Tuesday, December 16, 2014

The Deterioration of Due Process in American Society

Imagine walking down the sidewalk on a sunny fall day.  Leaves are crunching beneath your feet, wind is whistling through the tree branches above your head, and squirrels are chasing around after the few remaining acorns on the ground, preparing for the long winter ahead.  Life.  Is.  Good.

Then, out of nowhere, a police car slides up on the road beside you, activating its lights just as it slows to a stop.  Two officers step out of the car as they pull up to the curb.  Neither officer has anything in their hands.  They don't immediately look over in your direction, but you're the only one on the street, so you assume they must want to talk to you.

One of the officers walk in front of you, stopping you from continuing along your path.  The other stands at a 45 degree angle between you and the street, stopping you from going pretty much any other direction, as well.  The officer in front of you asks to see some identification.  You ask the officer what seems to be the problem.  He simply re-requests your identification, declining to give you any information about why he and his partner have stopped you.  You again ask what this is all about, at which point the officer standing behind you walks up to you, grabs your left arm, twists it behind your back, and forces you down to the ground harshly.  As that officer is putting handcuffs on you, the other officer reaches into your back pocket to remove your wallet.  He takes your driver's license out and takes it with him to the squad car to run a check on you as his partner sits on top of your prone body with his right knee digging into your spine.

The officer with your wallet comes back from the cruiser and tells his partner that you don't have any warrants or priors.  His partner doesn't ease up on your back in the least.  You are finally told that you meet the description of someone accused of breaking the law.  What law would that be, you ask?  You tell that that this is ridiculous.  You've never done anything illegal as far as you know.  They don't listen to you.  They don't respond to your question.  They don't have to.  You're told that you will be heading to jail immediately.  Both officers take every opportunity to rough you up on the way over to the car.  They shove you face first into the back seat.  You smash your forehead against the handle on the opposite side door, opening up a gash above your left eye.  The officer tells you they'll fix it once you're secured in your cell.  You're told to stop complaining or they'll give you another injury to make you forget about your eye.  You keep quiet all the way to the station.

Once you arrive at the jail, you're thrown into a cell by yourself.  You aren't given any time frame for how long you can expect to be there.  You ask when you'll get to see a judge, but aren't given an answer.  2 weeks go by.  No answers.  A month.  Nothing.  6 months.  Nothing.  Finally, after sitting in that cell for over 9 months without going in front of a judge, without being allowed to contact an attorney, without ever being given a chance to call your family and let them know where you are, and without ever being told what you are being accused of doing, the cell door is opened and you're released.  The officer tells you to get out of his site and not to do "it" again.

Sounds like a nightmare, right?  Sounds like something out of a dystopian novel by George Orwell or something, right?  The truth is that many countries around the world operate their justice system under rules of law very similar to the scenario above.  Innocent and guilty are words that mean nothing, because there is no determination of facts.  There is no jury of your peers.  There is no impartial judge presiding over your case.  There is simply you versus the government.  Many other countries have a system of due process ostensibly put in place, but the process is really nothing more than a skeleton with no real substance.  The reason this sounds foreign to us as US citizens is that we are afforded Due Process of the Law by the Constitution of our land.  US Due Process requires that we are given notice of any charges brought against us by the government, that we have an opportunity to grieve those charges, and that we are allowed to appeal the outcome of that grievance if our case is not resolved to our satisfaction.  We can't be incarcerated indefinitely without reason.  We have the right to a trial by our peers.  We have the right to face our accuser.  We have the right to be represented by a lawyer to ensure that our rights are upheld correctly.  All of these things are important tenets of our Due Process system in the US.  They are the reason that the above scenario seems impossible.

Or, should I say, it used to seem impossible.  Slowly but surely, our right to Due Process has been chipped away at in this country, leaving us with more protections than most, but less than we used to have.  A lot of people think this deterioration is a recent thing, but it goes back nearly a century.

After the bombing of Pearl Harbor in 1941, Japanese Americans were placed into Internment Camps as a result of an Executive Order by President Roosevelt that allowed local military commanders to designate certain zones "military areas" and gave those commanders the authority to remove any and all persons from those areas as they deemed it necessary.  Over 100,000 Japanese Americans -- American citizens -- were placed into camps as a result of this order.

Another well-known example of the government placing limitations on due process is the Patriot Act.  This is an act commonly attributed/blamed to/on George W. Bush, but it was actually strengthened and extended by Barak Obama, as well.  The Patriot Act significantly reduced the requirements for searches, seizures, wire taps, surveillance, and other covert acts when they are related to suspected terrorist activity.  This act has, in general, been used to justify the detention and surveillance of foreign citizens, but it has also been used as justification for searching the property and business records of US citizens.  Many of the detainees at Guantanamo Bay are being held indefinitely with no chance of trial under the Patriot Act.

The most recent example of such an infringement is the National Defense Authorization Act (NDAA), which was signed into law by President Obama on December 31, 2011.  The NDAA, in a nutshell, allows the US government to detain US citizens indefinitely without the right to due process if there is reason to suspect that the person being detained is involved with forces who oppose the US or their allies.  This has led to conversations among American decision makers as to whether the NDAA would allow them to target US citizens suspected of having ties to terrorist organizations for drone strikes.  This action would essentially eliminate any due process that citizen is guaranteed under the Constitution and allow for their execution without any formal arrest, trial, appeals, or other remedies.  That's a scary, scary path to consider.

The question that we have to consider is not regarding what has already happened, though.  What we really need to be worried about is where all this is heading.  The only way to truly stem the tide of this trend is to sway public opinion.  Based on the general public reaction to some recent smaller-scale incidents involving the concept of due process, it seems like we are a ways away from that reality.  In three such recent incidents, police officers took matters into their own hands by causing the death of people suspected of crimes.  Eric Garner, Mike Brown, and 12-year-old Tamir Rice have all fallen at the hand of police officers under varying circumstances prior to being given an opportunity to defend themselves in the courts.  While there has obviously been a fair amount of blow-back from the public in response to these issues, most of it has been race-related, not due process-related.  Removing the aspect of "white officer kills black man" from these scenarios still leaves us with a troubling number of people who are of the opinion that if you don't want to risk being killed by police, that you should try not committing a crime or resisting arrest in the first place.

When did we, as a nation, start to feel this way?  That is a tough question to answer.  Ultimately, it is a difficult issue to address.  John Adams, the second President of the United States, once wrote that we should aspire to be "a government of laws, not of men."  The idea behind that thought is that we should be governed by the laws as they are on paper as opposed to being governed by arbitrary decisions of individual government officials.  The further we get from Mr. Adams and his ideals, the further we get from that ideology as a whole.

Now, we seem to be all too quick to make excuses for government officials who make arbitrary decisions that affect life, liberty, and property for our citizens.  We make assumptions that favor the government official.  We hear a police officer describe a situation and take his words as the unimpeachable truth.  We listen to yet another prosecuting attorney tell us how the legal process has spoken as yet another grand jury fails to so much as even indict yet another police officer for causing yet another death to an unarmed citizen, and we nod our head in agreement.  We want the system to work, so we find ways to justify saying that it does.

The only way any of this changes is if we make it change.  Stop looking the other way when our government takes away our freedoms in the name of national security.  Stop justifying police killings by attacking the character and the intentions of the deceased.  Stop assuming that what your told by the government is the way things really are.  Until we can do those things and really look critically at our system, things are just going to get worse.

This is not a black vs. white thing.  It is not a liberal vs. conservative thing.  This is a debate that we should all be on the same side for.  We all want our freedom.  Freedom was what this country was founded upon.  Due process is a concept that keeps us free from arbitrary rule, and we are quietly watching it deteriorate around us.

It's time to make some noise.

As always, the content of this website is intended for entertainment purposes, only, and is not intended to be construed as legal advice or legal advertising.  If you are in need of legal advice, please contact a licensed attorney in your jurisdiction for personalized information.

Monday, December 1, 2014

Avoiding Confrontations with Law Enforcement -- Dos and Don'ts

The issue of confrontations with police officers -- whether physical in nature or involving weapons -- has been a major topic in the news lately.  The Mike Brown shooting in Ferguson, MO is far from the only issue police have had involving violent confrontations, but it certainly was a major rallying point for the public.  There are a lot of questions being asked about how to avoid these terrible situations.  Nobody wants to see continued incidents of violence involving police officers that end in injury or death to citizens.  Police don't want this.  Attorney's don't want this.  The courts don't want this.  But, most of all, the citizens that continue to be the victims in these situations don't want this.  So, what can be done to eliminate these situations?  What can you do, personally, to ensure that you are the next victim of police violence?

In order to figure out what has to be done to fix the problem, we must first understand what is causing the problem.  This is a much more complicated issue than a lot of people realize.  I'm not talking about incidents of violence that are clearly initiated by civilians.  When someone brandishes a weapon at a police officer, they're doing so with the knowledge that they might not come out of this encounter alive.  The incidents I'm referring to are the ones in which unarmed citizens are killed by law enforcement.  People who claim that the issue is overzealous police officers who are too quick to use their service weapons are ignoring that there are always two parties involved in these confrontations.  People who claim that the issue is citizens not respecting the police and acting inappropriately towards them aren't taking into consideration that the penalty for being insubordinate should not be death.  There is no easy answer to this issue, but there are some things that I believe the average citizen can keep in mind when dealing with police officers that can help to diffuse these situations before they explode into violence.  I'm going to give the same advice here that I give to my paying clients.  The following are three general things to remember when confronted by a police officer, and three actions that you can take (or not take) when confronted by a police officer to ensure that the situation doesn't end in tragedy.


1.  Police officers are trained to treat every confrontation with a suspect as a potential life or death situation.  This might be something that seems crazy to the average person, but it's a completely reasonable stance to take for officers.  While the VAST majority of people who have encounters with law enforcement pose no threat to the officer's safety whatsoever, all it takes is for an officer to let his guard down at the wrong time to fall victim to someone who does pose a threat.  Mendota Heights, MN police offer Scott Patrick learned was shot and killed in August of 2014 during what probably seemed like an innocuous enough traffic stop.  Officer Patrick was unfortunate to just happen to stop a motorist who had numerous outstanding warrants for his arrest and was driving a car that was not yet registered to him, making it impossible for Officer Patrick to know who he was about to happen upon.  This is a very real concern for officers, and they often act accordingly in situations that seem routine to the average person.

2.  Police officers don't know you.  We, as citizens, expect to be given the benefit out the doubt when dealing with police, but it's important to remember that the officer (probably) doesn't know you.  Eventually, when they ask for your license and look up your criminal history on their computer, they'll know a little bit about you, but when they first confront you, they have no idea who you are or what you are capable of.  It's important to remember this when first encountering an officer who clearly thinks he/she has business with you.

3.  The majority of police officers are good people.  We tend to hear about the ones who do bad things.  This guy from Minneapolis, or these guys from Saint Paul.  What we don't hear about are all the times officers do amazing things.  Just like I try to remind people that the good lawyers vastly outweigh the slimy ones, the same can be said for police officers.


1.  Keep your hands where the officer can see them.  This can be tougher to do than it seems.  Something as benign as putting your hands in your jacket pocket or reaching for your wallet can seem like an aggressive move to an on-edge officer.  Keep your hands out of your pockets, don't reach inside your jacket, don't put them behind your back if you're facing the officer, and don't reach under your shirt or into the waistband of your pants.  If the officer can see your hands, they don't have to worry about what they might be doing, and they'll be much less likely to act rashly due to feeling threatened.

2.  Don't use profanity or call the officer names.  Confrontations with police officers can certainly get heated, but it's important to remember that the language you use can ratchet up the intensity unnecessarily.  By using profanity or using slurs towards the officer, you're telling them that you don't respect their position.  Once an officer doesn't believe you care whether or not he's a police officer, they're going to assume that you'll treat them like you'd treat any regular citizen.  This can cause them to be more short-tempered and have a quicker trigger (no pun intended).  By watching your language and addressing the officer in at least a somewhat respectful manner, you will greatly increase your chances of exiting the situation without a violent confrontation.

3.  Do not go out into public under the influence of mood-altering substances.  This is a really important point that is completely under your control 100% of the time.  I know that people like to go out to bars and have a few with friends, but it's important to keep yourself under control.  A high percentage of violent encounters involving police also involve intoxicated citizens.  By controlling your alcohol intake or not doing any drugs (even marijuana) before heading out into public, you're going to A) improve your decision-making, which will limit the chance that police will have any business with you, and B) decrease the chance that you act inappropriately if you are confronted with the stress that accompanies dealing with law enforcement.  Remaining clear-headed could be the difference between walking away unscathed or getting into a fight with law enforcement that you are not going to win.

My point in writing this advice to everyone is not an effort to deflect blame belonging to police officers for these unfortunate situations that seem to be happening more an more.  In situations where unarmed citizens are killed by law enforcement, the officer absolutely should not escape culpability for the death.  However, we as citizens have to take responsibility for our actions.  If you follow these recommendations, you will decrease the chances of you finding yourself in a violent encounter with a police officer exponentially.

My heart goes out to all those who have lost loved ones in encounters like this.  There are a lot of people in the country who are using this opportunity to demonize law enforcement.  The truth is that we as a society have to play a role in ensuring that no more families have to know the pain of losing a member to violent encounters with police.  The best way for you to do your part is to be respectful and use discretion when dealing with police offers.  Remember that they have a tough job to do, and you being a sullen jerk after being pulled over isn't going to make it any easier.  Police officers aren't perfect, but the majority are out there doing their best.  Keep that in mind, treat them accordingly, and these kinds of preventable incidents will become a thing of the past.

As always, the information presented in this blog is to be used for entertainment purposes only and is not to be construed as legal advice.  If you or a loved one are in need of such advice, please contact a licensed attorney in your jurisdiction for personalized information.