Archive for May, 2010

it's pretty astonishing that the jamaican police are killing

Saturday, May 29th, 2010

it's pretty astonishing that the jamaican police are killing dozens of people trying to arrest one drug kingpin. and also that he has not been captured. and also that they are gearing up for more. but i'll tell you this, the whole thing is right out of perry henzell's great reggae film the harder they come.



In Spite of State Law, Maryland Law Enforcement Officials Still Arresting, Charging People for Recording Cops

Saturday, May 29th, 2010

In a column last month I wrote about Anthony Graber, a Maryland man who was arrested for posting a video of a traffic stop to YouTube. Graber was pulled over on his motorcycle by Maryland State Trooper Joseph David Ulher. Uhler drew his gun during the stop. Graber was wearing a camera on his helmet. Graber thought Uhler’s actions were excessive, so he posted the video to the Internet. Days later, police raided the home of Graber’s parents. Graber was arrested, booked, and jailed. He was charged with violating Maryland’s wiretapping statute. In an interview he gave to blogger Carlos Miller shortly after, Graber said, “The judge who released me looked at the paperwork and said she didn’t see where I violated the wiretapping law.”

In my previous column, I interpreted that to mean the judge had dropped the charge. Apparently that isn’t the case. Graber is due in court next week. He faces up to five years in prison. State’s Attorney Joseph Cassilly has also charged Graber with “Possession of an Interception Device.” That “device” would be Graber’s otherwise-perfectly-legal video camera.

Graber’s case is starting to spur some local and national media discussion of the state’s wiretapping law. As I mentioned in my column last month, his arrest came at about the same time the Jack McKenna case broke nationally. McKenna, a student at the University of Maryland, was given an unprovoked beating by police during student celebrations after a basketball game last February. McKenna would probably still be facing criminal charges and the cops who beat him would likely still be on the beat were it not for several cell phone videos that captured his beating. According to Cassily’s interpretation of the law, if any of those cell phones were close enough to record audio of the beating, the people who shot the videos are felons.

Now we have another video of an arrest during the Preakness Stakes in which a Baltimore police officer can be heard telling the camera-holder, “Do me a favor and turn that off. It’s illegal to record anybody’s voice or anything else in the state of Maryland.”

That simply isn’t true, and it’s outrageous that Maryland law enforcement keeps perpetuating this myth. Perhaps that officer was merely misinformed. But Maryland police spokesmen and prosecutors are giving the impression that the state’s wiretapping law is ambiguous about recording on-duty police officers. It really isn’t. They’ve just chosen to interpret it that way, logic and common sense be damned.

Maryland is an all-parties-consent state, which means you have to get permission from all parties to a conversation before you can record it. But unlike Illinois and Massachusetts, Maryland’s law does include a privacy provision. That is, if the non-consenting party does not have a reasonable expectation of privacy with respect to the conversation that has been recorded, there is no violation of the law. State and federal courts across the country have determined that there is no reasonable expectation of privacy in public spaces. This is why someone can snap your photo in public without your consent.

The Graber-Uhler traffic stop would fall under the “oral communication” provision of the law. Here’s how the statute defines that term:

“Oral communication” means any conversation or words spoken to or by any person in private conversation.

Seems pretty clear, doesn’t it? Graber is now represented by the Maryland ACLU. Yesterday, I spoke with David Rocah, who is handling Graber’s case. “To charge Graber with violating the law, you would have to conclude that a police officer on a public road, wearing a badge and a uniform, performing his official duty, pulling someone over, somehow has a right to privacy when it comes to the conversation he has with the motorist,” Rocah says.

Not to mention the gun. Under Casilla’s view of Maryland law, not only is a cop permitted to pull a gun on you for a misdemeanor traffic offense, but his privacy rights protect you from documenting the encounter.

To date, no Maryland court has ruled that a police officer has a right to privacy in his on-duty interactions with the public. I’ve been researching this issue for a couple of months now, and to my knowledge no other state or federal court has, either. Massachusetts courts have upheld the convictions of people charged with recording cops under the state’s wiretapping laws, but Massachusetts does not have a “reasonable expectation of privacy” provision in its law. Illinois passed the toughest wiretapping law in the country specifically because the Illinois Supreme Court ruled that cops have no right to privacy in their interactions with the public. In response, the state legislature revoked the expectation of privacy provision from the wiretapping law for the express purpose of making it illegal to record cops on the job.

But in Maryland it actually gets even more absurd.

In 2000, Maryland Attorney General Joseph Curran, Jr. was asked to issue his opinion (PDF) on whether a plan by the Montgomery County Police Department to install recording devices on patrol officers would violate the wiretapping statute. To date, Curran’s opinion has not been modified or changed.

Curran determined that because protocol for the plan required officers to inform motorists they were being recorded, it did not. But Curran was also asked to determine what would happen if an officer inadvertently recorded someone without informing him first. Curran again said the officer would not have violated the statute. But a footnote to that opinion included the following language:

It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as “private conversations.”  For example, any driver pulled over by a uniformed officer in a traffic stop is acutely aware that his or her statements are being made to a police officer and, indeed, that they may be repeated as evidence in a courtroom.  It is difficult to characterize such a conversation as “private.”

I suspect most people would find this to be common sense. No one expects what they say to a cop during a traffic stop to be private. But when you combine that with how some Maryland cops and prosecutors are interpreting the law, such as in Graber’s case, you get a perverse result: When a cop pulls you over or detains you for questioning, he—the public servant with the badge and the gun—retains a right to privacy for the entire encounter. You don’t.

This does not sound like a serious interpretation of the law. But it’s apparently the interpretation among Maryland law enforcement officials. A cynic might conclude that law enforcement officials in Maryland are reacting to the McKenna embarrassment by threatening and cracking down on anyone who videotapes on-duty cops, and they’ll interpret the law in whatever way allows them to do so. At least until a court tells them otherwise.

Whatever their motivation, their legal justification is dubious. The McKenna case is a strong argument in favor of more citizen monitoring of on-duty police. The police not only beat the kid, they then lied about it in police reports. The security camera footage of McKenna’s beating, which is controlled by University of Maryland Campus POlice, mysteriously disappeared. The officer in charge of the camera system is married to one of the officers involved in the beating. Does anyone really think the charges against McKenna would have been dropped—and the officers who beat him suspended—if it weren’t for the cell phone videos?

There are strong constitutional arguments in favor of a basic right to record on-duty police officers. But the prosecution of Anthony Graber is also wrong by any reasonable interpretation of state law, and by any sane concept of good public policy. This is the state that’s home to the notorious Prince George’s County Police Department, for God’s sake—the department that spent five years under federal oversight because of the repeated use of excessive force among its officers.

Maryland Attorney General Doug Gansler should put an end to this faux ambiguity and declare that Marylanders who record on-duty cops are breaking no laws, much less committing felonies. He should also make it clear that so long as they don’t physically interfere with an arrest or police action, they also are at no risk of having their recording equipment confiscated or destroyed.

If he doesn’t, the state legislature should do it for him.

Friday’s Finest Flickr Slideshows

Friday, May 28th, 2010
While experimenting with Cop Block’s new Flickr account, I created some nifty looking slide shows based on the April and May editions of Friday’s Finest. I’m actually pretty disappointed with the way they came out. You have to full screen them and select “show info” to read the descriptions that accompany the pictures (most of the [...]

“LA cop commission protects bad cops”

Friday, May 28th, 2010
I found this post (below) by Steven Greenhunt, formerly of the Orange County Register (for 11 yrs), on Cal Watchdog.  He discusses how police commissions fail at disclosing police brutality issues due to a lack of transparency.  I think Greenhut is spot on in his assessment of these so-called ‘heroes.’ Apparently, despite oversight commissions, the public [...]

Morning Links

Friday, May 28th, 2010

Morning Links

Thursday, May 27th, 2010

Police investigate officer who struck suspect for spitting – Las Vegas Review – Journal

Wednesday, May 26th, 2010

Police investigate officer who struck suspect for spitting
Las Vegas Review - Journal
A Las Vegas police officer is being investigated by the department for hitting a handcuffed suspect in the face last week, a department ...

and more »

“ACLU: Pa. Police [Wrongfully] Cite Hundreds Just for Cursing”

Wednesday, May 26th, 2010
I found this article and had to post it here.  It seems that not only is flipping off cops ‘legal’ but so is swearing at them, even profitable at times.  Though we don’t recommend it. By MaryClaire Dale – associated press Pennsylvania police wrongly charged hundreds of people with disorderly conduct for swearing, the American [...]

A Critical Look at TASER Policy and Effects

Tuesday, May 25th, 2010
Thanks to Eddie G. Griffin (BASG) for providing the following:
May 10, 2:54 AM · Edward Nelson - NY Public Policy Examiner
With the recent Ninth Circuit Court of Appeals decision in Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009), law enforcement heads across the nation are gradually revising their use of force policies surrounding TASER deployment.

The Bryan Court dealt with a 21-year-old Carl Bryan who exited his vehicle at a distance of 20 to 25 feet away from Officer Brian McPherson who had pulled Carl Bryan over for a traffic violation. Standing on the asphalt ground Carl Bryan was wearing tennis shoes and boxer shorts and was positioned with his back facing Officer McPherson. At that point, Officer McPherson deployed his TASER causing Carl Bryan to suffer a non-minor injury as a result of falling face first onto the asphalt fracturing four of his teeth and damaging his face. Finding that a jury could conclude that Officer McPherson used excessive force in violation of the Fourth Amendment, the court allowed Carl Bryan’s lawsuit to proceed to trial and denied Officer McPherson’s request for summary judgment on qualified immunity grounds. A reasonable officer would have known that in a situation where force is at its lowest, the target is a nonviolent and stationary misdemeanant, would have concluded that deploying intermediate force without warning was not justified.

If you didn’t know, TASER is an acronym for Thomas A. Swift’s Electronic Rifle.

What’s significant about the Bryan Court’s decision is that it recognized that TASERs can actually cause death. In the past, TASER International, Inc. had a practice of suing researchers for making that conclusion. In fact, some researchers have accused TASER International, Inc. of employing intimidation tactics to discourage and prohibit them from publishing research that contends with the “less than lethal” stigmatization strategically associated with TASERs. Normally, researchers make findings and subject their work to the criticisms of their peers if their findings cannot be replicated. Why does that concept not apply to TASERs? Rick Smith, CEO of TASER International, must evaluate his SWOT analysis to include a new externality. America’s courts are now an externality that Mr. Smith must recognize as one of TASER International’s weaknesses and threats. The author John Grisham shows how easy it is for a company to purchase a judge to favor its position in his latest book titled, “The Appeal.” However, that would be a serious invocation of Game Theory on the part of TASER International.

Nationally, TASER International has placed itself in a powerful, yet, unique position of steering policy for law enforcement agencies nationwide. Law enforcement heads are forced to rely entirely on TASER International’s training and policies on use, deployment, and research methods. Unfortunately, the Chiefs of Police that use TASERs have delegated their duty to protect the public to a Fortune 500 business like TASER International whose sole concern is its bottom line. A government functions on inputs that maximize outputs. Apparently the TASER is the input and the death of a citizen is the output. Even an insignificant number like 1% of the nation dying from in custody death syndrome and excited delirium syndrome is too much. Stated another way, the trade off is more officers living and a marginal number of citizens dying. As government officials, law enforcement administrators should be concerned with protecting the individual rights of each individual citizen; a publicly traded IPO company like TASER International, trading under the ticker symbol TASR, is not concerned with individual rights.

While TASER International can write-off the deaths of 334 citizens mentioned by Amnesty International between 2001 and 2008 as collateral damage, law enforcement administrators must consider the individual rights of each person on a case-by-case basis. If not, they are deliberately indifferent to the Constitutional rights of the population of citizens they are hired to serve. Everyday anecdotal evidence is mounting and increasingly shows that TASERed citizens are dying in the custody of police officers. However, with TASER International steering the policies of law enforcement on TASER usage and training, the in custody death syndrome immediately following TASER usage is remarkably written-off as if death is the cost of not complying with police officers. If the officer, victim, or bystander is not facing an imminent threat from a subject, the deployment of a TASER would be unreasonably excessive. On March 3, 2010, an officer TASERed a 17 year old Philadelphia Phillies fan simply for running on the baseball field. The incident has caused a lot of public clamor because the officer, a victim, nor bystander was threatened by the 17 year old when he ran onto the baseball field. Unfortunately, the lesson behind the incident is that it shows how officers arbitrarily and capriciously use their TASERs.

Law enforcement officials have tenaciously maintained that TASERs save lives. Agreed! When used appropriately, TASERs can save lives. But an inappropriate use of a TASER by law enforcement is a rare finding. Statistically, the chance of finding a citizen dead from in custody death syndrome is greater than finding an officer improperly used a TASER. Even law enforcement officers have sued TASER International claiming that they were injured by a TASER during their training. In another instance, an officer’s TASER malfunctioned as he pursued a perpetrator and he was shot six times. TASER International was sued as a result. Therefore, the claims against TASER International and law enforcement aren’t isolated to members of the public. Moreover, it begs the question of whether TASER International knows, or, expects deadly malfunctions in its TASER product prior to marketing.
TASER International has warned that TASERs can contribute in death if the following variables are present within a TASERed subject:

alcohol intoxication
cocaine
methamphetamine
So why are officers deploying TASERs on drug abusers when there is a real possibility of death occurring? If law enforcement agencies have no policy directing officers to refrain from deploying their TASERs on the above category of individuals, the answer is clear: It’s because their municipality has become deliberately indifferent to the individual rights of intoxicated /drugged citizens. A well informed law enforcement agency would know from anecdotal evidence collected on excited delirium syndrome and in custody death syndrome that those citizens who are intoxicated, high on cocaine or methamphetamine fall within a category of individuals that are likely to die post-TASER deployment. Unfortunately, post-TASER deployment has a medical aspect that makes most law enforcement administrators appear acutely obtuse and woefully incapable of understanding the injurious nature of TASER weaponry. Over the years, a medical examiner’s finding of excited delirium syndrome or in custody death syndrome is the only justification required to relieve an officer of liability for a citizen’s death. Today, excited delirium syndrome is a questionable medical condition in the medical community.

Lawyers that are worth their salt have quickly learned that the preparation of litigation against TASER International and law enforcement requires that they be as savvy as TASER’s medical experts regarding excited delirium syndrome and in custody death syndrome. Commonly, the coups de grace in TASER litigation involves a showing of death or non-minor injury resulting from brain injury, cardiac arrest, short term loss of memory, cardiac infarction, and metabolic acidosis proximately caused by a TASER. As alluded to earlier, TASER International is an aggressive publicly traded company concerned about its bottom line and answers to a board of directors. To maintain a pristine public image, TASER International strategically uses sneaky semantics, omissions, lawsuits, dry threats, scandalous and vexatious comments to fend off any undesired comments that can potentially have a negative economic impact on its TASER product. TASER International has successfully sued medical examiners to change the cause of death on a death certificate from being associated with a TASER to being “accidental.”

Unlike most weapons that cause visible superficial wounds, the TASER permeates the human body internally using voltage and amperes to overwhelm neurotransmitters emanating from the brain. In other words, it has a subtle way of causing damage to the body’s internal biological functions. It’s the fluctuating AC (alternative current) power source that causes the muscles within the body to experience a condition called tetany. Meaning the AC power source actually causes the muscles within the body to contract when in contact with an AC power source. However, a DC (direct current) power source pushes a person away when contact is made. The electricity from a TASER travels through the body looking for a place to ground. However, for the brief moment that it takes residence within the human body, the electricity from the TASER quickly transforms plasma glucose into lactic acid which ultimately forms a condition called metabolic acidosis. It’s important to note that a primary source of energy for the brain is glucose. Now imagine your brain’s primary source of energy being transformed into lactic acid. That’s a problem! Even a person with minimal medical experience would know that the heart is the biggest muscle in the body. Yet, researchers are divided as to whether a TASER can cause cardiac arrest.

Comparatively, TASER litigation reminds me of the long and hard fight attorneys had with cigarette companies. Remember the days when cigarette companies said their product was safe? Well, the federal government must have the same feeling because the National Institute of Justice is currently soliciting to fund research for a “less-lethal” weapon that is safer than a TASER. This article is dedicated to the memory of all those American citizens who gave their lives so law enforcement officers could enjoy deploying their new toys in the absence of perceiving an imminent threat to themselves, bystanders or victims. It’s because all of you existed that others are inspired to find the truth concerning your deaths. May your souls find rest!


A Critical Look at TASER Policy and Effects

Tuesday, May 25th, 2010
Thanks to Eddie G. Griffin (BASG) for providing the following:
With the recent Ninth Circuit Court of Appeals decision in Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009), law enforcement heads across the nation are gradually revising their use of force policies surrounding TASER deployment.

The Bryan Court dealt with a 21-year-old Carl Bryan who exited his vehicle at a distance of 20 to 25 feet away from Officer Brian McPherson who had pulled Carl Bryan over for a traffic violation. Standing on the asphalt ground Carl Bryan was wearing tennis shoes and boxer shorts and was positioned with his back facing Officer McPherson. At that point, Officer McPherson deployed his TASER causing Carl Bryan to suffer a non-minor injury as a result of falling face first onto the asphalt fracturing four of his teeth and damaging his face. Finding that a jury could conclude that Officer McPherson used excessive force in violation of the Fourth Amendment, the court allowed Carl Bryan’s lawsuit to proceed to trial and denied Officer McPherson’s request for summary judgment on qualified immunity grounds. A reasonable officer would have known that in a situation where force is at its lowest, the target is a nonviolent and stationary misdemeanant, would have concluded that deploying intermediate force without warning was not justified.

If you didn’t know, TASER is an acronym for Thomas A. Swift’s Electronic Rifle.

What’s significant about the Bryan Court’s decision is that it recognized that TASERs can actually cause death. In the past, TASER International, Inc. had a practice of suing researchers for making that conclusion. In fact, some researchers have accused TASER International, Inc. of employing intimidation tactics to discourage and prohibit them from publishing research that contends with the “less than lethal” stigmatization strategically associated with TASERs. Normally, researchers make findings and subject their work to the criticisms of their peers if their findings cannot be replicated. Why does that concept not apply to TASERs? Rick Smith, CEO of TASER International, must evaluate his SWOT analysis to include a new externality. America’s courts are now an externality that Mr. Smith must recognize as one of TASER International’s weaknesses and threats. The author John Grisham shows how easy it is for a company to purchase a judge to favor its position in his latest book titled, “The Appeal.” However, that would be a serious invocation of Game Theory on the part of TASER International.

Nationally, TASER International has placed itself in a powerful, yet, unique position of steering policy for law enforcement agencies nationwide. Law enforcement heads are forced to rely entirely on TASER International’s training and policies on use, deployment, and research methods. Unfortunately, the Chiefs of Police that use TASERs have delegated their duty to protect the public to a Fortune 500 business like TASER International whose sole concern is its bottom line. A government functions on inputs that maximize outputs. Apparently the TASER is the input and the death of a citizen is the output. Even an insignificant number like 1% of the nation dying from in custody death syndrome and excited delirium syndrome is too much. Stated another way, the trade off is more officers living and a marginal number of citizens dying. As government officials, law enforcement administrators should be concerned with protecting the individual rights of each individual citizen; a publicly traded IPO company like TASER International, trading under the ticker symbol TASR, is not concerned with individual rights.

While TASER International can write-off the deaths of 334 citizens mentioned by Amnesty International between 2001 and 2008 as collateral damage, law enforcement administrators must consider the individual rights of each person on a case-by-case basis. If not, they are deliberately indifferent to the Constitutional rights of the population of citizens they are hired to serve. Everyday anecdotal evidence is mounting and increasingly shows that TASERed citizens are dying in the custody of police officers. However, with TASER International steering the policies of law enforcement on TASER usage and training, the in custody death syndrome immediately following TASER usage is remarkably written-off as if death is the cost of not complying with police officers. If the officer, victim, or bystander is not facing an imminent threat from a subject, the deployment of a TASER would be unreasonably excessive. On March 3, 2010, an officer TASERed a 17 year old Philadelphia Phillies fan simply for running on the baseball field. The incident has caused a lot of public clamor because the officer, a victim, nor bystander was threatened by the 17 year old when he ran onto the baseball field. Unfortunately, the lesson behind the incident is that it shows how officers arbitrarily and capriciously use their TASERs.

Law enforcement officials have tenaciously maintained that TASERs save lives. Agreed! When used appropriately, TASERs can save lives. But an inappropriate use of a TASER by law enforcement is a rare finding. Statistically, the chance of finding a citizen dead from in custody death syndrome is greater than finding an officer improperly used a TASER. Even law enforcement officers have sued TASER International claiming that they were injured by a TASER during their training. In another instance, an officer’s TASER malfunctioned as he pursued a perpetrator and he was shot six times. TASER International was sued as a result. Therefore, the claims against TASER International and law enforcement aren’t isolated to members of the public. Moreover, it begs the question of whether TASER International knows, or, expects deadly malfunctions in its TASER product prior to marketing.
TASER International has warned that TASERs can contribute in death if the following variables are present within a TASERed subject:

alcohol intoxication
cocaine
methamphetamine
So why are officers deploying TASERs on drug abusers when there is a real possibility of death occurring? If law enforcement agencies have no policy directing officers to refrain from deploying their TASERs on the above category of individuals, the answer is clear: It’s because their municipality has become deliberately indifferent to the individual rights of intoxicated /drugged citizens. A well informed law enforcement agency would know from anecdotal evidence collected on excited delirium syndrome and in custody death syndrome that those citizens who are intoxicated, high on cocaine or methamphetamine fall within a category of individuals that are likely to die post-TASER deployment. Unfortunately, post-TASER deployment has a medical aspect that makes most law enforcement administrators appear acutely obtuse and woefully incapable of understanding the injurious nature of TASER weaponry. Over the years, a medical examiner’s finding of excited delirium syndrome or in custody death syndrome is the only justification required to relieve an officer of liability for a citizen’s death. Today, excited delirium syndrome is a questionable medical condition in the medical community.

Lawyers that are worth their salt have quickly learned that the preparation of litigation against TASER International and law enforcement requires that they be as savvy as TASER’s medical experts regarding excited delirium syndrome and in custody death syndrome. Commonly, the coups de grace in TASER litigation involves a showing of death or non-minor injury resulting from brain injury, cardiac arrest, short term loss of memory, cardiac infarction, and metabolic acidosis proximately caused by a TASER. As alluded to earlier, TASER International is an aggressive publicly traded company concerned about its bottom line and answers to a board of directors. To maintain a pristine public image, TASER International strategically uses sneaky semantics, omissions, lawsuits, dry threats, scandalous and vexatious comments to fend off any undesired comments that can potentially have a negative economic impact on its TASER product. TASER International has successfully sued medical examiners to change the cause of death on a death certificate from being associated with a TASER to being “accidental.”

Unlike most weapons that cause visible superficial wounds, the TASER permeates the human body internally using voltage and amperes to overwhelm neurotransmitters emanating from the brain. In other words, it has a subtle way of causing damage to the body’s internal biological functions. It’s the fluctuating AC (alternative current) power source that causes the muscles within the body to experience a condition called tetany. Meaning the AC power source actually causes the muscles within the body to contract when in contact with an AC power source. However, a DC (direct current) power source pushes a person away when contact is made. The electricity from a TASER travels through the body looking for a place to ground. However, for the brief moment that it takes residence within the human body, the electricity from the TASER quickly transforms plasma glucose into lactic acid which ultimately forms a condition called metabolic acidosis. It’s important to note that a primary source of energy for the brain is glucose. Now imagine your brain’s primary source of energy being transformed into lactic acid. That’s a problem! Even a person with minimal medical experience would know that the heart is the biggest muscle in the body. Yet, researchers are divided as to whether a TASER can cause cardiac arrest.

Comparatively, TASER litigation reminds me of the long and hard fight attorneys had with cigarette companies. Remember the days when cigarette companies said their product was safe? Well, the federal government must have the same feeling because the National Institute of Justice is currently soliciting to fund research for a “less-lethal” weapon that is safer than a TASER. This article is dedicated to the memory of all those American citizens who gave their lives so law enforcement officers could enjoy deploying their new toys in the absence of perceiving an imminent threat to themselves, bystanders or victims. It’s because all of you existed that others are inspired to find the truth concerning your deaths. May your souls find rest!