Michael Bennet Arrest

A Superstar Detained

By now, we’ve all seen video of Seattle Seahawks star, Michael Bennett, running from a shooter at a Las Vegas casino. Opinions generally fall into one of two camps. The first is that Bennett shouldn’t have run from police, and the other is that when someone might be shooting at you, instinct takes over and you run.

On August 27, 2017, a gunman opened fire at a Vegas nightclub. Michael Bennett heard the gunshots and immediately ran out of the club for his own safety.

Las Vegas Metropolitan Police Department officers arrested Bennett as he ran for cover during the shooting. The officer drew his weapon, pointed it at Bennett and ordered the NFL player to the ground. Another officer pinned Bennet to the ground with his knee while forcefully handcuffing him.

Bennett remained calm, which is remarkable considering the situation. He referred to the officer as “sir” and continued to ask the officer what he had done and why he was being detained. There were hundreds of people running from the club and fleeing the scene, but it appears that the muscular, black athlete was the only individual detained by officers.

What Reasonable Suspicion?

According to reports, the police did not have a description of the shooter at the time, so it appears Bennett was detained for no other reason than being a large black man. Those on the other side point to officer training in identifying suspicious persons. It’s not yet clear why police targeted Bennet.

This incident raises many questions. Was the officer justified in his use of force? There was no description of the shooter, so why did officers detain Michael Bennett? Did officers arrest anyone else running from the club? 

Unfortunately, we may never get the proper answers to these questions. The officers who detained Bennett wore body cameras, which would have been helpful. Unfortunately, they apparently disabled their body cameras, so there is no video of the event.

Know Your Rights

You have rights if the police detain you:

  • You have the right to remain silent. If you wish to exercise that right, SAY SO OUT LOUD
  • You have the right to refuse to consent to a search of your person, vehicle, or your home
  • If you are not under arrest, you have the right to calmly leave
  • You have the right to a lawyer. Ask for an attorney as soon as possible, and do not speak to police without an attorney
  • Regardless of your immigration or citizenship status, you have constitutional rights

Here’s what to do when police stop you:

  • Stay calm and be polite
  • Do not interfere with or obstruct the police officer(s)
  • Do not lie or give false statements or documents
  • Remember the details of your encounter with the officer

If you’ve been detained or arrested, the experienced defense attorneys at Durflinger Oliver & Associates can help. Call today to schedule your free consultation, 253-683-4180. Ask about our military discount and convenient payment plans.

Appeal Your NICS Denial

Gun RightsFinally, there is some great news for people whose Second Amendment (2A) rights were improperly denied. The FBI’s The National Instant Criminal Background Check System (NICS) website again has an appeals page. Many firearms owners and hopeful gun purchasers were wrongly denied gun purchases following their NICS check. For the last year, these people had no opportunity to appeal… Until now. If you were denied a purchase, you can appeal your NICS denial.

Halting Gun Sales

In October 2015, NICS’s appeals workers were transferred to other positions within the organization. People who were denied the purchase of a firearm had no recourse. The NRA and other 2A organizations and authorities decried the transfer of employees as a backhanded attempt at preventing legitimate firearms purchases by eligible citizens.

Would be purchasers were out of luck. They could file an appeal, but there were no employees to process the appeal. Those appeals kept rolling in and piling up as frustrated purchases took what steps they could to correct the improper denial of their 2A rights.

Reclaiming Firearms Rights

We’re almost out of the woods now. People who appealed their NICS firearms purchase denial now have a chance at relief. Those who have recently been denied, should feel encouraged to appeal the NICS finding of ineligibility to purchase a gun. Unfortunately, there is still a year and  a half backlog of previously filed appeals.

If you were denied a firearm purchase following your NICS check, there are some things you need to know and do. Make sure that you get any information about the denial that you can. FFLs should give you whatever information they received, which generally isn’t much, but it will help you start the appeal process.

The next thing you’ll want to do is visit the FBI NICS information website here. It’s a pretty easy site to navigate, and it will help you get the information you need to file an appeal. You can definitely start the process on your own, and if you are again denied, you may want to contact an attorney to help you out.

If you have any 2A questions, call the attorneys at Durflinger Oliver & Associates for a free consultation, (253)683-4180.

False-Confession-Lawyer

Marijuana Arrests, Excessive Sentences

Growing Jail Population

Weed_JointAt least 137,000 men and women are behind bars on simple drug possession charges including marijuana arrests. The ACLU and Human Rights Watch report indicates that nearly two-thirds of these people are locked up in local jails. Most of these inmates have not even been convicted of a crime. They are sitting in a cell because they simply can’t afford to post bail. Many of these people lose months of their lives, their jobs their homes and their possessions.

“It’s been 45 years since the war on drugs was declared and it hasn’t been a success,” said lead author Tess Borden. “Rates of drug use are not down.” Federal figures on drug arrests and drug use over the past three decades tells the story. Drug possession arrests skyrocketed. There were fewer than 200 arrests for every 100,000 people in 1979. By the mid-2000s that 200 number had grown to to more than 500. The drug possession rate has since fallen slightly, according to the FBI, hovering now around 400 arrests per 100,000 people.

Drug Use Continues to Grow

Defenders of harsh drug possession penalties say they’re necessary to deter people from using drugs and protect the public health. This “tough-on-crime” approach has led to a surge in arrest rates over the last three decades. It has also been largely ineffective in preventing drug use.

 Illicit drug use today is more common among Americans age 12 and older than it was in the early 1980s. Federal figures show no correlation between drug possession arrests and rates of drug use during that time. Still, arrests for drug possession continue to make up a significant chunk of modern-day police work.

American “police make more arrests for drug possession than for any other crime,” according to FBI data. “More than one of every nine arrests by state law enforcement is for drug possession”, according to the report. That equates to more than 1.25 million arrests each year. In fact, police make more arrests for marijuana possession alone than for all violent crimes combined.

Treatment Not Jail

The report calls for decriminalizing the personal use and possession of drugs, treating it as a public health matter instead of a criminal one. “Rather than promoting health, criminalization can create new barriers to health for those who use drugs,” the report says. “Criminalization drives drug use underground; it discourages access to emergency medicine, overdose prevention services, and risk-reducing practices such as syringe exchanges.”

The report reinforces its point by noting the lengthy sentences handed down in some states for possession of small amounts of drugs. In Texas, 116 people are currently serving life sentences on charges of simple drug possession. Seven of those people earned their sentences for possessing quantities of drugs weighing between 1 gram and 4 grams, or less than a typical sugar packet. That’s because Texas also has a habitual offender law, allowing prosecutors to seek longer-than-normal sentences for people who have two prior felonies. “In 2015, more than 78 percent of people sentenced to incarceration for felony drug possession in Texas possessed under a gram,” the report found.

Martha McLaughlin
Sr. Associate Attorney
Durflinger Oliver & Associates

Are Sex Offenders Getting Enough Treatment?

sex_offender_therapyOffenders Got Too Little Treatment

Judges in Washington State routinely gave too little treatment to sex offenders. The problem was caused by incorrect sentencing language on a court form. Courts have been relying on that form since 2008. As a result, many sex offenders received reduced community supervision and treatment time for some Washington sex offences.

Government Employees Knew About The Problem

Newly released documents reveal that courts and corrections officers knew about the problem since 2010. They did nothing to correct it. An email between state workers identified the sentencing problem. The issue was also a subject for discssion in a State government meeting. Meeting members were to discuss issues caused by the faulty form.

Courts in some counties used the felony judgment and sentencing form for the Special Sex Offender Sentencing Alternative (SSOSA) program. The chief aim of the program is to reduce the risk of future criminal behavior. SSOSA is only available for low level offenders who pose little risk ot the community. The program is effective because of the intensive treatment requirements.

Incorrect court form language cut treatment short for some offenders. Not only that, but the improper language reduced SSOSA jail time. That reduction caused officials to improperly calculate the appropriate amount of community supervision for offenders. Although, court officials fixed the form in January, problems remained.

The Department of Corrections, looking for errors, reviewed the sentences of current SSOSA program members. The review identified at least 73 sex offenders who received too little community supervision. The review found 32 other offenders who were supervised for too long. Officials ended monitoring for the latter group as soon as the error was discovered.

Do Police Get Away With Murder?

Unarmed victim

Police shot Charles Kinsey. Video showed him on the ground with raised hands.

Is anyone accountable when police murder? The answer might be no. Washington State formed a task force to reduce law enforcement-involved shootings. The law that protects police officers from criminal charges is dividing task force members. Some believe in law enforcement immunity, others claim it gives police officers a free pass to kill.

The Law Protects Police

A 1986 state law effectively shields police officers from work related murder charges even when they were wrong. Prosecutors cannot charge officers with murder absent a showing of malice or evil intent. The law protects officers who use deadly force even when it’s deemed reckless or negligent, said Washington Association of Prosecuting Attorneys Executive Secretary, Tom McBride.

Recklessness is when an officer knows that what he is doing puts innocent people at risk, but he takes the action anyway. Imagine a case where an officer empties her gun into a crowd of innocent people just to get one bad guy.

Negligence is where an officer simply didn’t do what a reasonable officer would have done. These scenarios include, for instance, officers shooting people holding cell phones and not weapons. Perhaps the officer should have known better, and should have acted differently.

Currently, it’s not enough to allege that an officer was reckless, or negligent. Prosecutors have to prove that the officer acted with malice. That means that the officer basically intended to do wrong in shooting someone. This can be hard to prove. If an officer simply says that he felt threatened, then no jury is likely to find malice. As a result, officers in Washington State are basically immune from prosecution for wrongful homicides committed on the job.

Advocates Want Protection from Police Murder

Reform advocates on the task force pushed for deleting the malice requirement. Prosecutors could charge reckless or negligent officers if the malice requirement is removed. “The malice requirement is an impossible threshold for prosecutors to meet”, stated a committee member. Additionally, prosecutors and police officers often see themselves as teammates. Prosecutors rarely charge one of their own. Unfortunately, African Americans are often on the losing end of police interactions. They are also more likely to helplessly watch as police officers get away with bad behavior.

An analysis by the Seattle times last year found that between 2005 and 2014 police officers were disproportionately likely to kill members of the black community. Prosecutors brought homicide charges against an officer in only one of 213 shootings. The officer fired his gun through the back window of a car killing the driver. A jury acquitted. They could not find that the officer had acted with malice.

At least one task force member argues that changing the statute and holding officers accountable would build trust between law enforcement and minority communities. Others urged lawmakers to maintain the law as written. The Kennewick Chief of Police, Ken Hohenberg, doesn’t believe that any change in the law would help. Making police more accountable “won’t help reduce violent interactions involving police”, he said. “More police training and better information are the answers to inappropriate violence”, Hohenberg suggested.

A member of the panel representing the Black Law Enforcement Association of Washington, Cynthia Softli, voiced concerns that removing the malice requirement might put officers at risk. Potential criminal charges could distract officers, according to Softli. That distraction might in turn slow officer reactions in dangerous situations.

The task force is made up of lawmakers, representatives of police, community groups and legal organizations. They will recommend changes for lawmakers to consider. A campaign to remove the malice and good faith portions from Washington’s law is gathering signatures in hopes of sending an initiative to the Legislature next year. Supporters of Initiative 873 gathered at the Capitol on Monday to call for change to the malice requirement. They seek greater police accountability.

Some police representatives said that officers should not be punished if they killed someone in good faith. Others said they were concerned that judging good faith can be as subjective as determining malice. No other state has malice or good faith requirements, but a few have subjective standards, said Jeff Robinson, the director of the Center for Justice at the American Civil Liberties Union who made the presentation. Robinson captured attention while showing videos of police killings in other states, including the 2014 fatal shooting of Laquan Mcdonald, 17, in Chicago. McDonald was wielding a knife but walking away from officers when fired. Officer Jason Van Dyke shot McDonald 16 times and is facing first-degree murder charges.

 

 

When Innocent People Confess

For those of you that believe that innocent people do not confess to crimes they did not commit, you may want to take a look at the Brendon Dassey case. A Federal Court overturned his conviction because of a false confession. Police obtained the confession by using coercion, which violated the Constitution.

False Confession

Dassey went to prison because of a false confession.

Brendan Dassey became the topic of arm chair lawyers everywhere when Netflix’s hit series “Making a Murderer” became a worldwide hit. The show followed the investigation and trials of Brendan Dassey and his uncle, Steven Avery for the murder of Teresa Halbach. Police made Brendan Dassey admit that he helped his uncle murder of Teresa Halbach.

Prosecutor in Dassey’s case told jurors that “innocent people don’t confess to crimes they did not commit”. Unfortunately, that statement was not true. There is too much evidence that many innocent people have confessed to crimes that they did not commit.

Studies Document False Confessions

More than 25% of innocent people in prison made false confessions[1].  A big reason for this huge margin of error is that police use improper interrogation techniques. Many people do not realize that police lie about evidence and make false promises and threats. Courts have said that it’s okay for police to lie and threaten.

Brendan Dassey’s investigators used the Reid Method of questioning[2] to get his false confession. Critics argue that the Reid method is unfair and likely to elicit false confessions. Sadly, Police love the Reid Method.

Some People Are More At Risk

Studies have shown that juveniles, and adults below average intelligence or mental health issues are particularly at risk of making false confessions. This truth is nothing new.

In 1966 the U.S. Supreme Court issued its famous Miranda decision. In doing so it singled out the Reid Method for creating a hostile and coercive environment for suspects. The Court held that the Reid Method and similar approaches demand that police inform suspects of their right to remain silent. They must also advise suspects that they have a right to a lawyer during any police interrogation.

Unfortunately, most juveniles and people with below average intelligence or mental illness often do not understand the Miranda warnings and give up their rights.  Investigators then grill these people, often for hours at a time, using the Reid Method and other harsh techniques. Many legal professionals believe that children should always have an attorney present during any police questioning. These experts believe that the recent rash of exonerations is proof that police shouldn’t interrogate children. Police often terrorize children and their families during questioning.

Juvenile False Confession

  • 17 year old Martin Tankleff confessed to murdering both of his parents[3]. Detectives told him that they had found a lock of his hair in his dead mother’s hand. They also lied that his father blamed Tankleff for the murder just before dying. Tankleff eventually believed he must have done it, saying, “My father never lies.” He spent 17 years in prison for a crime he did not commit. In 2007 a New York State appeals court vacated his conviction. Prosecutors dropped charges in 2008. Tankleff eventually settled a wrongful conviction lawsuit for $3.4 million.
  • 14 year old Michael Crowe confessed to stabbing his 12 year old sister. Police interrogated him without his parents or an attorney[4]. He initially denied any involvement, but officers using the Reid Method broke him down. They lied about evidence and convinced him to confess to the murder and implicate two of his friends. The charges against Michael and friends were later dismissed after police found the actual killer and lifed the dead girl’s DNA from his clothing. The Escondido Police department later agreed to pay $7.5 million in damages for the trauma that they caused the family following the murder of their daughter.
  • 14 year old Lorenzo Montoya confessed to the murder of Emily Johnson in 2000 after he was interrogated without a parent or lawyer[5]. Like Brendon Dassey and Michael Crowe, he initially denied any involvement in the murder but Police successfully used the Reid Method to elicit his confession. Police lied to Lorenzo telling him that they had found evidence linking him to the crime scene. He served 13 years in prison before being exonerated with DNA evidence. He is currently suing the Denver Police Department for 30 million dollars.

Average People Also Confess

Victims of false confessions include average adults. On June 6, 2004, three year old Riley Fox disappeared from her home. Authorities found her body in nearby woods. Someone had sexually assaulted and murdered her[6]. Prosecutors initially charged her father, Kevin Fox, with the child’s murder. They made their charging decision based almost entirely the father’s videotaped confession. That confession was false.

Kevin Fox spent eight months in prison before DNA evidence cleared him of the murder. The actual murderer, Scott Eby, later confessed to killing the girl. The Fox family won $15 million in a law suit. The state is still appealing the verdict.

Unfortunately, stories like Dassey’s and the others mentioned are not anomalies. They are a product of coercive and manipulative interrogation tactics. Tactics that are just as likely to induce a false confession, as elicit a true one. As any defense attorney will tell you, it is nearly impossible to overcome even a false confession at trial. Most jurors simply will not believe that an individual will confess to a crime that they did not commit. A lot of innocent people end up in prison as a result. Likewise, violent predators go free.

Remain Silent

People will be at risk until the coercive and manipulative Reid Method, and others like it, are prohibited. Protect yourself from a false confession by remaining silent and refusing to talk to police. An experienced criminal defense attorney will tell you that the single most important thing you can do if the police want to talk to you it to invoke your right to an attorney. This may seem counter-intuitive as an innocent person has nothing to hide. Tragically, the reality is that the police have been trained to get a confession, and using current interrogation methods they may just get it from you whether you are guilty or not.

[1] http://www.innocenceproject.org/causes/false-confessions-admissions/

[2] “The term ‘Reid Technique’ is a registered trademark of the firm John E. Reid and Associates, which offers training courses in the method they have devised. While the technique is widely used by law-enforcement agencies in North America, it has been criticized for its history of eliciting false confessions”. https://en.wikipedia.org/wiki/Reid_technique

[3] A Criminal Injustice: A True Crime, a False Confession, and the Fight to Free Marty Tankleff, published by Ballantine Books in 2008

[4] Shattered Justice: A Savage Murder and the Death of Three Families’ Innocence. Avon Books. Philpin, John (July 25, 2006).

[5] http://www.dailymail.co.uk/news/article-2661337/DNA-evidence-frees-man-prison-14-years-later.html

[6] http://abcnews.go.com/2020/riley-fox-parents-speak-scott-eby-charged-murder/story

False-Confession-Lawyer

Reasonable Bail?

Reasonable Bail AmountProsecutors and Judges in Washington State may soon be setting reasonable bail amounts in criminal cases. The United States Justice Department recently admitted that holding defendants simply because they can’t afford bail is likely unconstitutional.

Criminal Rule 3.2 – Bail

Washington Criminal Rule 3.2 creates the general presumption that a criminal Defendant shall be released from custody without having to post bail. The court is to examine whether the accused is likely to commit more crimes, or intimidate witnesses, or otherwise interfere with the administration of justice. The court should release on personal recognizance defendants who are likely to follow the rules.

A judge may impose no bail, or a reasonable bail. The purpose of bail is to ensure that the defendant will appear in court. Bail is also supposed to protect the community. If the court can impose a significant bail if it determines that the accused is a danger to the community, or is a flight risk.

Unfortunately for many Pierce County criminal defendants, some judges have set bails that are so high that the accused cannot reasonably expect to be released. These cases include people who aren’t accused of violence, and aren’t at risk of skipping out on their court case.

The Constitution

The USDOJ brief stated that “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment.” The Constitution guarantees equal protection and when similarly situated people have bail set with no regard to ability to bail out, then some people are being treated differently.

The USDOJ brief was filed in the case of Maurice Walker of Calhoun, Georgia. Mr. Walker was arrested for being drunk in public. His bail was set at $160, which Walker was unable to post. As a result, he was held in jail for six nights following his drunken walk. There is no indication that Mr. Walker was a risk to the public, or a flight risk unlikely to return for court. As he could not afford to bail out, it seems clear that his bail was too high for this situation.

USDOJ lawyers argued that “Fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for the ability to pay,” the government said, “unlawfully discriminate based on indigence.” The Federal judge hearing the case agreed ordered to the city create a fairer system for defendants in minor criminal cases. The city appealed.

The city expressed concerns that without requiring bond, many people would have no incentive to return. It’s troubling that the city thinks it better to keep people jailed in petty offenses for which they have not been convicted, than to set a reasonable bail amount and run the risk that a small percentage of people might miss a future court date.

The city, not surprisingly, was joined by law enforcement and a group representing bail bondsmen. They advocated that indigence should not be considered in setting reasonable bail.

An Old Man and His Truck

Our firm recently represented a nice old man who was frustrated with a police officer. The officer accused the old man of not having a valid license. The old man was sure – and correct – that his license was fine. The officer didn’t like our client’s “bad” attitude.

The cop threatened to arrest the old man and tow his car. The old man pleaded that he wouldn’t be able to retrieve his vehicle and wouldn’t be able to bail out. The cop laughed – it was videotaped – and told the old man, “too bad”. The judge did not order a reasonable bail amount, and the old man sat in jail.

As it turned out, his license was good. The charges were eventually dropped but as a result of the arrest, he lost his job as well as his truck. He simply couldn’t afford the towing fees and impound charges once he was released.

Excessive bail can break up families, costs the accused his or her job, and it creates a host of other social issues. It’s nice to see the government finally accepting how destructive some of its policies can be.

For more info see the ABA article here.

If you or a loved one is at risk of losing liberty, call the attorneys at Durflinger Oliver for a free consultation, (253)683-4180.

Traffic Ticket Lawyer

Illegal Arrests Now Okay?

Illegal arrest

The U.S. Supreme Court is gradually eroding your 4th Amendment rights. Recent opinions give police broader powers to arrest citizens even if they are not breaking the law. Washington State has stronger protections against illegal search and seizure but, Prosecutors will be excited by recent SCOTUS cases.

Want more info? Read the this excellent article by law professor Erwin Chermerinsky as published in this month’s ABA Journal. 

Charged with Possession?

The attorneys at Durflinger Oliver & Associates help those who have been charged with possession of a controlled substance or other contraband. Call (253)683-4180 today to schedule your free consultation.

Beware of Cannabis Blows 2017

respirator     Washington State University (WSU) researchers say they are about a year away from having a portable breath test that police can use to detect if someone has recently consumed weed and is driving under the influence.
Roadside breath tests already exist to detect whether drivers have consumed alcohol. But currently, officers have no similar device to test drivers for marijuana use. WSU researchers have completed their first round of testing of the marijuana breathalyzer and are making improvements.      The second round of testing is about to begin and the plan is to make the device available for police to use in the field sometime next year.
While police would still need to get a warrant and draw a person’s blood to see if they meet the legal definition of impairment under the state’s marijuana laws, a breath test could be a more reliable way to detect marijuana impairment than field sobriety tests that officers use now.
Initiative 502, which voters approved in 2012 to legalize recreational marijuana use, said drivers are considered impaired if they test positive for at least 5 nanograms of delta-9 THC per milliliter of blood. The marijuana breath test under development at WSU is designed to test for delta-9 THC, the psychoactive component of marijuana that causes someone to get high- not the metabolite that can stay in someone’s system for days or weeks. Right now, the test determines only whether delta-9 TCH is present in someone’s system, and not what level is in their blood.
Out of 30 times the test was recently used on someone before and after they smoked marijuana, it accurately detected TCH in the person’s system about half of the time. The test turned up only one false positive during the trials. Researchers are continuing to refine the breath test and will only improve on those results. The research team had already made changes that will help make the test more accurate going forward.

Criminal Attorney

Freddie Gray

Freddie Gray Death

Freddie Gray’s Police Officers

Freddie Gray died just one week after injuries sustained at the hands of Baltimore Police Officers sparking riots and protests throughout the City of Baltimore. His death raises many questions about what constitutes probable cause to stop an individual, what constitutes probable Cause to arrest an individual, and what constitutes unlawful use of force by arresting officers.

According to statements given by officers, the initial contact between Freddie Gray and Baltimore Police was nothing more than brief eye contact between Gray and one of the officers. It was just after 8:30 am and there was no indication that any crime was in progress or had recently been committed. As three police officers approached Gray, he made the decision to run and a chase ensued. Gray was quickly apprehended and during that stop, an officer claims that he saw a knife in Gray’s pocket.

Gray was placed under arrest for possession of a dangerous weapon. He was then handcuffed and dragged into an awaiting transport van. In a video that was recorded by a witness, Gray can be heard crying out in pain and appears unable to stand or walk. The van made at least three stops while en route to the police station. When the van arrived at 9:40, Gray was unconscious and paramedics were called. Gray suffered a crushing neck injury while in police custody that nearly severed his spine, broke three vertebrae and crushed his voice box; he lingered for a week in a coma before dying.

The first question is whether Mr. Gray was lawfully stopped by police. As an experienced Tacoma criminal defense attorney I had questions about the legality of that initial stop. The police claim that “defendant fled unprovoked upon noticing police presence”. Police never describe any criminal activity or safety concerns. Police state the “defendant was apprehended after a brief foot chase”. The officer’s statements make it clear that Gray’s decision to flee is the only reason for the initial stop. In the State of Washington, police need more than a suspicious glance and quickly leaving the area.

Unfortunately for Gray’s family, according to the United States Supreme Court and the State of Maryland, running away from the police, even for no reason, in a high crime area is enough to support a reasonable suspicion that a crime has been committed. However, in order to search or even frisk a suspect, the officers must articulate additional safety concerns.

Was the search of Gray lawful? Again, an experienced criminal defense lawyer would question the search of Gray’s person. According to the police in a written statement, “this officer noticed a knife clipped to the inside of his right pants pocket”. This led to Gray’s arrest for possession of a dangerous weapon. An officer who is conducting a lawful Terry stop may frisk a suspect if the police articulate safety concerns. This means that the police must have reasonable suspicion that the suspect may be “armed and presently dangerous” to conduct an additional and carefully limited search of the outer clothing for the sole purpose of discovering weapons. The officers never indicate in their report that they have any additional safety concerns.

Another way officers may try to justify the search is under the plain view doctrine. While the plain view doctrine allows a search when evidence is in plain view of the officers, it is not clear whether a “clip” on the outside of the pocket is definitive evidence that there was a knife inside of his pocket, thus allowing for a search of the defendant’s person or even a limited “safety frisk” for the purpose of discovering weapons.

Was the arrest of Gray lawful? A Terry stop is not the same as an arrest. An arrest requires probable cause that a crime has occurred based on the totality of the circumstances. The officers claimed that after the stop but before the arrest, a knife was discovered on Gray’s person. After the discovery of the knife, the defendant was placed under arrest for possession of a dangerous weapon. Whether or not it was in fact a dangerous weapon will depend on the type and size of the knife and if it meets the statutory definition of a “dangerous weapon”. A personal injury attorney representing the family claims that it was “a small pocket knife of legal size”.  If that turns out to be the case, the arrest may have been unlawful.

Did unlawful use of force used by officers against Gray result in his death?  Even if the courts ultimately hold that the stop, the search and subsequent arrest of Gray were lawful, it still must answer the question of whether unlawful force was used by the police while Gray was in their control and custody. Recent allegations of police brutality and the killing of unarmed citizens, predominately black men, have raised questions about police tactics and whether the amount of force being used against citizens is in fact lawful. It seems fairly obvious to most that no person should ever die of blunt force trauma at the hands of the police. Gray’s autopsy showed that his spinal cord was nearly severed, three vertebrae were broken and his voice box was crushed. The report cited “powerful blunt force” and “hyperextension of the neck” as likely ways to cause this type of damage. Expect to see more details of this in #blacklivesmatter accounts.

At the time of his arrest, at least one witness claims that Gray was on the ground and that officers had their knees on his neck and back, while another witness claimed that officers had “bent Gray like a pretzel”. A video filmed by a witness shows officers dragging Gray towards the transport van. In the video, he appears to be having difficulty walking and is crying out in pain. This seems to suggest that serious bodily injury probably occurred prior to and during the actual arrest.

The Baltimore Police Department has suggested that a failure to seatbelt Gray into the transport van may have resulted in the traumatic injury during the transport to jail. It was even suggested that perhaps officers had given Gray a “rough ride” in the transport van and promised a full investigation. The transport van took over an hour to reach the police station and included three stops, which caused a substantial delay in getting Gray proper medical treatment. The investigation into what transpired during the arrest and those stops is still ongoing. The results of that investigation will likely have a huge impact on any future law suit against police for civil rights violations.

Can the police be sued for civil liability for the death of Gray? The short answer is yes. However, whether Gray received his injuries before or after his arrest will determine what Gray’s family will have to prove in order to prevail in a civil case under Maryland’s current application of the law.

Ironically, what may have initially looked liked the Police Department’s willingness to acknowledge its mistakes that Gray wasn’t wearing a seatbelt, and that officers may have given him a “rough ride” may actually be a clever ploy in an attempt to avoid civil liability in this tragic case. This is because if a Judge believes that Gray was fatally injured after his arrest as he was being transported without a seatbelt and that his injuries were not inflicted wantonly or sadistically, the court may not find that the police have any civil liability for his death. This is because Gray had fewer Constitutional protections after his arrest than before.

In Maryland, courts have limited the Fourth Amendment “seizure” protections of an individual are limited to the initial arrest. Therefore, if the injuries occurred before or during the initial arrest, a judge could determine that the seizure and the force used during that seizure was not “objectively reasonable” based on the totality of the circumstances under the fourth amendment. This would strengthen the Gray family claim against the Baltimore Police Department. However, if the injuries were sustained after the arrest, the judge would have to conclude that force was applied “maliciously and sadistically” for the purpose of causing unnecessary and wanton pain and suffering under the Due Process Clause of the 14th Amendment. This would be much, much more difficult for the Gray family to prove.

Gray‘s family may also argue that Gray’s rights were violated under the Eighth Amendment prohibition against “cruel and unusual punishment”. Under this theory, the Gray family would have to prove that the police are civilly liable for his death because they failed to provide necessary medical treatment to Gray while he was in their care and custody during the delayed transport to the police station.

What is the likely outcome of a lawsuit? Juries can be unpredictable and there is never any guarantee of a big jury award. However, unlike some recent cases that have made headlines, Baltimore officers have not argued that that they acted in self-defense. Instead they seem unable to offer any explanation as to how Gray sustained his fatal injuries while in police custody. Although the city of Baltimore has paid out settlements and judgments totaling $5.7 million since 2011, those funds have been paid out on several individual lawsuits as documented in a recent Baltimore Sun article.

The Local Government Tort Claims Act (LGTCA) caps damages against local government at $200,000 per claim. Jerriel Lyles, a Baltimore resident, successfully sued Baltimore Police for an assault which occurred in January 2009. A jury awarded Mr. Lyles $500.000 which the court quickly reduced to $200,000 to comply with the LGTCA. Even if the family prevails in a lawsuit against Baltimore Police, their damages will likely be limited by the LGTCA and it will be the Baltimore tax payers that foot the bill. As for the police involved, individual reprimand or termination is rare, even where a lawsuit has either settled or the victim has prevailed in their lawsuit against the officer.  Unfortunately, the likely outcome of a lawsuit is that any jury award will not adequately compensate the victims due to the LGTCA, the officers involved probably won’t be successfully prosecuted or even have their employment with the Police Department terminated, and as a result, the system will not change.

If you have any questions about potential civil rights violations, our experienced attorneys can help you. Call today for your free consultation.

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