Excessive Force By Police

In light of the recent events in Ferguson, Missouri where an unarmed 18 year old man was gunned down by police, it is important that we stop and remember that there are ways to combat excessive force by police. When race is involved, it is obviously a polarizing issue. Media and news outlets from across the nation have weighed in on the Ferguson Police shooting. I was recently interviewed by our local ABC affiliate to discuss the potential ramifications of police brutality or excessive force.

Realistically, any time there is an officer involved shooting there is a potential of three different things happening: An internal investigation by the police department, a criminal investigation by the police department or an outside agency, and a civil lawsuit against the officer and/or the department.
Internal Investigation – This is an investigation done by the police department that employs the officer involved in the shooting. Typically the officer is placed on paid administrative leave while the investigation is conducted. The point of this investigation is to determine what disciplinary action, if any, the officer should face for the shooting. The most severe thing that can happen here is that the officer can lose his or her job. However, the department could also determine that the officer’s actions were justified, leading to no discipline whatsoever.
Criminal Investigation – There is the possibility that either the department that employs the officer involved in the shooting or an outside agency could conduct a criminal investigation to determine if criminal charges should be sent to the prosecuting attorney against the officer involved in the shooting. In my opinion, it is a terrible idea, not to mention a deep conflict of interest, for the police agency that employs the officer to conduct the criminal investigation. It is much safer and reduces the appearance of impropriety if an outside agency conducts any criminal investigation. Much like in the Ferguson shooting case, rather than the Ferguson Police Department investigating the case, the FBI has stepped in to investigate. Once the investigation is complete, the case file will likely be turned over the the prosecuting attorney to determine if there is any criminal liability on the part of the officer. If it is decided that there are grounds for charges, which would include a criminal mental state by the officer, it is up to the prosecutor on what charges to file. Those can range from misdemeanor assault all the way up to various degrees of murder. Oftentimes, however, the shooting will be determined justified and no criminal charges are filed. If criminal charges are filed, the burden is on the prosecutor to be able to prove them beyond a reasonable doubt at trial.
Civil Rights Lawsuit – The last possible outcome of a police involved shooting is for the victim or victim’s family to file a civil rights lawsuit alleging that the police officer violated the victim’s civil rights. There is a provision of the United States Code, 42 U.S.C. Section 1983, which allows for such a lawsuit. The lawsuit will usually name the officer involved in the shooting, as well as the police department that employs he or she. Any time a police officer touches a civilian, even if it is with an object, or even a bullet in the most severe instances, legally speaking a seizure has occurred. As the Fourth Amendment to the U.S. Constitution states, all citizens are presumed free from unlawful searches and seizures. Therefore, when it is alleged that the Fourth Amendment has been violated, a 1983 action can be filed. It is then up to the officer or the department to justify the actions of the officer and to demonstrate that the actions were lawful. As has been reported, the family in the Ferguson, Missouri case has hired the same attorney from Florida who Trayvon Martin’s family has hired. It is anticipated that a civil case against Ferguson PD and the officer is imminent. Once a civil 1983 action has been filed, it is up to the victim or his family to prove the allegation by a preponderance of the evidence to the jury, which basically means that the force used by the officer was more likely than not excessive under the circumstances.

Although these types of cases are polarizing and can sometimes grip a nation, it is best to let the various legal processes play out. It is not time to jump to conclusions either way, rather, it is time to let the investigators investigate and to simply observe as the legal chess match subsequently ensues. It is no doubt going to be a long process, and surely emotions that lead to criminal behavior such as rioting, burglary, and damaging people’s property cannot run this high for long.

DWI Field Sobriety Testing: Post 2 of 3 Post Series – Walk and Turn Test

Back on July 7 I began a 3 post blog series regarding Standard Field Sobriety Testing in DWI cases. In Post 1 I discussed in detail the Horizontal Gaze Nystagmus Test, better known as “the eye test”. Today, I hope to provide details and information regarding the field sobriety test that should be administered by law enforcement directly following the HGN, the Walk and Turn Test, also known as the Heel to Toe Test. As indicated in Post 1, other than blood alcohol content evidence, the Field Sobriety Tests are what prosecutors, judges, and juries rely on in determining the guilt or innocence of those accused of driving while intoxicated. The Walk and Turn Test (WAT) is the first opportunity the investigating officer has during the field sobriety tests to observe whether there is actual physical impairment of a person’s balance and walking. Of course, during the initial contact phase of the investigation the officer is already looking for possible signs of impairment, but the WAT is the first sobriety test designed to detect physical impairment.

On the WAT there are a possibility of eight indicators of impairment. Many people claim that they cannot complete this test whether sober or intoxicated. However, evidence shows that exhibiting two out of eight clues indicates a 79% probability of that subject having a BAC over the presumed legal limit of .08%. Like the HGN, however, the test is only as accurate as the person (i.e. law enforcement officer) administering the test and only as accurate as the instructions that are given. This is why it is critically important to have an attorney in these cases who understands and knows the field sobriety testing protocol so that they can determine whether the officers administered the test appropriately and, if not, can adequately cross-examine the officer and bring those inaccuracies to the Court or jury’s attention.

The WAT test is a divided attention test. What this means is that it combines a physical and a mental task at the same time. Like all divided attention tests there are two stages: on the WAT there is an instructions stage and a balance and counting stage. Both stages are important as they can both affect a subject’s overall performance, but the instruction phase is given by the officer administering the test. It is critically important that the instructions are given properly, otherwise, the results cannot and should not be relied upon by the judge or the jury. Also in order to be relied upon with any sense of accuracy, the test must be conducted on a surface that is dry, hard, level, and non-slippery. Other factors that may play a role in the accuracy of this test is if the subject is 65 years of age or older, or is greater than 50 pounds overweight. Although these factors may affect people differently, they are something to consider and should be brought to the Court or jury’s attention if present.

To have any accuracy whatsoever, the instruction phase outlined in the officers training manual must be completely adhered to. There are sixteen distinct points of instruction that must be given prior to the subject performing the WAT test. If any instructions are left out, the results of the test are greatly compromised. The officer’s are taught to give the instructions from a safe distance from the subject. Then, the following instructions must be given:
1) Tell the suspect to place their left foot on a line (which can be an imaginary line, although an existing line such as a parking lot line is preferred) with the right foot in front, heel touching toe, keeping the arms at their sides. Demonstrate as they do it.
2) Tell the suspect not to begin the test until instructed to do so. Ask suspect if he or she understands.
3) Tell the suspect that he or she will be expected to take nine heel-to-toe steps down the line, make a turn in a prescribed manner, and return nine heel-to-toe steps back to the starting position. Tell the suspect that you will demonstrate.
4) Explain and demonstrate using three heel-to-toe steps.
5) Explain and demonstrate the turn procedure.
6) Explain and demonstrate three heel-to-toe steps for return.
7) Ask the suspect if he or she understands.
8) Tell the suspect to watch his or her feet at all times.
9) Tell suspect that he or she is to count each step out loud (so that you can hear him or her).
10) Tell suspect that he or she is to keep his or her arms at their sides at all times during the test.
11) Tell the suspect that he or she is not to stop the test once it has begun.
12) Instruct the suspect that if he or she steps off the line, to place their foot back on the line and continue walking in the heel-to-to fashion until the test is complete.
13) Ask the suspect if he or she understands the instructions for the test.
14) Ask the suspect if he or she feels they cannot perform the test as explained.
15) Tell the suspect that the first step from where he or she is currently standing is step one.
16) As the suspect if he or she has any physical disabilities that would not enable them to complete the test.
17) Tell the suspect to begin the test.

Once again, if any of these instructions are left out of the first phase by the officer, that particular instruction cannot be used as a clue, and the validity of the entire test can be called into question. During the test, the eight possible indicators of impairment that may be present are each included in the instructions. Although there are a total of 18 steps and a turn on the test, if an indicator of impairment occurs only one time it is considered a clue. That is what makes the walk and turn test such a difficult test for many people. There are numerous ways to exhibit an indicator of impairment and it seems even non-impaired people could show one or more of the indicators.

With the officer’s report that is presented to the prosecuting attorney after a DWI arrest is made is a separate report called the “alcohol influence report”. On the AIR there is a diagram of the WAT test, as well as nine separate boxes that can be check for each indicator. During the WAT, the investigating officer is looking for the following:
1) Fails to maintain heel-to-toe stance (this is during the instructions when the person has to keep right foot in front of their left foot while the instructions are given).
2) Starts before instructed to begin.
3) Stops while walking to steady self.
4) Does not touch heel-to-toe (misses by more than 1/2 inch).
5) Loses balance while walking (steps off line).
6) Uses arms for balance (raises arms more than 6 inches from side).
7) Loses balance while turning or made an improper turn.
8) Incorrect number of steps.
9) Cannot perform or refused to do the test.

If two or more of the above indicators are present the subject is considered to have failed the test and officers will testify on the witness stand that the failure of that test indicates a possibility that the subject was impaired. The prosecutor will then try to couple that failure with other indicators to prove their case beyond a reasonable doubt to the judge or jury. As with the HGN test, if the WAT is not recorded on an audio/video camera, it will be difficult to uncover whether an officer administered the test correctly by giving the correct instructions. However, it may be difficult for an officer to regurgitate every single instruction while on the witness stand as well. That is again why it takes a criminal defense attorney who is knowledgeable in field sobriety testing to effectively cross-examine highly trained and experienced police officers.

Within the next few weeks I plan to do the final post in the series, which will cover the One-Leg Stand. I certainly hope that my posts have been insightful and informative up to this point. My goal is not to try to thwart DWI investigations or to encourage drinking and driving at all. I am simply hoping to make you more aware of these tests should you find yourself being put through roadside testing. Perhaps then, the public will be on a level playing field with police if being investigated. Feel free to contact my office if any questions arise or if anything is unclear.