Additional background here.
To their credit, the police fired the officer and the prosecutors filed charges. But according to the news article, the judge did not view the tape! And the police union wants the officer rehired!
With respect to the “gotcha” comment from the police union rep, that is just some sorta bizarre spin on the subject. The tape shows what it shows. Take each incident at a time on its own merits. What the judge did here is very hard to understand.
H/T: Jonathan Turley blog.
Consider this recent report. It’s 10 pm and some college students are returning to their car after picking up some items from the grocery store. Out of nowhere, six guys approach quickly in an odd, non-friendly manner. One guy actually jumps on the hood of the car. Another brandishes a gun. The men are talking, but you’re in panic mode thinking a criminal attack is underway. One of your friends is in the back seat yelling to the driver to “Go! Go!” So the driver pulls away. Talk about a harrowing encounter!
Moments later, a police vehicle with flashing lights shows up and so the college students pull over. Turns out the men who had approached the students before were ABC agents (that’s Alcohol Beverage Control) in plain clothes. The agents mistakenly thought the students were in illegal possession of beer.
Let’s pause here to consider the reckless tactics of the police. The police created a situation where citizens had only seconds to respond to what they reasonably perceived to be a criminal attack. Outnumbered and seeing a gun, the driver might well have been justified in driving right over an agent in self-defense had he been blocking the way. It should also be noted that there are now some ten million Americans with carry permits. Had a permit holder been confronted in this situation, he might have fired on these plain clothes officers. And then the officers likely would have fired back. A high risk of deadly force and loss of life over what? Young adults suspected of beer purchase.
But this story is not over.
One of the students, Elizabeth Daly, is arrested and charged with three felonies! 2 counts of assaulting an officer and one count of eluding the police. Add up the possible prison time and she is facing 15 years. She spends time in the jail and her family scrambles to find her an attorney.
Fortunately, the prosecutor exercises his independent judgment on this affair and he drops the charges.
A happy ending? Well, as noted, it could have been much worse. An agent might have been run over. In response to that, another agent might have shot one of the students. Or there might have been a miscarriage of justice with a prison sentence for Elisabeth Daly. None of that happened, but, still, consider:
1. Ms. Daly now has an arrest record.
2. The Daly family has a legal bill to pay.
3. Those ABC agents may well be still out on “patrol.”
From the Washington Post:
Vallery Vail thought the heater had blown up.
She was getting ready to go to sleep in her tiny two-bedroom apartment in a converted Mount Airy barn just before 1 a.m. Her son, Daniel, 19, who had an early shift at the gas station that morning, had gone to bed early. And then — boom.
It was not the heater.
Frederick County sheriff’s deputies — wearing SWAT gear, night-vision gear and military-style helmets — were storming Vallery Vail’s home in a raid connected to her son, who was a suspect in a home invasion and who the deputies feared might be armed. They set off a deafening flash-bang device. Then came gunshots.
“Boom, boom, boom, boom, boom,” Vail said, describing a hail of 18 9mm bullets deputies fired at her son. There was screaming. Deputies entered her bedroom, she said, and handcuffed her.
“I don’t hear Daniel,” she remembers thinking. “Why isn’t anyone helping him?”
Daniel Vail had been shot multiple times, including twice in his left temple, according to his family, who have yet to receive the official autopsy report. He died beside his bed.
The article notes the Cato report on these no-knock raids (right hand margin of our home page) and quotes the author, Radley Balko:
Flash-bangs have become a popular but controversial diversionary tactic used by SWAT teams. The devices give officers key seconds to make tactical moves and are especially useful in hostage situations. But using them when the suspect doesn’t yet present an active threat can lead to violent confrontations instead of preventing them, said Radley Balko, a former Cato Institute researcher and author of “Overkill: The Rise of Paramilitary Police Raids in America.”
“The police will say, ‘We need to do these midnight raids and use these devices to take people by surprise,’ ’’ Balko said. “But then they will turn around and say, ‘Well, you should have known we were the police, and you should have dropped the gun.’ That’s an inherent contradiction.”
Yes. The police stress they had only a ‘split second’ to decide whether to use deadly force. But they recklessly created the situation. They should have arrested Vail at the gas station or school or some other place. A raid in the middle of the night was a terrible idea.
Check out Radley Balko’s new book, The Rise of the Warrior Cop.
From the Star Tribune:
The city of Minneapolis will pay $3 million to the family of a man who died after a struggle with two Minneapolis police officers. It is the second-largest payout for a police misconduct lawsuit in the history of Minneapolis.
The Minneapolis City Council approved the $3.075 million settlement on Friday, resolving a federal lawsuit filed by the family of David Smith, a 28-year-old man who died about a week after the struggle at the downtown Minneapolis YMCA in 2010….
Minneapolis has seen very large payouts over police misconduct in some recent years. It paid out $4.2 million in 2011, although only $814,093 in 2012.
UPDATE: “Kern County Sheriff Donny Youngblood said he asked the FBI to get involved after learning that one of two phones seized from witnesses had no footage on it.” Hmm.
Since this web site is all about police misconduct, we cannot let the twentieth anniversary of the Waco incident pass without comment.
April 19, 1993 marks the worst police action in modern American history. Here are the main things to know:
- 76 people, including 27 children, died that day. That loss of life is a sufficient explanation as to why this incident is important and worth remembering.
- The federal police operation did not involve a handful of “rogue” agents. The incident is disturbing because it supposedly involved the best units of the ATF and the FBI. And much of the decision-making was done by the top people at headquarters facilities in Washington, DC.
- Make no mistake, crimes were committed by federal agents at Waco. And those crimes were covered-up.
- If the feds can successfully cover-up the worst police action in modern American history–an event that was highly publicized and that eventually brought extensive congressional hearings and the appointment of a special prosecutor– it is frightening to consider what police agencies would be able to get away in instances where there is no media scrutiny or legislative oversight.
For those interested in the details, read this paper that we published in 2001 (I also recommend the documentary film, Waco: The Rules of Engagement, which was nominated for an Academy Award in 1997). For today, let me just highlight some facts for all the people who do not have the time or inclination to study the details.
- When the Branch Davidian residence burned to the ground and it became apparent that the FBI tank assault on April 19 backfired–resulting in almost everyone losing their lives, Attorney General Janet Reno told the media that the reason she ordered the assault was because “babies were being beaten” – so the feds had no choice–they just had to move in. About a week later, Reno testified before Congress. Under oath, she admitted she had no evidence that babies were being beaten! What!?
- The FBI’s Hostage Rescue Team kept saying they were there to save lives and that they were especially concerned about the safety of the children in the residence. But their tanks drove into the side of buildings even as the agents admitted they did not know the whereabouts of the children.
- Some of the Branch Davidians survived the inferno of April 19. They were arrested and charged with “murdering ATF agents.” In a stinging rebuke to the federal prosectors, the jury acquitted the Davidians of those very serious charges.
- One of the primary reasons the cover-up was successful was that government officials kept deflecting attention away from their actions to the Branch Davidian leader, David Koresh. And, later, the feds would deflect attention by pointing out the crimes of the Oklahoma City bombers. The feds seemed to taunt everyone with the question, “Who are you going to side with? Koresh? McVeigh and Nicols?” That was always a false choice. One can, for example, condemn excessive force against a shoplifter without “siding with” shoplifting.
- There are, to be sure, some wild conspiracy theories out there about the feds and Waco. But the existence of a conspiracy theorist(s) does not make all government conduct lawful and ethical, at least in logic.
What’s the takeaway from all this? First, recognize that this awful incident really did happen. Crimes were committed and then the government tried to deceive everyone about what actually happened there. Second, when it comes to government power, especially police power and the use of deadly force, be impartial, ask questions, and follow the evidence. We must remember that, in a free society, police agents may not use the “color of their office” to commit crimes.
Update: Podcast interview here.
From the Associated Press:
Although Fry testified he only remembered stunning Boucher three times, information downloaded from the device showed he used it six times in a 75-second span.
A third officer, Bradley Walker, testified that when he arrived at the scene, he saw McCormick hit a motionless Boucher with the baton about five times and saw Fry use his stun gun on him.
The officers handcuffed Boucher, patted him down and turned him over, only to find that he wasn’t breathing and his face was covered in blood. Boucher was dead minutes later despite attempts to revive him.
Ethan Saylor had Down syndrome. He was in a movie theatre and Zero Dark Thirty had just ended. Saylor wanted to watch the film all over again. A theatre employee said he either had to buy another ticket or leave. When Saylor didn’t budge, they called security, which turned out to be some off-duty sheriff’s deputies working security in the mall. The deputies claim Saylor resisted arrest and died while being restrained. The coroner has now ruled Saylor’s death a homicide.
According to a story in today’s Washington Post, Saylor idolized the police and loved to watch police TV shows. Here’s an excerpt:
When Foss learned of Saylor’s death, he said, he informed about 60 members of the church that night. The following Sunday, they brought bouquets to fill Saylor’s empty chair. The flowers overflowed onto the floor and an adjoining seat.
Cam Overs has a son Saylor’s age and has been friends with his family for 30 years. He remembered how Saylor would run curiously toward whatever caught his eye and was a pro at hide and seek because he had the endurance to stay in the same spot until he was found.
Saylor would get breakfast with Overs every Sunday at McDonald’s. Both scoffed at change, and so their orders were always the same: a No. 1 for Overs and a No. 7 for Saylor.
“Now I don’t have my buddy for breakfast every Sunday morning,” Overs said. “There’s a void that nobody expected.”
Overs said Saylor knew how to spell “satellite” because of his fascination with satellite photos and was thrilled when Overs’s son Jonathan, who is in the military, brought him a Kevlar vest. Overs said Saylor didn’t understand that he could call a non-emergency number for the police and dialed 911 so often that he was known to members of the law enforcement community.
On the day of Saylor’s funeral, two law enforcement officers sent a text that was read aloud; it said they, too, would miss him.
“What a fitting memorial it would be if a training module was created in his name,” Overs said, “so no other family or police force would have to suffer this pain.”
A spokeswoman for the Sheriff’s office says “We’re taking it very seriously.” The deputies involved in the incident, however, have thus far declined to speak with investigators.
One would think that such noncooperation would be unacceptable under the circumstances. Can’t the Sheriff call them in and say, “A young man lost his life in your custody. I want to know what happened and why. If you decline to answer, surrender your badge and gun.”
That sounds like a sensible response to me, but the law is perverted. There is a Supreme Court precedent on the books by the name of Garrity v. New Jersey–and that case says the above procedure would violate a police officer’s right against self-incrimination. The reasoning was lousy. If the officers accused of wrongdoing want to remain silent and speak to a lawyer–that is their right, just the same as everyone else. What they cannot do is remain silent and also demand to keep exercising police powers in the community. If the police commanders determine that a sworn officer’s conduct is egregious or criminal, the culprit should be given his walking papers.
Garrity is an obstacle to police accountability and should be overturned. In 1967, the year it was decided, four Supreme Court justices thought it was a mistake. Here is an excerpt from their dissenting opinion:
It can hardly be denied that New Jersey is permitted by the Constitution to establish reasonable qualifications and standards of conduct for its public employees. Nor can it be said that it is arbitrary or unreasonable for New Jersey to insist that its employees furnish the appropriate authorities with information pertinent to their employment. Cf. Beilan v. Board of Education, 357 U.S. 399 ; Slochower v. Board of Education, 350 U.S. 551 . Finally, it is surely plain that New Jersey may in particular require its employees to assist in the prevention and detection of unlawful activities by officers of the state government. The urgency of these requirements is the more obvious here, where the conduct in question is that of officials directly entrusted with the administration of justice. The importance for our systems of justice [385 U.S. 493, 508] of the integrity of local police forces can scarcely be exaggerated. Thus, it need only be recalled that this Court itself has often intervened in state criminal prosecutions precisely on the ground that this might encourage high standards of police behavior. See, e. g., Ashcraft v. Tennessee, 322 U.S. 143 ; Miranda v. Arizona, supra. It must be concluded, therefore, that the sanction at issue here is reasonably calculated to serve the most basic interests of the citizens of New Jersey.
Garrity came down in the heyday of the liberal Warren Court. Today’s Supreme Court is much more conservative–and it is highly doubtful that Justice William O. Douglas’s fanciful interpretation of the self-incrimination clause would find the support of five justices. Here’s the thing: In order to get the Supreme Court to reconsider Garrity, the precedent has to be challenged. Right now, police chiefs around the country abide the current rule with a shrug, “Can’t do anything about this situation.”
What we need is a good test case. Maybe this Saylor incident is the case, maybe it isn’t. But where the evidence of police wrongdoing is strong and the culprits invoke their “Garrity rights” and decline to tell investigators what happened, we need a police chief to fire them. Let the discharged officers appeal their case to the Supreme Court so that the justices can overturn Garrity.