Category Archives: police misconduct

Mentally Ill Jailed More Often Than Hospitalized

As some of you may know, May is Mental Health Month.  If you are interested in mental health issues, you may want to check out this excellent resource, Mental Health America.  I will be adding them to the “Resources for Disabled Persons” page as well.  What I did not know until I reviewed the Mental Health America website is that May has been Mental Health Month since 1949.

I find that fact astonishing considering that bias (or, at best, discomfort with) mental health issues forced Missouri Senator Thomas Eagleton from the 1972 Democratic Presidential ticket alongside, George McGovern.  The fact that May has been Mental Health Month since 1949 also calls into question a shocking report from USA Today, released earlier this month.  You can link to the USA Today article here.

According to the article, a seriously mentally ill person in the USA is three times more likely to be incarcerated than hospitalized.  Furthermore, in no state was a seriously mentally ill person — someone with schizophrenia or bipolar disorder, for example — less likely to be incarcerated than hospitalized.  States that stood out at opposite ends of the spectrum, however, were North Dakota and Nevada.  In North Dakota, a mentally ill person was, at least, equally likely to be hospitalized as incarcerated.  In Nevada, however, a mentally ill person was 10 times more likely to be incarcerated than hospitalized.

Before any readers jump to the conclusion that this article is just one more piece of liberal dribble – these statistics were based on a report prepared by the National Sheriff’s Association, hardly a bastion of wild liberalism, and the Treatment Advocacy Center.  Kudos to the Sheriff’s Association for participating in this study.  In my opinion, it is incredibly important to see law enforcement taking a leading role in getting this kind of information out to the public because, unfortunately, law enforcement in many areas often lacks adequate training to appropriately deal with the mentally ill.  As a result, these citizens’ frequently find themselves abused, mis-used, wrongly incarcerated, and their conditions severely exacerbated.

My personal thanks to National Alliance on Mental Illness for circulating the USA Today article on LinkedIn.  For more information on the subject of mental health generally, please check out the website at National Institute of Mental Health.

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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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Attaching Tracking Device To Suspect’s Car Does Not Violate 4th Amendment

Today, the 9th Circuit issued an opinion in United States v. Juan Pineda-Moreno.  The issue in the case, as framed by the Court, is whether law enforcement officers violate an individual’s 4th Amendment rights by entering upon the curtilage of the individual’s home and attaching a mobile tracking device to the individual’s car.  For those readers unfamiliar with the term “curtilage,” it refers to the land and buildings immediately adjacent to the home and which has traditionally received varying degrees of protection under the 4th Amendment.

Beginning in May 2007, Drug Enforcement Agency (DEA) agents observed the Defendant purchasing large quantities of a particular type of fertilizer at Home Depot.  The type of fertilizer purchased by the Defendant is one associated with the growing of marijuana.  Receiving information from another source, the agents concluded that Defendant and his associates were operating a marijuana grow operation out of a trailer that Defendant rented.  Locating the trailer, the agents placed mobile tracking devices on Defendant’s automobile over a 4-month period.  On occasion, the mobile tracking devices were placed on the auto when it was parked either on the public street or in a public parking lot.  On at least two occasions, however, the agent affixed the device to the auto while it was parked in the curtilage of Defendant’s home, a few feet from the doorway.

Defendant argued that the agent’s violated his 4th Amendment rights because they invaded an area of his property where he had a reasonable expectation of privacy.  The 9th Circuit rejected this argument, construing the curtilage of the Defendant’s home as being only “semi-private.”  Furthermore, the Court stated that, to demonstrate that the agents invaded an area that was protected by the 4th Amendment, the Defendant needed to produce evidence supporting a reasonable expectation of privacy.  Among the types of evidence that might have swung the case in the other directions was “no trespassing signs,” enclosures, limited visibility from street, private nature of activities performed on the curtilage.

I have placed a copy of the decision in the Box for those who are interested in reading the full text of the Court’s opinion and analysis.

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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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