown which was verified by witnesses and forensic evidence; which of course did not satisfy the definition of the Brown family, their supporters and their attorney, who should know better being a licensed criminal attorney. The actions of the officers in New York also met the requirements of state law and Supreme Court decisions notwithstanding the results of the grand jury not meeting the self created definition of Justice created by the Brown family and their attorney and the individuals in New York who wanted a true bill indictment against the officer.
In the next part of this commentary, addressing the legality of the actions of the officers in Ferguson and New York, there will be a presentation and a discussion of the various Court decisions supporting the actions of law enforcement in these incidents and also supporting the valid and legal decisions of the two different grand juries in two different states.
Dr. Barone, Esq.
Saturday, December 20, 2014
May the Souls of our Brothers NYPD Officers Ramos and Liu Rest in Peace and may their Families find Peace for this Horiffic Loss
Today's actions, the senseless execution of NYPD Officers Ramos and Liu, were completely senseless. These executions further demonstrates the ridiculous claims by the individuals demonstrating in that these officers were in a black high crime area on a special assignment in an effort to make the area safer for the black residents and had a success rate of a reduction in crime by 33 percent. This is a demonstration of, and example of, some of the people who are claiming that they want change due to a use of violence against individuals who initiate the hostile actions against law enforcement and force officers to use force to quell the situations they initiate. To these individuals, who support the executing of two officers in an area where they do not normally work and were there to assist with providing extra protection to the residents living there so that they can have the crime rate reduced so they can have a better quality of life, it vividly appears that they are demonstrating their inability to be logical, rational and truly seek peace and justice. It appears that you have not done such a very good job demonstrating your desire to effect change via a non-violent manner. These actions, and the actions of those supporting their violent acts further demonstrate their ability to be able to be cold blooded murders and most of all cowards.
In addition, the actions of the very intelligent professor who attacked two NYPD Lieutenants a few days ago further demonstrates again the types of individuals we are dealing with that espouse peaceful demonstrations and then attempt to throw items on the heads of police officers and then attack two police lieutenants, all of whom were assisting them to exercise their right and ability to peacefully demonstrate on behalf of their cause. These individuals are not only hypocritical they are inept and lacking of the ability to formulate a valid reason for their actions and have to use the deaths of two individuals who were committing crimes, and who cases were presented to separate grand juries who issued no true bills and the right to peacefully protest as a rationalization for them to attack law enforcement, be violent and kill officers in the name of these individuals while espousing the desire for a more regulated criminal justice system. How much more hypocritical can these individuals possibly be?
May the souls of both of these officers rest in peace forever and may their families find peace and find a way to move forward day by day in this chaotic world.
Dr. Peter A. Barone
In addition, the actions of the very intelligent professor who attacked two NYPD Lieutenants a few days ago further demonstrates again the types of individuals we are dealing with that espouse peaceful demonstrations and then attempt to throw items on the heads of police officers and then attack two police lieutenants, all of whom were assisting them to exercise their right and ability to peacefully demonstrate on behalf of their cause. These individuals are not only hypocritical they are inept and lacking of the ability to formulate a valid reason for their actions and have to use the deaths of two individuals who were committing crimes, and who cases were presented to separate grand juries who issued no true bills and the right to peacefully protest as a rationalization for them to attack law enforcement, be violent and kill officers in the name of these individuals while espousing the desire for a more regulated criminal justice system. How much more hypocritical can these individuals possibly be?
May the souls of both of these officers rest in peace forever and may their families find peace and find a way to move forward day by day in this chaotic world.
Dr. Peter A. Barone
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