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Vahakyla posted:http://www.cnn.com/2015/02/17/us/officer-dashcam-video-excessive-force-lawsuit/index.html Essentially, when the DA says they can't prosecute this absent the dash cam, the DA is telling an overt and obvious lie.
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Feb 26, 2015 01:20
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Dr Pepper posted:So wait, a group of cops and prosecutors decided to try and ruin a man's life... because he told one cop about a lawsuit? He wasn't even the one suing them! Literally shooting the messenger. Filing bogus obstruction, resisting arrest, and assault/battery charges is a the first step cops follow when they're faced with excessive force suits. Many states make ANY battery to a cop on the job a felony, and obstruction and witness intimidation charges almost always have a felony flavor. These charges gives them leverage over civil and possible civil plaintiffs, and often lets them to leverage bogus charges against the dismissal of civil lawsuits. I would hazard a guess that there was a lot more to Mr. Dezinger's nephew's brutality suit, and that there is a gag order in place, because it never comes up in the story. I'd also note that the felony charges were filed ONE YEAR after the process was served, which could correspond pretty well to the lifespan of a civil lawsuit. But, no, this was not some petty retaliation against a random process server, this was the local cops and DA's office targeting a family member of a civil plaintiff in an effort to force the plaintiff to back off on his claim. It's petty, cruel, and criminal, but it's also a lot more calculated than the story lets on. Of course, if any non-prosecutor (real) lawyer ever backed a bogus story under these circumstances, assisting in fraudulent barratry, it really wouldn't be an open question what would happen to that attorney. A lucky outcome would be a suspension from practice so long as to essentially be disbarment. That is to say nothing of the criminal charges that would follow. Jail or prison time would not be outside the realm of possibility. And none of these consequences would be hypothetical or abstract -- your rear end would be toast, and fast. Edit - One of the perjuring DA's still has a job on the taxpayer dime in that jurisdiction.
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Feb 27, 2015 07:03
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quote:The arrest is now the subject of an internal review requested by police Chief Cameron McLay, who “also says in his comments about this matter that he believes everything is in compliance, but he just wants to make sure,” public safety spokeswoman Sonya Toler said. “It's understandable that untrained people would question the use of something they’re not trained in.” I always find this sort of thing charming, as though cops completed advanced coursework in the more complex comparative subtleties of beating the poo poo out of people who annoy them. Like if I walked in on a plumber screaming in rage and whaling away at my boiler with a basin wrench, I guess I should just turn around and walk the other way while the professional does his thing.
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Feb 28, 2015 01:13
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Nonsense posted:What are the laws surrounding the amount of time you can be held in jail? At ye olde common law, misdemeanor offenses are punishable by no more than 1 year of incarceration. Felonies at ye olde common law are punishable by anything up to X number of years, usually measured in multiples of five. For example, common law larceny is punishable by up to 20 years of incarceration. The overwhelming majority of states have largely done away with common law through the implementation of statutory regimes, however, which supplant common law offenses. The only remnant of common law sentencing you'll find in most states is the misdemeanor/felony distinction, which is so ingrained into the American legal system that offenses which are punishable by more than a year are often considered as or treated as felonies for attenuated purposes. For example, if State X criminalizes doing Y with a maximum penalty of 2 years incarceration, and you are here on a green card, then a conviction for Y will be treated as a felony for immigration purposes. Practically speaking, the laws surrounding what theoretical time you can spend in custody are driven by sentencing guidelines. Many states, in an effort to drive courts to harsher sentences, enacted these back in the 80's and 90's, and actually made them mandatory on state and federal judges. SCOTUS found this practice unconstitutional, however, so now the guidelines remain in "discretionary" form, meaning that a judge is "free" to ignore them. The amount of time you can reasonably expect to serve on conviction has much more to do with whatever bureaucrats or state authorities decide is appropriate per points-based guidelines worksheets. So, you take someone's prior convictions, add points for that, take whatever features of an offense that particular worksheet page incorporates into the guidelines range, add those up, and so on, until you come to a point score which corresponds to a sentencing range of, say, 1 year and 1 month to 4 years. Then you get a sentence in that range. Departures from the prescribed ranges are exceedingly rare. Every state and the federal government has a giant web of often overlapping statutes. In practice, what you are actually looking at serving on conviction has far less to do with statutes and laws and other substantive, comprehensible legal constructs, though. Because there is always some wiggle room in what prosecutors can choose to charge and not to charge, it is typically the prosecutor who is invested with the authority to decide a defendant's sentencing range by choosing how they will bring their case to hit whichever checkboxes they like on sentencing guidelines. quote:The former is effectively limited only by the length of your life, although jails are holding facilities for short sentences and for people awaiting trial, with sentences longer than a year typically being served in state prisons. For the latter, it depends how quickly the defendant is willing to go to trial. Defendants being held without bond can demand a speedy trial, the federal right to a speedy trial is functionally meaningless and vague but every state usually sets comparatively strict specific limits. For example, in Florida it's 90 days from arrest for a misdemeanor, 175 days for a felony. However, it's very common for defendants to waive their speedy trial rights to get more time to prepare. It's common for accused murderers to sit in jail for years (at their own attorney's request) as their defense is prepared. I'd also note that many states have a speedy trial right which only inheres to the defendant's right to plead guilty, especially at the district court/misdemeanant level. That is, you can wait 2-3 weeks for Ofc Soandso's next Friday court availability...or you can plead guilty tomorrow and go home. It's a pretty slick system. Practically speaking, the enormity of things which act to waive speedy trial is so extensive, and trial and appellate courts so reluctant to recognize speedy trial violations, that the right is almost universally meaningless at the state and federal levels. This is particularly true where prosecutors can simply nolle prosse without implicating double jeopardy, regardless of how much time someone spends in custody before they elect to do so. Randbrick fucked around with this message at 04:33 on Mar 4, 2015 |
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Mar 4, 2015 04:31
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prussian advisor posted:What kind of barbaric shithole state do you practice in man? I can't conceive of a state system that allows prosecutors to waive a defendant's right to speedy trial on their behalf, or prioritizes witness availability. In Florida, you demand speedy once it has run, and the state has a 15 day recapture period to try you. If it doesn't, regardless of whether it's the state's "fault" or not (witness availability or no free space on a judge's schedule) the case is dismissed with prejudice. Period, no exceptions. Defense counsel are generally placed into a procedural posture where almost anything they do other than opposing continuance will in some respect waive speedy trial protections. Practically speaking, you would need a fantastically inept prosecutor to actually endanger a case by speedy trial when it is so much easier to adopt a catch and release policy. quote:Nolle prosses don't implicate double jeopardy in any American system I'm aware of (jeopardy attaches when the jury is sworn, not when the case is filed,) but if you nolle prosse after speedy has run, you're foreclosed from refilling forever. It's where cases dismissed for speedy trial violations are dismissed without prejudice that the real bullshit begins, but the only system I'm aware of where that happens is the federal one, although I'm sure there are others. I do not mean to say that the nolle prosse implicates double jeopardy on a de jure level. The problem is that courts do not recognize the de facto harm that defendants face in a system where the prosecution has a largely unfettered ability to skirt the actual protections which the 5th Amendment is supposed to guarantee by pressing a reset button on their litigation. The Constitution may not comprehend that people lose their jobs and their homes by pre-trial incarceration, nor that even a $500 fee on a secured bond is often more than many can afford. But defendants understand pretty well that a prosecutor has the power to simply restart a case if they don't feel like preparing it in advance of trial, and that if they fight those cases they can find themselves arrested again at some point in the near future, with no advanced warning but what the daily warrant report may provide. That is an extremely compelling form of leverage, and the only actual protection against its compulsive force is a trial court level judiciary willing to stand up to the local District/Commonwealth Attorney's office.
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Mar 4, 2015 23:31
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Farmer Crack-rear end posted:How often can prosecutors hit that "reset button"? Could a malicious prosecutor feasibly re-file charges and drop them as many times as they wished without legal repercussion? In practice, nolle prossequi must be supported by "good cause," which is defined almost entirely by judicial discretion, and is the same basis necessary to sustain a motion to continue. In theory, a prosecutor could do this indefinitely. The only hard limits are judicial and political -- a judge would have to stand up and refuse to grant the motion(s) to nolle pross, or public pressure would have to bear on the CWA/DA office to stop the practice. Unless a given state's criminal procedure provides statutory protection beyond that, there is no other limit.
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Mar 5, 2015 01:17
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Genocide Tendency posted:Sooooo.. Let me follow this.. A part of me wants to wish you had to suffer the continual indignity of being subjected to some hick rear end in a top hat's high school power trip, while he hides behind a badge, a gun, and his essential dishonesty, but you are just too loving tiresome to engender ill will.
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Aug 5, 2015 18:17
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Are people still pretending that department didn't produce the world's most pitiful, obvious edited copy of the video where they dub out the actual audio of the arrest and replace it with the cop literally describing the situation as it would appear in his police report? And are you still pretending that the issue here is not, "You can put that cigarette out now," but rather, "Well, you can step right out of the car now?" As though the two commands (and they were commands, administered under color of law) were the same, or as though either were lawful? Why would you want to pretend such a thing? And why would you insist on being so tiresome and trite doing so? If you're so overtly eager to be a peon lickspittle, go be a peon lickspittle. Please, though, stop trying to drag us all along with you. You can do obeisance all by yourself.
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Aug 5, 2015 18:29
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I don't know Bland's backstory and life and times, beyond the fact she'd recently landed a new job at her alma mater. But I know from that video that she was an assertive woman with a backbone who did not tolerate or put up with bullshit from tinpot tyrants and bullies. That's a truly impressive and rare quality. Whatever happened to her, whether depression or suicide (likely aggravated by being subjected to false arrest from some upjumped bully) I do not know. But the one window I have into her behavior and demeanor frankly impresses me. Similarly, I have one window into that cop's behavior and demeanor. His behavior was poor. He was petulant, arrogant, and boorish, at best. He was criminal at worst. The fact that you give him the benefit of the doubt, and deny the same to her, when all you have is that one window into their respective behaviors in that one single, brief encounter is staggering to me. It makes me wonder if you have similar problems watching movies or reading books. I seriously have to wonder if you can identify who the bad guys or good guys are in children's stories.
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Aug 5, 2015 18:37
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Genocide Tendency posted:Not what he said. Tiresome, man. Tiresome.
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Aug 5, 2015 18:39
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Genocide Tendency posted:Like crying racism because [FILL THIS IN WITH poo poo OTHER PEOPLE ACTUALLY ARGUED TO YOU IF YOU DO NOT WANT TO BE AN ANNOYING PRICK]? quote:A request you can decline!
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Aug 5, 2015 18:42
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Genocide Tendency posted:....she was being a belligerent gently caress over getting a ticket for not following traffic laws....
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Aug 5, 2015 18:52
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Genocide Tendency posted:You don't understand search and seizure laws. I'll be here. Unlike Ms. Bland, I have not yet been put in my place.
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Aug 5, 2015 18:56
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Genocide Tendency posted:Suicide is a terrible thing. Mental health issues like depression need to be addressed better. But that doesn't mean someone who committed suicide is incapable of being called belligerent when they got lovely with a cop during a traffic spot! As it stands, you are reinventing facts, spinning nonsense, pretending to legal knowledge you clearly do not have, and...really just being an rear end. You are doing so in an apparent effort to insult a dead woman on false terms. That's a very weird thing to be about, even on a Wednesday.
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Aug 5, 2015 19:03
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Jarmak posted:If you're going to be a prick you should probably cite the right case, that's from Mendenhall There are dozens of traffic stop arrest cases just at the Supreme Court level, and hundreds to thousands at the state court levels. There is no "right" case. That's why you follow the case citations. quote:Because someone "just DIED" doesn't excuse their behavior of being lovely to a cop because they got pulled over.
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Aug 5, 2015 19:14
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Jarmak posted:You cited a 1938 case about right to counsel ???? There are actually at least three dozen people named Rodriguez in the territorial United States. At least four have been known to be in court at some point.
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Aug 5, 2015 19:17
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Zerbst is an origin case for the terms which define voluntary and intelligent in the context of waiving rights.
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Aug 5, 2015 19:22
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Jarmak posted:Hmm referencing Rodriguez is interesting though, there's a good case to be made there that since the citation was already written the authority for the temporary seize no longer applied and therefore neither did Mimms. You could make an argument that she wasn't under arrest, and you might find a trial court that would buy it. But unless there's been some new erosion in the reasonable person standard, the bright line I've always followed is that a traffic stop becomes an arrest the moment you're told to get out of the car.
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Aug 5, 2015 19:32
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Jarmak posted:Seriously? You're trying to be that much of a dick? quote:The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. quote:Can't an officer order you out of your car for "officer safety" reasons without needing to arrest you or needing any sort of reason? I've been ordered out during a traffic stop so that I could be ticketed a safer distance away from the roadway (or at least that was the excuse) and that was in 2008. On review of the video, I don't see what possible safety concerns could be raised with a straight face. I have seen people on the internet elsewhere suggest that Ms. Bland's cigarette was or should be considered a "weapon." But that's just really facile, even by police conduct standards. I haven't seen that argued here. quote:An arrest is a seizure but not every seizure is an arrest, pulling you over in the first place constitutes a seizure. I have no idea why you think getting ordered out of the car constitutes an arrest, Mimms basically said its the exact same thing as a Terry stop. To my knowledge, this is the point at which a driver feel they are not free to leave. Because they are not free to leave. And because, in the context of related caselaw, the cop has at that point started directing the movement and actions of the citizen. (IE stand here, go there, do this.) This gets incredibly squishy in the context of DWI-related traffic stops, which is why you have a legal right to refuse to comply with field sobriety tests, and where implied consent acts as a prophylactic. Randbrick fucked around with this message at 19:45 on Aug 5, 2015 |
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Aug 5, 2015 19:42
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Jarmak posted:Yes, that's what I said, the issue that was under discussion was whether the request was an order, which goes to duress, not intelligence. There is no officer safety concern evidence in the video. Indeed, the officer's behavior is directly contrary to any officer safety claim. He evinced no concern for his safety that would be answered by having Ms. Bland exit the vehicle UNTIL he developed a personal argument with her. The video shows retaliatory behavior, not safety-minded behavior. Further, this patdown behavior can't just start up AFTER the stop is concluded. If he had ordered her out at the onset and patted her down, he could cloak himself in that argument. But once the stop went on, and, indeed, completed, without issue or apparent threat, and he then orders her out of the car in retaliation, there's no officer safety rationale to be had. And he absolutely does have to articulate a reason. Mimms may stand for the de facto proposition that we've created a giant gray area exception to the Fourth Amendment, but it still requires at least a cursory rationale of officer safety.
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Aug 5, 2015 19:59
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Jarmak posted:He hadn't actually issued her the ticket yet though, so whether the traffic stop was "complete" is an open question, in Rodriguez the entire process of issuing the warning was completed. Realistically, all you have to do as a cop if you want to search any vehicle at any time and have that search stand up in court is just tell the driver, "I smell the odor of burnt marijuana and I feel unsafe." And then order them out. But if your average career traffic cop were that good at things, then that cop wouldn't be a career traffic cop. Here, the officer's video-taped behavior is so utterly at odds with a potentially unsafe situation that a judge (in a criminal law context) or a jury (in a civil context) would have to have already drank a shitload of kool-aid to buy in.
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Aug 5, 2015 20:30
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If it's "belligerent" to contest a loving traffic ticket at this point, then I don't even know anymore. If the cops accuse you of something and you don't say anything, they can try to use your silence as a form of admission in court, for gently caress's sake. If you contest the charge, you're belligerent and deserve (?) to be arrested for whatever the hell. Near as I can tell ,the Right Thing to do when accused of a crime or issued or a ticket or looked at suspiciously by a cop is to recite your innocence in the King's English, using all the vocal fry and uptalk you can muster to soften the blow, preferably while wearing a t-shirt from the last Patrolmen's Benevolent Society community picnic and funrun, and doing a non-threatening, complimentary dance. quote:Not really, if anything he can cite her belligerent and uncooperative behavior as an additional reason to be concerned about his safety. Randbrick fucked around with this message at 20:44 on Aug 5, 2015 |
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Aug 5, 2015 20:42
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Jarmak posted:Or you know, you could just contest it without being belligerent and confrontational, which the tape pretty clearly shows her being right from the outset. And, if you're in the line of work I suspect you are, you also know that the cop's recourse to people being mean to him at traffic stops is to make a little note about it and make sure if she contests the ticket and gets convicted that Judge Soanso knows she was mean to him. quote:He doesn't need a reason. The Supreme Court said so.
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Aug 5, 2015 20:54
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Jarmak posted:He doesn't need to justify pulling her out of the care using her behavior, he only needs to clear the bar of having a reason why the behavior triggered the response besides it being retaliatory. I'm not sure what point you're trying to make here, arguing that her behavior wasn't actually objectionable weakens the argument that the action was unlawful more then it strengthens it. You can't retaliate against someone who hasn't done anything. Retaliation without just cause is a very real thing. And the broader point is not whether her behavior is or was objectionable by any given standard, but whether the officer perceived her to be a potential risk to her safety, and whether such concern motivated his order to exit the vehicle. The video shows that this was simply not the case, and that his conduct was a retaliation against her perceived provocation of smoking a cigarette, refusing to not smoke a cigarette, and being curt. And I point you back to Mimms and progeny, again -- he really does need a reason. That reason in this case needs to be officer safety, because there is just nothing else that can even be conceptually supportive of an order to exit. I think you've conflated the laughably lax standard of officer safety with no standard at all. Oh, and I apologize for presuming about your employment. (Not in a bad way or anything), but you just sounded like a guy who's done work in the legal area. And I still think that you know well as I do that the traffic cop's recourse for citizen rudeness comes when they get to burn you in front of a sentencing judge, and most certainly not by a show of force without cause. quote:Wait..
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Aug 5, 2015 21:40
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Actually, every time I have ever seen a "gang expert" talk in any capacity, it has been a laughable load of out of touch old white guy horseshit that wouldn't fly in a DARE presentation. It's mind-blowing to see that crap peddled as expert testimony in a courtroom. It's like an impression of Ice T's character on SVU, only it's an expert impression.
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Aug 5, 2015 21:45
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ActusRhesus posted:Yes. That's totally the same as calling the detective in charge of the city gang unit who can testify about origins of particular gangs, name changes, territory migration, membership, leadership, past and current beefs, and known organized criminal behavior Because what you described is a fact witness, and would be a fact witness in any other context.
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Aug 5, 2015 21:52
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ActusRhesus posted:Not quite. He'd still probably have to get qualified as an expert to testify about anything outside that specific investigation. Doing this in the gang context is fundamentally no different than it would be to certify a narc detective as an "expert" on the use of drugs, and introduce testimony that some guy was doing drug-looking stuff. It's a legal way to sneak non-probative testimony, guesswork, idle speculation, and hearsay into a trial. And it's wrong. quote:There really isn't a standard to be met at all, the inherent danger of a traffic stop alone is enough to justify ordering someone out of the vehicle, belligerence isn't at issue, its would be the defense's job to argue that the actual reason she was ordered out was not in line with officer safety. "She was confrontational when questioned so I decided to pull her out of the care for my safety because I was concerned it might escalate" is all that would be required to clear that hurdle. Not really, no. The pretext requires a pretext. EDIT - Actually, looking over Arizona more closely, the incidental extra intrusion of the patdown is what must be justified by a reasonable belief the driver is armed. I apologize and stand corrected. gently caress it, cops do whatever. Randbrick fucked around with this message at 22:18 on Aug 5, 2015 |
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Aug 5, 2015 22:12
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The pretense that it is an any respect useful or viable for a private citizen to go to a law library and conduct research through case book on an actual case with real world consequences is as ludicrous as pretending children are adults. To the extent Gideon was a one in a million individual who produced a tenable appellate legal pleading through self-research, I estimate there are approximately 300 people in the country right now who can do that, assuming they have months to years in which to learn by doing what is handed on a platter by Lexis and Westlaw.
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Aug 13, 2015 16:35
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Drunk driving is illegal not because it necessarily makes your driving poor, but because it's knowing conduct which compromises your ability to drive. The quality of driving may be relevant at sentencing, as with the level of intoxication. But the fact of intoxication, while engaged in high-risk, high-consequence behavior, is why it is illegal. There is no clever way around that rationale, and no amount of Denzel Washington in Flight-style drunken competence can lead you around the essential fact that you have made a potentially dangerous situation riskier than it has any right to be through knowing conduct. People have a (usually willfully) hard time understanding this sometimes. Bad driving is not the offense. Driving under conditions that are unreasonably risky to yourself and those around you is the crime. I agree it is questionable how the bright line for intoxication keeps dropping. But that is only the threshold point of intoxication society has decided it will accept, beyond which it is presumed you were under the influence to an unacceptable degree. That goalpost moves and has moved and may continue to move, certainly, if and as society grows increasingly intolerant of DWI-related risk. But the underlying course of conduct is recklessness, and that hasn't ever changed. Recklessness is the decision to engage in a course of conduct that implicates public safety, knowing that you are doing so in an unacceptably risky or dangerous way or under unacceptably risky or dangerous conditions. This is why driving 90 in a residential school zone is a criminal offense -- at that speed, you are presumed to know you are driving unsafely relative to local conditions. Drunk driving follows the exact same logic. There's a discussion to be had about the mounting severity of the penalties for first and second offense drunk driving, and about the extent to which local contractors have created a pocket industry for themselves making people pay for interlock machines and (often laughably substandard) substance abuse counseling. And there's a discussion to be had about the utility and resource allocation behind having cops hunting for DWI's more so than for the incidents of bad driving themselves. But I don't understand why it would be difficult to wrap one's head around the central conceit of DWI prohibition. I have met the occasional heavy alcoholic who can stand and talk clearly at .3 BAC. Those people are scary and sad, and I would not use them as a case study in the safety of high risk alcohol use.
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Aug 13, 2015 16:48
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ActusRhesus posted:How on earth did people litigate before the internet! I mean, it's not like cases like Strickland, Miranda, Wong-Sun etc were decided in a pre digital age... And what is the relevance of how lawyers litigated before the internet have to the ease, accessibility, or viability of casebook research to an untrained layman? And how much does a westlaw subscription cost? And why are you trying to argue a point by begging questions?
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Aug 13, 2015 16:58
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Welp I've been IDed in a show-up conducted 48 hours after the incident, and then interrogated with ambiguous indications I was free to leave, during which I made arguably inculpatory statements that may or may not be usable against me depending on a mixed fact and law inquiry. And in the course of my arrest by warrant, the police found a plastic baggie hanging partially out of a box in my closet that may or may not be large enough to conceal a person, and it is ambiguous whether the discovery was made before or after my arrest, and I am uncertain when and where I was finally and formally under arrest while 5-6 police were in my home, several of whom were with the county sheriff, and two of which were with the city police. On my way to the station house, I had an extended conversation with a very nice deputy about the dangers of substance abuse. I wonder what that was all about. Good thing I've got a Westlaw subscription, like people do. Gonna figure this stuff out. Hopefully I'm not in jail without bond.
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Aug 13, 2015 17:06
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ActusRhesus posted:Even if westlaw were free if you waive your right to effective counsel you are an idiot. Someone said the law is not available to the public. He's wrong. And what on earth does "availability" mean to you? Clearly, "access" to the law, in your mind, does not come with any level of understanding or use of the law. It's like saying "I have access to a car," because you can visibly see a car. Why would you want to pretend that John Q Layman has the tools to find cases and precedent because he can go hang out with the sovereign citizens at the county courthouse when you acknowledge that your definition of "access" precludes all utility?
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Aug 13, 2015 17:10
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Jarmak posted:Yes? Half the case law I know comes from someone citing a case or a law, or getting in an argument, and deciding to look it up and read it so I understood it better. You can google up a state statute which provides, for example, that the cops can't enter a residence to perform an arrest for a misdemeanor committed outside their presence absent warrant. And you may think, intuitively, that an arrest conducted under those circumstances implicates the 4th Amendment and the exclusionary rule. Google can give you that level of understanding. If you westlawed up the same statute, then Westlaw would provide you with the necessary treatise excerpts, case history, and law review articles to know that statute does not have a constitutional dimension and does not implicate the exclusionary rule. The text of the statute and basic intuition would never tell you that, and would in fact give you a false impression as to the state of the law. That's what access means to me. It isn't merely the ability to find a statute, but the ability to find a statute contextualized in a way that's genuinely practical and useful.
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Aug 13, 2015 17:21
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ActusRhesus posted:Giving a nonlawyer free access to westlaw won't make them a lawyer either. The ignorance of the law being no excuse is still the law of the land. That we expect people to understand that law, and then point to google as their means of doing so, when that method is utterly inadequate and frequently misleading in practice, is the problem. And....yeah, law review articles? They're a great way to mine case citations, particularly if your local precedent is ambiguous or unfriendly.
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Aug 13, 2015 17:28
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