Category Archives: police brutality

2nd Circuit Upholds Constitutionality Of Post-Shooting Breathalyzers For NYPD

It has been a little while since I posted here, so I am catching up on some “semi-recent” court rulings of note from around the country.  Here is one that may have slipped by you, but is worth a look.  As recently reported in Adjunct Law Prof Blog, the 2nd U.S. Circuit Court of Appeals has upheld a New York City policy requiring breathalyzer tests on officers immediately following a shooting death or injury caused by the use of their service pistol.  The case is entitled Lynch v. City of New York. I have placed a PDF of the case in the Box.

The NYPD breathalyzer policy requires that senior NYPD officials be notified of an officer-involved shooting with a gun, including the Internal Affairs Bureau (IAB). The policy then requires that a “portable breathalyzer test” be administered “in a private setting” to the “uniformed member(s) of the service who discharged a firearm.” If the portable breathalyzer test yields a reading of blood alcohol level of 0.08 or greater—the legal limit for driving an automobile in New York State—the officer in question must be transported to an IAB testing facility where he or she will be given a second test on a more accurate “Intoxilyzer” machine.

This particular policy arose out of a November 2006 shooting death of a suspect by undercover NYPD officers in Queens, New York.  Intense and widespread criticism from the public followed. In the wake of the Bell shooting, the Commissioner of the NYPD appointed a committee to review the Department’s undercover operations and to make recommendations for improvements. One recommendation was the breathalyzer policy.

Police unions challenged the policy on Fourth Amendment grounds, arguing that the officers’ Fourth Amendment privacy interests outweighed the NYPD’s interest in detecting and disciplining officers who use their guns while intoxicated. That argument was rejected, the court is essence holding that the police department has a substantial interest in deterring its officers from using firearms while intoxicated.

To my knowledge, the policy does not yet apply to other types of force (e.g., Tasers, batons, etc.) even if that use of force seriously injures.  Should it apply to Tasers?  I have personally handled cases where a Taser fired at the wrong part of the body can inflict serious and life-long injury.

What about some other, so-called “less lethal” weapons that still can cause substantial, possibly life-threatening injury?  See, e.g., Deorle v. Rutherford (9th Cir. 2001) 272 F.3d 1272 [Officer used “less lethal” bean bag shotgun, causing serious and substantial injury to emotionally distressed suspect, including multiple cranial fractures and dislodging one eye].  I have seen an unauthorized, military-style, “take down” maneuver cripple a suspect.

Does it matter what size police department is under analysis?  Perhaps, the NYPD has had significant problems of this sort in the past, and that history justifies the policy.  What if that history is not present?

If one lets the mind wander a bit, it is not difficult to conclude that any type of force that results in serious or substantial; or, perhaps, “life-threatening,” should be the subject of inquiry into the officer’s state of mind, including state of intoxication, if any.  Why not include a drug test, too?  It hardly makes sense to just test for alcohol, but not drugs – does it?

Having handled a dozen or so police misconduct cases, I have been critical of police officers in particular circumstances in how they use force.  I also happen to agree with the New York policy as it currently stands.  However, I think there is some danger if this kind of policy expands to include other uses of force.

On the one hand, there are officers like Bay Area Rapid Transit (BART) Officer Johannes Mehserle who fatally shot an unarmed and prostrate Oscar Grant in Oakland, CA early New Year’s Day 2009.  As part of his defense, Mehserle states that he believed he was firing his X26 model Taser, not his service pistol.  Even if true, the X26 is bright yellow, while service pistols are the typical gun barrel black.  Assuming for the moment that Mehserle is right, an officer who makes a mistake that confuses his black pistol with a yellow Taser (ruling out color-blindness or some other physical impairment), one might conclude that analyzing the officer’s sobriety at the time is reasonable.  For more on this case, extensive coverage can be found here and here.

On the other hand, there is the officer called out to the domestic violence scene.  Faced with a generally tense, often rapidly-evolving situation, where the officer has already been warned that this is the type of service call statistically the most dangerous to his or her person, the officer is naturally on edge.  That is simply human nature.  Then, something happens which sends the events down a tragic path, and the suspect is shot and wounded or killed. Does that mean every time such a shooting occurs, officers are subjected to alcohol testing, or possibly drug and alcohol testing, when they were exercising their discretion in the field under those incredibly tense and dangerous circumstances?

What do you think?  Is the Lynch decision a civil RIGHT or a civil WRONG?  All opinions are welcome on this important topic.


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9th Circuit Rules Taser Use Excessive; Defines What Constitutes “Resisting Arrest”

Today, in the matter of Bryan v. McPherson; City of Coronado, the U.S. 9th Circuit Court of Appeals issued what appears to be a significant ruling on the propriety of police officers using tasers.  The Court held that a police officer‘s use of a taser against an individual, without warning during a traffic stop for a seatbelt infraction, was unconstitutionally excessive under the circumstances.  The circumstances in the case included the fact that the plaintiff was unarmed, did not level a verbal or physical threat against the officer, was 15-25 feet away from the officer, and was facing away from the officer.

According to the officer, the plaintiff took a step towards him, justifying the use of the taser.  The 9th Circuit rejected this argument, ruling that even if the plaintiff had done so, the officer was not justified in using an intermediate level of force.

One of the most interesting aspects of this decision appears to be the Court’s characterization of the taser as intruding upon a person’s bodily functions and integrity in a way that other non-lethal uses of force do not.  As such, use of a taser must be justified by a strong governmental interest that compels employment of such force.

The second interesting aspect of the case is the Court’s characterization of what constitutes “resistance.”  In many cases, police officers use the argument that a suspect was “resisting” in order to justify the application of a higher level of force than what is necessary under the circumstances. 

The Court held that, where a suspect complies with an officer’s instructions in all respects except that he did not remain in his car and was shouting gibberish and hitting his own legs, the person is not engaging in “resistance.”

Ever since its invention in 1974, the taser has been the subject of close scrutiny by civil rights advocates and the media.  Since at least 2004, Amnesty International has expressed grave concerns about the ease with which police officers use taser to inflict serious bodily injury on individuals.  You can link to Amnesty International’s website discussing tasers here.

Taser International, the company that manufactures the taser for law enforcement agencies, has also been the subject of numerous lawsuits over the weapon.

CRW will follow this decision closely to see if it is appealed to the U.S. Supreme Court.  In the meantime, I have placed a PDF copy of the decision in the Box for you to download entitled “City of Cornado Taser Case.”

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Human Rights Photographs That Changed The World

Here is a collection of some of the most important civil or human rights photographs ever taken, with my editorial comments.  As is often the case, these photographs are significant because they shock our conscience and disturb the senses.  That can certainly be said for some of these.

If you have other photographs in mind as you review these, please do not hesitate to let me know.  It may be something worth blogging about in the future.

For those of you interested in the history of educational discrimination in the U.S., I have placed a photograph in the Box showing the state of segregation laws in the U.S. prior to Brown v. Board of Education from Wikipedia.

Never Doubt The Power Of A Single Individual To Effect Change

Never Forget The Dream

The Dream Cut Down

Separate But Equal Is ‘Inherently’ Unequal – Brown v. Board of Education

Human Rights Can Be Snuffed Out In An Instant

Human Rights Violations Touch All Ages…


Everywhere…


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