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By Joshua Brownlee (thanks to Dr. John Brownlee for edits)

One of the hardest things about being a lawyer is saying “I can’t help you.” A few days ago, I had a mother come into my office asking for help. In 2003, her son became unstable. He was on drugs and started acting erratically. The mother called 911. When the police arrived they saw her son with a knife and shot him three times. Later investigations conducted by law enforcement stated that he was 30-40 ft. away from the officers when the shots were fired. It was held the officers were too far away to be in danger and deadly force wasn’t justified under the circumstances. The mother hired a lawyer (not me) and brought a civil rights case. In 2007, the individual officer was held liable and DeKalb County was not. The judge awarded 7 million dollars in damages. She won, so why was she in my office?

She was in my office because she couldn’t collect; she had never been paid. The mother had tried to collect two different times, but each time she was told that the former officer didn’t have enough income to garnish wages. The officer had resigned and moved to another state. She had to pay an investigator to track him down. She came to me because her judgment was in default from a lapse of time and she wanted to know how to revive it. She was justifiably upset. Her child was gunned down right in front of her and she had won in a court of law. Now, 13 years after her son’s death and 8 years after her judgment, nothing. Reading this article you may be tempted to cast your own judgment one way or another. Was it okay for her son to be on drugs and have a knife? Was it justified for the officer to act the way he did? 13 years later, all those questions have already been answered. 13 years later all I could do is refer her to another lawyer who specializes in garnishment and compassionately listen to her story as a fellow parent who loves a son.

This story illustrates a large problem with civil rights litigation and the financial liability of police officers and the communities in which they serve. It is very difficult for a political entity to be held financially liable for a civil rights violation, due to existing case law.  More commonly an officer’s misbehavior is separated out from the law suit and he or she finds themselves individually liable, often without the kind of malpractice insurance that is regularly required of doctors, therapists, business consultants, and a whole host of other professionals.  This is catastrophic for both the officers and victims, but also creates a lack of transparency and accountability at the organizational level.  If individual officers were required to purchase or provided with individual “malpractice” insurance, then they would have a safety net, victims would be compensated, and there would be a third party involvement in collecting data, establishing procedures, and identifying risks.

The current landscape protects political entities and places the brunt of litigation on individual officers

Who is liable for damages is an essential part of any civil case. Historically, local governments and government officials have immunity that protects them from being sued by individuals. The anarchy in the Southern States following the American Civil War forced Congress to recognize people needed to have a legal mechanism to bring civil actions against government officials. In 1871, Congress passed the Klu Klux Klan Act to protect people from constitutional violations committed under the color of law. Specifically 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

(Emphasis added). 42 U.S.C. § 1983. From the first two words an important issue is raised. What does “Every person” mean? Is it only individuals or can municipalities and counties be counted as a person? In 1978, the U.S. Supreme Court held 42 U.S.C. § 1983 could apply to cities and counties if certain criteria were met. Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). While granting plaintiffs the opportunity to sue cities and counties, Monell also put up a very difficult hurdle for plaintiffs. One of the first responses from a city attorney in a civil rights case is something like:

Even if Plaintiff can prove there was a violation, the officer was not acting under the policies, customs, and procedures of the city government, therefore the city is not liable.

The response points out a big difference between civil rights cases and cases brought against a private company. The legal concept of respondeat superior does not apply. You don’t have to speak Latin to understand respondeat superior. It basically means an employer is responsible for the actions of his/her employees. So if a Pepsi truck driver hits your car on his route because he ran a red light, the company Pepsi could be held liable for the damages. This is true even if the company did nothing wrong. Cities and counties don’t have to worry about respondeat superior, even if a police officer intentionally murders your child. The U.S. Supreme Court has held that a government body’s liability under § 1983 occurs when there is “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Department of Social Services of New York, 436 U.S. 658, 690 (1978). In order to get the city or county to pay for damages, the mother must demonstrate that a police officer shot her child because they weren’t trained properly or they were following a particular city/county policy or procedure. There are certainly cases where this can be demonstrated. For example, in the death of Eric Garner, one of the issues in the case was whether New York City was training its officers to use improper choke holds or take down methods. If a plaintiff cannot demonstrate a policy statement, ordinance, regulation, or decision officially adopted; then there is no municipal or county liability.

What does all that mean? It means there are two different situations that need to be covered by insurance policies. The First is if the city or county is found liable because of a custom or practice. This scenario is difficult to prove in court, but is usually covered under existing insurance policies. The Second scenario is when only the officer is found liable. These cases are much easier to prove factually, but many cities and counties don’t carry insurance covering their individual officers. In Georgia, municipal governments are also protected by statute. Municipalities in Georgia don’t have to pay out unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available and then only to the extent of the limits of such policy. O.C.G.A. § 36-33-1. Georgia leaves it to individual municipalities to decide whether they purchase insurance or not. As you can guess, this leaves a hodgepodge of insurance coverage from city to city. Many small towns and cities have insurance coverage for their individual officers, while most counties and larger cities don’t cover officers. Regardless of a local government’s reasons, the choice to not insure individual police officers has very clear consequences:

Officers are left to fend for themselves in court

Municipalities and counties that don’t insure officers as individuals routinely throw the officers under the bus of civil litigation. In larger cities, supplemental insurance is available but left to the individual’s choice and risk. This is extremely troubling. Police officers fresh out of the academy will rarely choose to buy supplemental insurance when their starting salary is around $34,000. These young officers are learning on the job, they are probably going to make a mistake (just like most people who start a new job) and they are essentially working without a net in one of America’s most stressful professions. That being said, when an officer makes a bad call and causes damages by violating a person’s constitutional rights, the innocent person should be compensated. Many violations are caused by a widespread misunderstanding of the law by police officers. For example, police officers in Georgia have struggled with the issue of being recorded while on duty. The 11th Circuit Court of Appeals (Federal Appellate Circuit for Alabama, Florida, and Georgia) has held the “First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). Despite this 16 year old precedent, police officers have struggled with letting people record them with cell phones. I have personally had this come up in two or three cases. Despite the widespread pattern of behavior it can take dozens of individual cases and numerous years to demonstrate that pattern. The reason is simple. Officers have a “watch your back” mentality that encourages them to avoid getting caught as opposed to avoiding civil rights violations. This mentality has even been validated by the judicial system. The 11th Circuit held:

There is no controlling authority clearly establishing that once a police officer knows another officer has fabricated a confession in a police report for a warrantless arrest, that police officer has a constitutional duty to intervene to stop the other officer’s conduct.

Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999). Even if individuals are occasionally caught, nothing gets done to fix the institutional sources of the constitutional violations.  Depending on the offense, the officer who is held individually liable will often lose his/her job or get demoted. If that happens, how is the victim going to be compensated? How will the officer pay to defend himself in court once the municipality is dismissed as a defendant? Sometimes a police union or nonprofit may help pay legal fees for police, but the help may depend on how the officer was terminated. In the case of the grieving mother in my office, the officer failed to appear in court and moved to another state. Other options for outcast officers is to declare bankruptcy. An individual officer who is insured is much more likely to stick around for the whole process. People don’t have to entrench themselves into pro-police or pro-civil liberties positions with this issue (personally I think you can be both at the same time) because current policies on officer liability create a lot of suffering on both sides.

City or county attorneys place blame on individual officers rather than accept institutional responsibility

In the beginning of many § 1983 cases, individual officers and their corresponding city or county are listed as defendants. At first, a city or county attorney usually represents all defendants. In the beginning the city or county attorney will give some cut and paste denial to the media like “the city has reviewed the complaint and finds the claims baseless and fully intends to be victorious in court”. That is the line until it becomes apparent there is a blatant constitutional violation. Then the city or county attorney will try and have the officer held solely liable (much to the individual officer’s detriment) in order to save the municipality from paying out. It is important to point out, city and county attorneys sit with police officers during the litigation’s investigation, discovery, and depositions. Do police officers know what positions their lawyers are ready to take if the case goes sour? If an officer had their own insurance policy, they would also have their own lawyer to protect their interests.

Innocent people are left without compensation

For plaintiffs like the woman in my office there is no compensation except for a piece of paper in the form of a judge’s final order. An insurance policy may put limits on damages but at least some damages could be paid in compensation. Not being able to collect anything when your child is wrongfully killed by law enforcement is salt to an open wound. It’s no secret that even if officers are found liable in a civil case, the criminal case is usually dead in the water. An empty judgment, no criminal charges, and a lack of government accountability send shock waves of resentment in communities. These after-shocks go far beyond the individuals involved in a particular case. Carrying individual insurance wouldn’t solve every problem, but it would be a major step in acknowledging there is a problem and would bring a third party’s actuarial, risk assessment, and procedural accountability into the process.

Statistics and data to identify trends

Ask State Farm Insurance how many claims were filed by home owners in the City of Atlanta due to a tree falling on a roof which caused more than $1,000.00 in damage within the last 5 years. You will get a fairly accurate number. Ask them follow up questions about how many claims paid out? How many claims were fraudulent? Which neighborhoods in Atlanta are most at risk? Or how do they asses risk for trees falling on houses? You will get specific and surprisingly accurate answers. Ask the City of Atlanta how many officers were accused of excessive force? Wrongful arrest? Wrongful death? Which neighborhoods, age groups, tactics, and race have the highest concentration of specific constitutional complaints? Whatever answer is given (if any) will be viewed as vague, inaccurate, or manipulated. Most communities in conflict with police don’t trust law enforcement to keep reliable data on civil rights violations. Which makes sense when you take into account the before mentioned “watch your back” mentality that exists within police departments across the country. To be fair to law enforcement, their job is to protect and serve, not create spread sheets. That being said, a business professional would tell you that good data is the first step in improving processes, identifying issues, and solving problems. Having mandatory insurance and reporting for individual police officers allows a third party to analyze data to identify what works and what doesn’t. An honest look at the data will let police departments see where problems are coming from and how to improve: training, hiring practices, and standard operating procedures that reduce constitutional violations and litigation.

Monitoring officer behavior

90-95% of criminal cases end in a plea deal. See: Research on Plea Bargaining. Most of those plea deals are likely done before a defense attorney cross examines the arresting officers. This means officer behavior is rarely scrutinized by an outside third party or in open court, leading bad habits to fester. For a deeper analysis on this issue read Funding Public Defenders Isn’t Just A Nice Thing To Do. Unfortunately, municipalities and counties aren’t likely to start over hauling the criminal justice system anytime soon. This means we need to find another solution in the short term to monitor and encourage good police habits. Individual insurance policies give a third party the ability to monitor and analyze an individual officer’s job performance outside of the blue line culture.

How do we pay for it?

Increasing taxes is one option, but creating a special tax or tax increase in any jurisdiction will be filled with pitfalls. Luckily for police and municipalities, there is another option. Just about every police department in the state collects forfeiture money to put in their budgets. When police seize $1,000,000 in drug money that goes to the department budget. Currently police departments spend forfeiture money on tanks, stingray surveillance systems, new weapons systems, and countless other law enforcement wish list “tools”. Instead of gearing up for a terrorist attack that is statistically unlikely, shouldn’t we make a commitment to responsibly cover officers and victims from mistakes that are becoming all too common in every city and county of Georgia?

As a society we should encourage good police habits. Insurance policies can help discover and monitor law enforcement habits both good and bad. An insurance company can probably do the job much better than a single internal affairs officer or even an entire police department. Insurance policies for individual officers have the potential to cover victims, defend officers, track habits, and encourage better police behavior before litigation starts. Insurance policies for individual officers can have a real impact on actual people. It means officers don’t have to disappear or face bankruptcy if they get caught making a mistake, it means I won’t have to look for a garnishment attorney for a grieving mother who was denied justice.

By Travis Andres

If you find yourself in the unfortunate circumstance of needing a divorce you will have to navigate a complex legal process and make many difficult decisions about your family and finances under enormous emotional stress. To explain the process of divorce, it is helpful to begin with the final result. All divorces in Georgia are finalized by a judge’s written order, typically referred to as a Final Judgment and Decree of Divorce, or Final Decree for short. The terms of the Final Decree are either determined by the parties in a settlement agreement, or by the Judge after a trial. The Final Decree must resolve all issues in the divorce, including but not limited to alimony, child custody and visitation, child support, and property division – which includes assets and debts.

There are two basic paths a divorce can take, either contested or uncontested. The contested process is the default. The contested divorce process is long, arduous, and ultimately culminates in a trial. However, most divorces settle prior to trial, even if they begin contested.

A contested divorce means the parties cannot agree on all of the issues of the divorce. One spouse files a formal lawsuit so that the Judge can determine all of the issues in the divorce case at trial. Contested divorces can be extremely expensive. Both parties will often have to hire a lawyer, each charging by the hour and typically requiring a retainer. It is not uncommon for a contested divorce case to last eight to eighteen months. Depending on the complexity of the issues presented in the case and the complexity of the assets and debts contained in the marital estate, it could take even longer. Every divorce case is unique to the circumstances of the family, but a contested divorce case has a general procedure.

The Initial Pleadings – Petition for Divorce and Answer

The first step in a contested divorce case is filing the Petition for Divorce in the correct Superior Court. In a divorce case the parties are often referred to as Petitioner and Respondent. Petitioner and Respondent are the equivalent of Plaintiff and Defendant. The Petitioner (the party filing the Petition for Divorce) must serve the Respondent with the Petition for Divorce. Once the Respondent is served, he or she generally has thirty days to file an Answer to the Petition for Divorce. After the Respondent files his or her Answer to the Petition for Divorce, there is generally a six month discovery period.

Discovery

The discovery period is generally assumed to last for six months from the date the Respondent files his or her Answer. The discovery period can be shorter or longer depending on the circumstances of the case. The purpose of the discovery period is for both parties to gather evidence that will be used at trial. Many divorce clients find the discovery process to be invasive and irritating. Despite the frustration the discovery process is a very important part of a contested divorce case. In a contested divorce you are essentially asking a Judge that knows nothing about you or your family to decide a fair division of all of your assets and debts, and to determine the best scenario for your children. That requires a lot of information. Your attorney must be able to show the Judge evidence of everything you and your spouse own, every debt owed, and intimate details of your family dynamics in a relatively short period of time.

The Temporary Hearing

At the beginning of a divorce case, there may be a temporary hearing. Temporary hearings are generally limited to issues affecting the children. Custody, visitation, child support, alimony, and which party is entitled to reside in the marital residence are issues that are generally determined in a temporary hearing. A temporary hearing typically occurs in the first month or two of the contested divorce case. The issues decided in the temporary hearing are decided on a temporary basis and are all subject to change at trial. Although the issues decided at this stage are subject to change, the temporary hearing is very important. In practice the Final Decree is often very similar to the Temporary Order.

The Trial

At trial both parties have the opportunity to present their case. At trial the parties have to educate the Judge about their family. At the end of the trial a Judge will make a final determination of all of the issues that are contested in the divorce. Most divorce trials are bench trials, meaning that both parties present their case to a Judge without a jury. A party can request a jury trial in a divorce, but it is not very common. According to Georgia law, a jury cannot decide the issues of child custody and visitation. Only a Superior Court Judge can decide issues of child custody and visitation.

A contested divorce is an arduous and complex legal process. An experienced family law attorney can gather information, organize evidence, and present your best case at trial.

For more information about Divorce in Fulton and DeKalb check out:

http://www.dekalbsuperiorcourt.com/family-law/the-center/
https://fultoncourt.org/family/family-flic.php

by Joshua Brownlee

 

Officer Ness: Hello again, Aspasia isn’t it?

Aspasia: Hi Officer Ness, how are you? Are you off duty?

Officer Ness: Yeah, it’s my day off and I felt like having one of those fancy iced coffees.

Aspasia: Care to join me, I was wondering if I could get your opinion on something?

Officer Ness: Sure, although I’m not in a very good place today.

Aspasia: Sorry to hear that, what happened?

Officer Ness: A buddy from the police academy was chasing some burglary suspects through a neighborhood. I guess he caught up with them and they gunned him down.

Aspasia: That’s horrible.

Officer Ness: He was a really good officer, everyone at the precinct is down about it. I’m guessing you wanted to talk about the shooting on the Southside?

Aspasia: No, not anymore. I have a lot of respect for you as an officer and I don’t want to offend you.

Officer Ness: I don’t know what I’m offended by. I just have a lot of strong emotions when it comes to shootings.

Aspasia: I think you’re entitled to feel that way. It’s much easier to deal with both incidents separately instead of at the same time.

Officer Ness: It is, that’s why the news channels only play the one story. Doesn’t matter which one, they pick one and forget the other. I guess I am angry they give more coverage to the police shooting a civilian and his dog instead of the officer gunned down chasing suspects. I’m not saying it’s right to feel that way, but it’s how I feel.

Aspasia: But they were very different situations right?

Officer Ness: It seems that way, but I don’t know, I wasn’t there.

Aspasia: Your friend, why was he chasing the suspects?

Officer Ness: There was a 911 call about a burglary in progress. It seems that he ordered three men who matched descriptions to stop and they ran away. He called in to dispatch and chased after them. At some point they shot him.

Aspasia: Did he ever fire his weapon?

Officer Ness: It doesn’t appear that he did.

Aspasia: If he shot them first, he would still be alive?

Officer Ness: Probably, he was a former military guy and a top marksman.

Aspasia: Why didn’t he shoot them first?

Officer Ness: It was dark and he probably didn’t see a gun.

Aspasia: So he risked being shot in the dark rather than shoot a group of potentially unarmed men?

Officer Ness: Yeah, that sounds like him.

Aspasia: Your friend was a good officer and a brave man. I’m not sure about the officers on the Southside.

Officer Ness: Why do you say that? They had similar facts.

Aspasia: How so?

Officer Ness: The officers were responding to a 911 suspicious person call?

Aspasia: How many officers were there?

Officer Ness: Three.

Apsasia: Did they ever see a suspicious person?

Officer Ness: No, they only had a vague description of a house.

Aspasia: How did they know they had the right house?

Officer Ness: They didn’t. It was a vague description on the 911 call.

Aspasia: Did the officers have a relationship with the caller?

Officer Ness: No, just a stranger calling it in.

Aspasia: What did the officers do when they got there?

Officer Ness: They snuck into the backyard and went into the house through the back door.

Aspasia: Did they have a warrant?

Officer Ness: No, I think they would claim exigent circumstances.

Aspasia: What are those?

Officer Ness: Those are situations which exempt law enforcement from the warrant requirements of the Fourth Amendment. For example if an officer is in hot pursuit of a suspect, saving a person from imminent danger, or keeping evidence from being destroyed.

Aspasia: Which exigent circumstance would apply to that situation?

Officer Ness: Maybe keeping someone from eminent danger. The suspicious person could have been in the house and hurt the people inside.

Aspasia: But without a description or some distinguishing factor how do they know who is supposed to be there and who isn’t?

Officer Ness: They don’t.

Aspasia: Why did they shoot the dog?

Officer Ness: It was a pit bull, so I guess they thought it was attacking them.

Aspasia: Was it barking before they went in the back yard?

Officer Ness: No, apparently it was sitting with the home owner, his wife and their one year old child watching a movie.

Aspasia: So the TV was on?

Officer Ness: Yeah apparently.

Aspasia: So the police didn’t see light from the TV flickering in the windows? Burglars don’t usually sit and watch TV in a house do they?

Officer Ness: No they don’t. It sounds like the police didn’t look.

Aspasia: So the dog wasn’t barking and burglars don’t bring attack dogs to rob a house?

Officer Ness: Not on any burglary case I’ve worked on.

Aspasia: So they shot the dog because it started barking at them when they entered the back yard?

Officer Ness: I think they entered the back door of the house and it started barking. That’s when they shot the dog.

Aspasia: Were there indications of forced entry on the back door showing someone had kicked it in or broke the lock?

Officer Ness: No, the back door was just opened.

Aspasia: What about the home owner?

Officer Ness: Apparently the man went to go check on what the dog was barking at and they shot him.

Aspasia: Was he armed?

Officer Ness: No, thankfully he was unarmed.

Aspasia: Why thankfully?

Officer Ness: Clearly those officers were high strung, if he had been armed I don’t think he would have lived through it.

Aspasia: So police can break into your house without a warrant, shoot your dog, and then shoot you in front of your family. No consequences?

Officer Ness: No way there will be consequences. There could very well be criminal charges and most likely a civil case against the officers.

Aspasia: Do you think your friend would have done the same thing?

Officer Ness: No way.

Aspasia: Why?

Officer Ness: He would always put himself at risk before a citizen. Hell, he probably wouldn’t even shoot the dog if he realized he was in the wrong house. Knowing him, he would have let the dog bite him because he was in the wrong. Come to think of it, I don’t see him being in that situation in the first place. He knew when exigent circumstances applied and when they didn’t.

Aspasia: How come he knew but the officers on the Southside didn’t?

Officer Ness: Partly because of the character of the officer and partly because of how cases are brought in our jurisdiction.

Aspasia: What does criminal procedure have to do with it?

Officer Ness: In our jurisdiction prosecutors and judges don’t penalize defendants for bringing cases to trial or motions hearings. This means defendants aren’t forced to plea out their case.

Aspasia: I’m still not following.

Officer Ness: At a motion to suppress hearing or a criminal trial, an officer has to take the stand and justify his or her actions under oath on public record in front of a judge. Those hearings teach officers, especially young ones, the functional application of exigent circumstances. If they screw up the judge and defense attorney jump down their throat.

Aspasia: I see, isn’t there a less humiliating way to do it?

Officer Ness: Maybe, but training and manuals can only do so much. Young officers need to be in the field and have their police work scrutinized. When criminal cases are rarely challenged in court bad practices go unnoticed and get worse over time.

Aspasia: So why doesn’t the criminal justice system do that?

Officer Ness: There aren’t enough judges, prosecutors, and public defenders to handle the current cases. So incentives are put in place for defendants who resolve their cases quickly and penalties in the form of increased sentences for those that challenge the state’s case.

Aspasia:  But doesn’t that help get rid of people that know they are guilty?

Officer Ness: Sure, but sometimes you get a kid who is caught with weed but the search is bad or unconstitutional. The prosecutor or judge may have a policy of doubling the sentence if the case goes to trial or motion to suppress hearing. Defendant ends up entering a plea at arraignment rather than taking a risk and the officer never gets called on making a bad search. The bad habits continues year after year.

Aspasia: So judicial efficiency isn’t always a good thing?

Officer Ness: It makes my job easier and saves the tax payers from hiring more judges, prosecutors, and public defenders. I guess it depends on the community, it’s definitely a messy issue. Most people are like the news channels, they only want to tell one story at a time.

Aspasia: I’ll pray for your friend’s family.

Officer Ness: Thanks.

 

Dialogue of Aspasia

An Honest Conversation Between an Officer and Citizen

by Joshua Brownlee

 

 

 

 

Aspasia: What’s going on?

Officer Ness: Please stand back ma’am!

Aspasia: Why does that officer have his knee in that man’s back?

Officer Critias:  SHUT UP or you’ll be next!

Officer Ness: Critias worry about keeping him under control I’ll worry about the crowd. Miss we had a group of trespassers in the private community garden and they scattered when we showed up.

Aspasia: Is that man one of them?

Officer Ness: We’re not sure to be honest, that’s what we’re trying to find out.

Aspasia: Do you know his name?

Officer Ness: No.

Aspasia: Why is he on the ground?

Officer Ness: Officer Critias saw him running and told him to stop.

Aspasia: Did Officer Critias see him in the community garden?

Officer Ness: No but he didn’t listen?

Aspasia: Was he running when Officer Critias first saw him?

Officer Ness: I’m not sure.

Aspasia: The man has jogging pants on maybe he was getting exercise?

Officer Ness: Well hopefully we’ll find out one way or another.

Aspasia: I noticed your comrade has his knee in the man’s back and is pushing the man’s face into the dirt. Is that the best way to find out his identity?

Officer Critias: She may be one of them, bring her over here!

Officer Ness: She’s not one of them, they’re all black males. Get the cuffs on him and put him in the car.

Officer Critias: Turn around and get her she’s recording this! She’s going to put this on the internet and we’ll be hearing about this for weeks!

Officer Ness: Are you recording this?

Aspasia: Yes and I will resist if you try and make me stop.

Officer Ness: It’s your right to record this as long as you don’t interfere. When did you start recording?

Aspasia: I started when I walked up to you.

Officer Ness: May I ask for a copy of your recording? Here’s my card, your video may help clear up who was here. Would that be ok?

Aspasia: Sure, I don’t mind helping, but I want to know why that man is being treated so violently?

Officer Ness: Officer Critias is a new to the force. His first assignment was a bad neighborhood and it made him overly paranoid.

Aspasia: Was the neighborhood a black neighborhood.

Officer Ness: Yes it was.

Aspasisa: My father and brothers are black, it bothers me that they would automatically be treated with such violence.

Officer Ness: As long as they didn’t run, I think they would be treated fine.

Aspasia: My brother runs track and my Dad was in the military. They run a four mile route around town. They like to race on the straight parts of the road together.

Officer Ness: They should stop if ordered to do so.

Aspasia: My Dad served in artillery when he was in Vietnam, he’s half deaf. Even if he could hear, he’s too proud to just stop because someone like Officer Critias says too.

Officer Ness: Your father seems like a good man.

Aspasia: He’s the best and he taught his children not to tolerate racists.

Officer Ness: He’s right. What’s your name?

Aspasia: My name is Aspasia.

Officer Ness: Everyone calls me Ness or Officer Ness if you want to be formal.

Aspasia: Ness, people who are black don’t trust police. A lot of us are taught to run from you especially if we’re not doing anything wrong.

Officer Ness: I didn’t know that. I’m retiring next month so I’ll be honest with you.

Aspasia: I appreciate that.

Officer Ness: I’ve been on the force for 30 years and race is a part of police work. We have Black officers, Hispanic officers, and Asian officers. All of them will tell you privately that race is at play in police work.

Aspasia: It shouldn’t be. It seems like police pick on blacks more than whites for stupid little things.

Officer Ness: You’re right that race shouldn’t be a factor but it is. The communities we serve want us to keep the streets safe and they don’t want to know the realities we face every day. The supervisor that trained Officer Critias’ had his partner shot in the stomach at a routine traffic stop by a young black man and now has a colostomy bag for the rest of his life.

Aspasia: That’s sad. How often do officers get shot?

Officer Ness: In our city, every other year or so. Police officers are a small community and we’re very close. One shooting has a dramatic effect for every person that knows or trains with that officer.

Aspasia: Does officer safety trump my race’s constitutional rights and presumed innocence?

Officer Ness: The politically correct thing to say is no, but the actual answer is yes. Last year I collected 58 illegal guns, countless kilos of cocaine and heroin, 3 murder suspects, 9 armed robbery suspects, and about two dozen others for various petty theft crimes. Most of those didn’t come from warrants or informants, they came from traffic stops and gut instincts.

Aspasia: Were most of those suspects black?

Officer Ness: Yes.

Aspasia: Do white people commit crimes?

Officer Ness: Certainly, I have just worked in majority black neighborhoods for most of my career.

Aspasia: So with a neighborhood like this, do you and Officer Critias still look for black faces or do you learn to recognize white criminal suspects?

Officer Ness: I sincerely try to adapt to each little community I serve.

Aspasia: I believe you do. What about him?

Officer Ness: I don’t agree with Officer Critias’ methods, quite frankly he’s kind of an asshole. At the end of the day though I don’t trust anyone else on this street with my life. Before I leave, I hope to guide him to a less authoritative approach.

Aspasia: But I’m a law abiding citizen, why are you afraid of me?

Officer Ness: I’m hope you are, but I don’t know if I can trust you.

Aspasia: That’s not ok.

Officer Ness: No, it’s not, but I’m sad to say that’s the way it is.

Aspasia: What will you do with the man in the back of the police car?

Officer Ness: Dispatch just came back that he has a bench warrant from State Court.

Aspasia: That court is for misdemeanors like traffic tickets?

Officer Ness: Correct.

Aspasia: So isn’t that why he ran, because he couldn’t pay for a ticket?

Officer Ness: Possibly. I have a duty to enforce the warrants though. If you have a problem with your courts blame your elected judges, mayors, and politicians. People always blame us, but I can’t turn a blind eye to an active warrant. If this had been your father or brother I probably would’ve let them go.

Aspasia: I don’t think you would have.

Officer Ness: Why?

Aspasia: My father didn’t surrender at Khe-Sanh, he won’t surrender to you. That makes me scared for him.

Officer Ness: Keep my card, call me if you ever need anything.

Aspasia: I’ll send you my video tomorrow.

 

Dialogue of Aspasia

By Joshua Brownlee

Visit us at: andresbrownlee.com

For the last few decades there has been a growing cultural phenomenon among jurors regarding forensic evidence. Reasonable and intelligent people confuse what’s on TV with what is physically in front of them. Unfortunately these assumptions have dramatic consequences every day in court rooms across the country. The phenomenon comes from the endless barrage of criminal investigation series on television. Shows like C.S.I., N.C.I.S., Criminal Minds, Law and Order, Bones, and Dexter all revolve around clever investigators who are able to catch horrible criminals by using almost magical scientific abilities. The phenomenon also called the “C.S.I. effect” is the belief that all the hocus pocus in daytime TV actually exists and is readily accessible to modern law enforcement agencies. At its core, the “C.S.I. effect” comes from everyday citizens blindly believing that accurate scientific methods exist to identify everything from ballistics (firearms and bullets), hair, fingerprints, blood spatter, breath tests, field sobriety tests, and even DNA evidence without knowing how these disciplines actually come to their conclusions. The “C.S.I. effect” is nurtured by real world forensic analysts and law enforcement with over confidence and biased data.

Let’s take fingerprint identification as an example. It’s assumed by the public that finger prints are unique to an individual and that a match is conclusive evidence of placing someone at a crime scene. In actuality, there is a great deal of disagreement on how many points of similarity should be observed before a match is declared. There is also disagreement as to whether fingerprints are unique, but let’s take that assumption at face value. In fingerprint identification matches are made by finding similar points (the little squiggly curves and lines in your finger print) in a print taken from a crime scene with an already existing sample from a suspect. The first issue, how many points of similarity do we need? Do we need 5, 9, 14, or 21 points of similarity to get a clear match? Forensic scientists can’t seem to agree. The logical question is then: why don’t they just check 30 points to be sure? Unlike TV, most forensic labs have only a few people qualified to test samples. Most forensic labs also have large jurisdictions sometimes covering an entire state or region. Agencies are handling large numbers of samples with limited staff. Given that reality, it’s easy to see why law enforcement and forensic labs would be content to have a reduced number of points to make an identification. When called into trial, analysts testify they have so many hours of training or went to some institute of forensic science. They’ll discuss the procedures of their lab and how it’s double checked with other forensic scientists. The word science is thrown in as much as possible. In truth most forensic disciplines are not peer reviewed by outside groups and more importantly, neither is the data they rely on. Studies that back forensic research are often paid for and conducted by law enforcement agencies or labs that have a clear law enforcement bias. When cornered on inconsistencies the response is usually “well it’s an applied science and experts get better with more experience”. That kind of phrase is a red flag. Scientific results shouldn’t depend on subjective experiences. Once a method is known, a student and teacher should have the same statistical results using the same method. It’s not to say that there is no place for forensic studies. It is fair to say that forensics is more of an art than a science. So analysts who testify in court about fingerprints are making educated guesses that two pictures have similar points.

Another problem with fingerprints is the lack of data on how frequent certain characteristics are in a given population. For example, human beings look different. To find an individual we need to identify certain traits that identify that person from the rest of the species. So let’s take 7 individual factors to make an identification. The factors are: height, hair color, eye color, skin color, foot size, number of teeth, and number of fingers on each hand. There are some variances in these points of identification but many are so common they are not reliable for blind match. It may help an investigation, but does it really close the case to know a 5’9, brown haired, blue eyed, white person with 32 teeth, 10 fingers, and size 10 shoe may have been at the scene? Notice the sex of the suspect wasn’t even identified. This is called frequency testing. Much of the controversy revolving around forensic analysts is due to a lack of frequency testing.

Even for respected peer review sciences like genetic identification with DNA evidence, where frequency testing is supposed to be part of the process there are still problems. Ideally analysts can run allele frequency testing to see how common a particular allele is in a population. But the analyst will only check frequency if it’s requested. Law enforcement agencies will often not request DNA frequency testing because they assume (as do many jurors) that a match of alleles is a solid DNA identification. When law enforcement forget to ask for frequency testing we end up with DNA alleles matching but without an indication of whether an allele has a 99.99% chance of being unique to the individual or if the allele identified is extremely common and could match any sample from any person in the court room.

So why don’t defense attorneys just say all this to the jurors? They do, but one of the most difficult things to overcome when discussing these issues is the blind trust and romantic fascination people have for the Federal and State agencies that analyze samples. Jurors see the expert and think of Ducky from N.C.I.S., Dexter, or that lady from Bones. Now the defense attorney has the difficult job of telling 12 people that’s just a fictional story. The result, silent broken hearts in the jury box (for some people this is like being told about Santa Claus and the Easter Bunny), and the defendant is often blamed. It makes sense. What if Dexter or Ducky from N.C.I.S. were just using junk science to determine a fact? The good guys go from being educated investigators to mystic gamblers fighting crime. The certainty of being right is gone. Dexter isn’t as romantic if he’s torturing innocent people based on a hunch. To be fair, most forensic analysts are trying to do their part in a criminal investigation and generally have good intentions. That being said, good intentions don’t equate to reliable results or remove subjective inaccuracies.  The Washington Post recently ran a story about F.B.I. analysts exaggerating testimony about hair identification. The story stated “Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.”

We may be tempted to think law enforcement still got the right guy because of other evidence, but already 4 cases have been exonerated. This means there is uncertainty, one may even say reasonable doubt in these identifications. The Washington Post also states “cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.” Hopefully there was other evidence to convict, but now a society that values justice and fairness must spend millions of dollars reinvestigating hundreds of cases across the country. Those resources don’t come out of thin air. Scandals like the F.B.I. hair analyst story are uncovered every few years and yet society still clings to the magic of forensic science. We can make reasonable fixes that both support law enforcement and protect defendants from voodoo methods of identification:

  • If an area claims to be science, open all the data to the public and let it be peer reviewed by the scientific community as a whole.
  • Teach scientists who are not obligated to law enforcement these techniques and see if their conclusions are statistically reliable.
  • Hire scientists (people that understand statistics, biology, and chemistry) not analysts to conduct these tests (some forensic specialists have only a high school diploma). When a Defendant is evaluated for competency to stand trial in a criminal hearing a Doctor does the evaluation. Imagine if we let a high school graduate with a few classes in psychology determine a competency evaluation?
  • Finally, if the government and law enforcement agencies want to use these methods let’s stop over working and under paying staff poorly trained analysts. Instead, let’s use some of that forfeiture money to properly hire the right number of people who have biology, chemistry, and statistical backgrounds to conduct these scientific tests.

Everyday forensic evidence is being used to convict people in the criminal justice system from in cases ranging from D.U.I. and drugs to rape and murder. Let’s do it right the first time so society doesn’t have to say “sorry, we destroyed your life, we weren’t as sure as we thought.”

Joshua Brownlee

Visit us at http://civilrightsga.com/