Ninth Circuit Court of Appeals Decision Brings Reality Back to Police Work

The Ninth Circuit Court of Appeals issued a decision December 28, 2009 in Carl Bryan vs. B. McPherson, Coronado Police Department and City of Coronado, Docket No. 08-55622, San Diego District Court allowing a lawsuit to proceed towards trial on an excessive force claim in violation of 42 U.S.C. section 1983, assault and batter, intentional infliction of emotional distress, a violation of California Civil Code section 52.1 and a failure to train.

Iowa Highway Patrol and Iowa's Policemen and Women Have A Dangerous Job

What do you get when you take 250,851,833 registered passenger vehicles, 46,876 miles of highway, and a man with a badge? This is not the opening line of a clever joke with a cute punch line. In this scenario, it's pretty clear that in a confrontation between two ton vehicles traveling more than a mile a minute and a patrolman on the highway battlefield, man loses to machine. When a 3,000 pound car hits someone on foot there is no contest.

Unfortunately for those who work on the highway, there is no way to protect against cars on the road. The safety of any construction worker, tollbooth operator, or police officer rests on the margin of human error. The only thing standing between a patrol worker and disaster is a driver's safe operation of his or her vehicle. Distracted drivers are a major hindrance to a State Highway Patrol Officer being safe in his working environment.

According to the National Highway Traffic Safety Administration, nearly 6,000 people died in 2008 in crashes involving an inattentive driver. On a given day in 2008, more than 800,000 vehicles were driven by drivers talking or texting on cell phones. Distracted drivers are one of the leading causes of highway fatalities, and the risk is even greater for those who work on the nation's highways regularly.

The NHTSA has taken certain measures to ensure the safety of road workers. For example, when you drive through a construction zone, you probably notice a litany of bright orange signs warning you to drop your speed on pain of doubled speeding fines. Some states enforce a minimum penalty of $375.00 for speeding in a work zone, regardless of the base fine, regardless of whether workers were present or not. The penalty for hitting a worker is usually around $10,000 and jail time, depending on the state and extent of the worker's injuries. Work zones are also secured (in the loosest sense of the word) with temporary fences, flashing lights, light board signs, cones, and barrels, offering at least a visual alert to approaching. However, common sense dictates that if a car suddenly swerves out of its lane, the power of the Mighty Plastic Orange Cone isn't going to do much to protect Joe the Construction Worker from injury or even death.

Even so, construction workers are better protected than state troopers and patrolmen on duty on the nation's highways. While workers have zones blocked off and marked, officers have to pull onto the shoulder of the road to write a ticket, regardless of visibility or weather conditions. There are no threats of fine's posted in patrol zones, no blocked lanes, and most of the time, vehicles barely change speeds when passing a pulled over car. With no fluorescent vests or signs warning drivers to be careful two miles in advance, officers have no reliable protection against stray vehicles on the highway as this video demonstrates:

Take for example the case of Des Moines Police Sgt. Larina Blad. On August 15, Sgt. Blad was struck by a 4,800 pound Dodge Durango driven by a man with three prior OWI convictions. The driver, who later tested at more than two times the legal blood alcohol limit, dragged her more than a block and a half before stopping. The radio dispatch as reported by Radio Iowa indicates just how tough is this officer.

"What happened?" the dispatcher asked. "I’ve been run over," Blad replied. "I’ve been run over." The dispatcher sent "all units" to the scene. "I’ve got medics rolling already," the dispatcher told a policeman who had arrived at Blad’s side. "Is it a hit and run?" the officer asked.

The dispatcher replied: "It definitely sounds that way, yes." The suspect, 24-year-old Irving Cartagena, was allegedly driving drunk and his license had been revoked. Cops caught up with the suspect who was driving a white Chevy Tahoe. "Subject in custody?" the dispatcher asked.

Sgt. Blad, who vowed to return to work by the end of the week, was lucky not to have suffered more severe injuries in the accident. However, the same cannot be said for the roughly 70 officers who are killed in traffic related incidents each year while in the line of duty. According to the National Law Officers Memorial Fund, the majority of officer deaths for the past 11 years have been traffic related.

We can all help prevent these tragedies by driving safely and remaining alert for the sake of Iowa Highway Patrol officers, workers, passengers, other drivers, and ourselves. Leave your cell phone in your purse or pocket until you are safely parked. Avoid driving while tired or intoxicated, and always exercise caution when you see highway workers of any kind. Beyond that, it may be time to petition lawmakers to instate harsher penalties for repeat offense OWIs so that the roads are safer for everyone.

What do you get when you take 250,851,833 registered passenger vehicles, 46,876 miles of highway, and a man with a badge? The answer depends on how safely we drive. Do your part to protect the safety of highway patrol workers.

Highway Patrol Work is Dangerous

(go to 1:10 of the video)

On her knees, Cincinnati Police tase Daughter of City Councilman

Cincinnati Police Department, Ohio – August 28, 2009 – Teenaged daughter of City Councilman Tased, Charges: She’s accused of obstructing official business and possessing an open container.

A videotape of the incident recorded from a camera in one of the police cruisers doesn’t show the tasing, but other officers on the scene have told the Chief that Thomas was on her knees with her hands up.

"What we’re trying to accomplish here is for a citizen to submit to arrest," the Chief said Friday. “If a person goes to their knees or puts their hands up, I’m here to tell you that with 38 years of experience, that person is submitting to arrest. They’re not being combative. They’re not being threatening. When you’re on your knees, hands up, that means ‘I give up.’"

Memphis, Tennessee - the City of Memphis has said no to the police carrying Tasers and there is a Petition circulating for congress to hold hearings on the number of deaths being caused during an arrest where this non-lethal weapon is used.

Los Angles, California – August 27, 2009 – Shocked three times with a ‘stun gun’ the man died.

Montgomery County, August 27, 2009 – After an argument over a bicycle a man was tased and charged with domestic assault.

Alabama - Never Pass the Sobriety Test – You Could Be Tasered – Fear is the Standard – Punishment the Norm

http://www.youtube.com/watch?v=EmByfTKKUV4

Newest Taser Weapon – August 2009 - Taser XREP – Slight problem develops with users ability to aim it.

New Scientist reports:

In test firings, [the Taser XREP] proved difficult to aim, as the aerodynamics of the projectile caused it to fall below the aiming point at a range of 20 metres. “Any lack of accuracy means a greater risk of hitting an unintended part of the body and therefore greater risk of injury,” says security researcher Neil Davison.

New Scientist – August 26, 2009 – Long-range Taswer reignites safety debate

Government-funded tests on initial versions of the new Extended Range Electronic Projectile (XREP) have revealed possible health risks to people on the receiving end, New Scientist has learned. The manufacturer, Taser International of Scottsdale, Arizona, says the issue has been addressed in redesigned devices, but these have yet to be independently tested.

Unlike the current Taser X26, which fires darts attached to short wires, the XREP is wire-free. Its projectile, the size of a shotgun cartridge, is designed to pierce the target's skin and contains battery-powered circuits that deliver a debilitating shock. It has a range of 20 metres or more, compared with 5 metres for previous Tasers.

Glenrock, Wyoming - A 76-year-old riding an antique tractor in a parade and the police Tased him because of an argument over where the parade should stop. No charges will be filed.

Arizona City, Arizona – A 37-year-old mand died of what is reported to be cardiac arrest after being Tased. The need to stop was a traffic violation.

The suspect resisted arrest and the deputy tasered the man.

Police say the taser was not successful on the suspect and he continued running until collapsing to the ground. Officers said the suspect had gone into respiratory and cardiac arrest.

Corpus Christi, Texas – August 24, 2009 – A 67-year-old woman was robbed by an unidentified woman using a stun gun.

The thief is described as a Hispanic female, 18 to 23-years-old, 5' 1", 110 to 125 pounds with brown eyes and brown hair. 

Taser International Inc (TASR:NASDAQ) – Stock price closed at $4.44 on September 2, 2009.

Shares of TASER Int'l (TASR) Fall 2% After French Court Suspends Use of Stun Guns For Local Police

1:41 pm ET 09/02/2009- StreetInsider

Shares of Taser Int'l (Nasdaq: TASR) are down almost 2% today after reports that the French court has suspended the use of Taser stun guns for local police.

Dow Jones reports that the Taser stun guns were given to police without proper training and safeguards.

The State Council, which is the highest court of appeal in France, rejected a September 2008 government decree allowing France's 20,000 local police to carry Tasers.

Currently, 4,615 Tasers have been issued to French police.

... and that folks is the news.

Mother Tasered for Asking a Question files Suit

I’ve been covering the use of Tasers and what appears to be both an abuse of power by law enforcement along with embarrassment for the rest of the department. Take a look at the arrest of this mother, Audra Harmon, with children in the car, stopped for speeding and who asks to see the radar reading on the radar gun. Appearing to be caught off-guard and simply intolerant to being questioned this Onondaga County Deputy takes out his taser orders the woman back into her car; and when she complies he pulls her out of her car to taser her.

How is this not criminal conduct? How can anyone justify this use of force? Watch the video and see if you agree with the woman filing a lawsuit against the police department.

Now that you’ve seen the video did you see the officer pull the woman down and into the lane of traffic without first looking to make sure she wasn’t going to get run over?

A police video captured by a dashboard camera shows Deputy Sean Andrews yanking Audra Harmon out of her minivan by the arm and knocking her down with two Taser shots last January.

Harmon was charged with disorderly conduct, resisting arrest and going 50 mph in a 45 mph zone. Her lawyer says the district attorney's office dismissed the charges after watching the videotape.

See also, NY mom Tasered at traffic stop files notice to sue

Grappling with issues of police misconduct, brutality, excessive force, assault, battery and pressures of being an officer.

From time to time I get asked for legal advice that has a broader audience and this is one of those Q&A’s. This is about police brutality, or excessive force, assault and battery, finding the right lawyer, lawsuit economics, the dangers of law enforcement and general human nature.  Stick with me and read through to the bottom.

Question: My son was exercising visitation with his daughter; there were NO legal custody papers at the time. A sheriff deputy came to the house, told my son he had to give the child to the mother. Witnesses say my son didn't say a word but turned and walked back inside the house. As he turned to go back in the house the deputy grab him from behind, punched him 3 times, pushed his head onto a 4x4 post, threw him to the ground, handcuffed and arrested him.  I tried to get my son out of jail that night; I took 3 witnesses with me stating my son had done nothing wrong, he hadn’t even spoke a word. The jailer refused to release him until the next morning. I have pictures of some scratches and a black/blue eye. In the weeks that followed my son was charged with disorderly conduct which was later dismissed due to 'in the best interest of justice'. We file a complaint about the assault but the County Attorney did nothing with filing charges against the officer. Several months later the deputy was fired for aggressive behavior. Do we have a good case against the county? And how do we find a good attorney to take it?

Answer: First of all I hope your son is alright and doesn’t hold this against all law enforcement. One bad apple can spoil an entire department.  Based on what you have reported I do believe your son has a case for false arrest, excessive force and assault and battery. (In Constitutional language it’s called excessive force a part of the prohibition against cruel and unusual punishment. The popular name is police brutality.) The tough part will be finding a lawyer willing to take the case due to the amount of damages not being very great or sufficient to make the case economically feasible.  

You should understand that the County Attorney is nothing more than a politician who is protecting the County from civil liability. If you really want justice then work for his ouster during the next election. The deputy is already fired so some justice has been done. 

I’ve tried a case just like this one. It was in Burlington, Iowa and the officer and City were found liable to my client. My client’s injuries were much more extensive, although he had no broken bones, ruptured disc or brain injury. He was awarded $33,500.00 in compensatory damages and the city and officer were slapped with a $100,000.00 punitive damage award.

In another case my client was beaten by the Des Moines Police Department and that case was settled for $100,000.00.  He suffered much more than a few scratches.

Here in Des Moines the Des Moines Police Department have their own recent issues to grapple with.

Two Des Moines police officers accused of brutality in connection with a traffic stop last year have been placed on paid leave.

Officers John Mailander and Mersed Dautovic were put on leave Monday after investigators with the Des Moines Police Department's Office of Professional Standards discovered new information, said police spokesman Sgt. Vince Valdez.

"As a result of the investigation, we received recent information about inconsistencies during interviews," Valdez said. He declined to elaborate.

The point is you need quite a bit of physical damage and evidence to make these cases worth the time and money it takes to litigate them. And you need good solid witnesses, a fact prevalent in each of the two cases noted above.

In defense of the police I will say they have a tough job under extremely dangerous conditions. I don’t offer this to justify the deputy’s actions just to help you and your son put the bigger picture in perspective. I can tell you’re angry and it’s justified. Unfortunately that and $3.50 will get you a cup of Joe at the local Starbucks; and nothing more. This might be a case where you’re better off just forgiving and moving on. It appears to me you are both better people than this officer ever will be and that justice has been done with his being fired. This past week I added your message to my FAQ category on the Lombardi Law Firm website and this blog, The Verdict.

In defense of the police I will say they have a tough job under extremely dangerous conditions. The Waterloo Police Department found that out when a simple domestic dispute turned into the execution style slaying of two officers.  Michael Hoing was only 28 and his partner, Wayne Rice just 27. Both were killed in the line of duty while responding to a domestic dispute.  I lived in Waterloo at the time and experienced this first hand. It wasn’t pleasant.  The Oakland California Police Department just recently had four officers slain in the line of duty. I don’t offer these stories to justify the deputy’s actions just to help you and your son put the bigger picture in perspective. This might be a case where you’re better off just forgiving and moving on. It appears to me you are both better people than this officer ever will be and that justice has been done with his being fired.

Between 1996 and 2005 there were 575 police officers killed. The statistics are encouraging in that the rate of police officer deaths is on a decline.

The County Attorney would go along way in simply offering an apology to your son.

Homicide trends in the U.S.
Law enforcement officers killed

The number of law enforcement officers killed in the line of duty has declined since the early 1970's

Between 1996 and 2005, of the 575 officers killed --

• 26% were in arrest situations
• 18% were in ambush situations
• 18% were making traffic pursuits/stops
• 17% were on disturbance calls
• 12% were investigating suspicious persons/circumstances
• 10% were in other situations

Of the 662 assailants identified in the killing of law enforcement officers from
1996-2005 --

• more than half had a prior conviction
• 2 out of 5 had a prior arrest for a violent crime.

Most law enforcement officers are killed with firearms, particularly handguns

The greatest proportion of the recent decline in murders of law enforcement officers is attributable to the decline in handgun murders.

To view data, click on the chart.

Source: FBI, Law Enforcement Officers Killed and Assaulted, 1973-2005
Additional information about the data used in Homicide trends in the U.S.

Law Enforcement Officers Feloniously Killed

Year	Total killed*
1973	134
1974	132
1975	129
1976	111
1977	93
1978	93
1979	106
1980	104
1981	91
1982	92
1983	80
1984	72
1985	78
1986	66
1987	74
1988	78
1989	66
1990	66
1991	71
1992	64
1993	70
1994	79
1995	74
1996	61
1997	70
1998	61
1999	42
2000	51
2001	70
2002	56
2003	52
2004	57
2005	55

* The 72 deaths that resulted from the events of September 11, 2001 are not included in this total
Source: FBI, Law Enforcement Officers Killed and Assaulted, 1973-2005

     See also Additional Information About the Data for details about weighting and imputation.

To the chart based on these data | Download spreadsheet version (.csv file)

Law Enforcement Officers Feloniously Killed

Year	Total killed*	With handguns	With other guns	Other methods*
1973	134	93	34	7
1974	132	95	33	4
1975	129	93	34	2
1976	111	66	28	17
1977	93	59	24	10
1978	93	67	24	2
1979	106	76	24	6
1980	104	69	26	9
1981	91	69	17	5
1982	92	60	22	10
1983	80	54	20	6
1984	72	46	20	6
1985	78	58	12	8
1986	66	51	11	4
1987	74	49	18	7
1988	78	63	13	2
1989	66	40	17	9
1990	66	48	9	9
1991	71	50	18	3
1992	64	44	11	9
1993	70	50	17	3
1994	79	66	12	1
1995	74	43	19	12
1996	61	50	7	4
1997	70	50	18	2
1998	61	40	18	3
1999	42	25	16	1
2000	51	33	14	4
2001	70	46	15	9
2002	56	38	13	5
2003	52	34	11	7
2004	57	36	18	3
2005	55	42	8	5

* The 72 deaths that resulted from the events of September 11, 2001 are included in these totals

Source: FBI, Law Enforcement Officers Killed and Assaulted, 1973-2005
     See also Additional Information About the Datafor details about weighting and imputation.

 

 

Driver Safety: Wrong-side Accident Round-up, including Iowa

I saw a few stories on wrong-way drivers and earlier wrote about them. That story lead me to several others and low and behold I found that wrong-way accidents aren’t as infrequent as I first assumed. Just in these past few weeks I’ve found quite a few and thought to report on a few to see if there are similarities. I’m still not sure I see any, except drinking while driving don’t work.

Iowa – February 13, 2009 - A Buick Station Wagon being driven by Theodore Springman and a Dodge Dynasty driven by Rodney Fisher were involved in a head-on crash on I-380 in the northbound lanes of traffic. Springman was driving south in the northbound lanes of travel. The collision occurred around 1:00 P.M. yesterday, Friday, February 13, 2009. Both men were taken to Cedar Rapids’ St. Luke’s Hospital.

Montana - February 13, 2009 - Driving in the eastbound passing lane on I-90 in Gallatin County, Montana.

Several vehicles reportedly swerved to miss the car. A Dodge Durango, traveling east on I-90 at mile marker 317 tried to avoid the car and struck the median, according to the affidavit of probable cause. The Durango sustained extensive damage and its female driver was taken to the hospital for possible head, neck and back injuries, court papers state.

The husband of the woman driving the Durango located a 1989 Ford Festiva that matched the description of the wrong-way driver's vehicle and contacted the car's driver. The husband reportedly told authorities that he smelled alcohol on the defendant's breath and told him to remain while he notified Gallatin County Dispatch.

New Mexico – February 13, 2009 – A wrong-way car collides with school bus of middle school children injuring four students. City street with no report of driver’s condition or reasons for driving the wrong way on the roadway.

Illinois – February 5, 2009 – Drunk driver heading the wrong-way on I-255 resulting in the death of three people. Funeral services were held on this day. This wrong-way driver was driving drunk and faces three counts of reckless homicide. The dead include the 32-year old aunt, a 9-year old boy and a 28-year old man.

Michigan – February 12, 2009 – For reasons unknown the driver of a pickup truck drove the wrong-way down an exit ramp, entered U.S. highway 31 northbound in the southbound passing lane causing a three car collision resulting in the death of one and injuring another.

“A three-car crash this morning on southbound U.S. 31 between Laketon and Sherman resulted in one death and injuries to another driver.

Muskgon Police Department Sgt. Monica Shirey said around 7 a.m. a man driving a pickup went the wrong way down the off ramp on southbound U.S. 31 at the Sherman exit ramp.

"We have a witness who said a man driving a pickup truck went the wrong way. He started going northbound in the sounthbound lane on U.S. 31."

Shirey said another vehicle swerved to miss him but the Jeep behind him did not see the pickup truck and they hit head-on.

"The driver (of the Jeep) had no time to make any evasive moves," Shirey said.

Upon impact, the pickup truck flipped over the Jeep into the median, killing the driver.”

England – February 12, 2009 - Using a tire flattening device the police stopped a 54 year old man who drive nearly 20 miles the wrong-way on A-38. No reasons were given for the driver’s decision to drive the wrong way. No one was injured or killed.

Texas – February 12, 2009 – At about 3:30 A.M. a person driving a sedan headed the wrong way on the W. Sam Houston toll way.  The driver of the sedan died, the passenger was taken to the hospital in critical condition. The other vehicle was a pickup truck was injured and is in critical condition.

Florida – February 10, 2009 – “A 55-year-old man died early Sunday morning after he struck a car while driving his motorcycle the wrong direction on Little Road in Pasco County late Saturday night.

The Florida Highway Patrol said Thomas McCormick of New Port Richey was driving his 2007 Harley-Davidson motorcycle south in the northbound lane of Little Road near Bourbon Street and collided head-on with a 1996 Chevrolet about 11:10 p.m. Saturday. McCormick, who was not wearing a helmet, was taken to Bayfront Medical Center and listed in critical condition. He died at 3:45 a.m. Sunday, the patrol said. The car's driver, Ava Corbin, 41, and a passenger, both of New Port Richey, received minor injures, the accident report said.”

England – February 11, 2009 - Driving the wrong-way wasn’t the smartest thing for this criminal to do. After she was stopped the police smelled pot, conducted a search, discovered her stash, then searched her house and found what they believe to be cocaine. Oops this was not her day.

Illinois – February 10, 2009 – Trying to avoid police and evade arrest this man headed the wrong-way onto Highway 242 at which point out of concern for the safety of others police stopped the pursuit. The stolen car was later found and the driver is still being sought.

California – January 28, 2009 – The Camry driver was approaching Interstate 405 at about 5 a.m. when he crashed into the officer's car, according to the California Highway Patrol. Both cars burst into flames and both men were pronounced dead at the scene. As the officer's body was put into a coroner's van, police, firefighters and CHP officers draped his body in an American flag and saluted.

Massachusetts – January 23, 2009 –  Driver and officer died./ The Culver City police Sgt. Curt Massey was driving eastbound in West Los Angeles when a Toyota Camry heading the opposite direction collided with the officer.

Massey was a 17-year veteran of the Police Department who had received many awards and commendations, said police Chief Don Pederson. Massey was married with three children.

Massachusetts – February 7, 2009 – Attleboro, Police cruiser struck head-on Route 95 around 4:45 a.m. between exits 2 and 4 in the southbound side of the highway.

New Mexico – February 5, 2009 – Wrong-way driver drunk drving charges near Grants on Highway 40 at mile marker 72.

Oregon – February 6, 2009 on I-5 the wrong-way driver crashed into a barrier.  This is the one story providing some ideas and warnings of how to protect yourself.

About wrong-way drivers

Wrong way drivers present an obvious danger to all motorists on our highways. 

The most recent available crash statistics from the National Highway Traffic Safety Administration indicates wrong way drivers are involved in 1.5 percent of all fatal crashes.

Drivers who travel the wrong way on one way highways generally fall into one of our different categories:

• Intoxicated driver
• Older drivers who easily get confused
• Intentional drivers (example - trying to avoid traffic jams / congestion caused by crashes)
• Inattentive drivers who mistake an off ramp for an on ramp

OSP and ODOT provided the following safety tips and information related to wrong way driver situations:

• Watch far ahead for signs of a possible wrong way driver, looking for signs similar to pending problems or developing emergency situations such as other traffic braking or swerving to avoid something, or the obvious - headlights coming in the opposite direction.
• Caution against driving long periods in the inside lane on freeways, especially on curves.
• Be aware that wrong way drivers usually drive in the inside lane or inside shoulder, believing they are actually on a two-lane highway.
• Most common types of wrong way driver involved crashes are head-on or sideswipe crashes.