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Posts Tagged ‘government’

Baltimore Prosecutor Strikes Out on Criminal Charges for Arrest Without Probable Cause

Posted on: August 12th, 2016

By:  Wes Jackson

Recent high-profile deaths of unarmed black men at the hands of police officers have been met with a clarion call for police reform on multiple fronts. Proposals range from requiring officers to wear body cameras to mandates that individual officers carry professional liability insurance. In this spirit, Baltimore City State’s Attorney Marilyn Mosby responded to the death of Freddie Gray by charging the six officers involved in his arrest with criminal assault and false arrest, in addition to the murder and manslaughter charges she brought against three of the officers. Mosby’s theory for the assault and false arrest charges was that, without probable cause to arrest Gray, the officers not only violated Gray’s civil rights but engaged in criminal conduct as well.

Criminal prosecution of officers who intentionally engage in lawless conduct is nothing new. However, many observers noted that Mosby’s attempt to criminalize arrests without probable cause would significantly lower the bar for what constitutes criminal conduct while policing. As one former Baltimore prosecutor wrote when the charges were first filed, Mosby’s novel prosecution would create the expectation “that police officers who arrest without what she considers to be probable cause (a subjective standard) are subject not just to civil action (the current norm) but criminal action. Mere mistakes, or judgments exercised under duress, can land them in the pokey.”

Indeed, when an officer arrests someone without probable cause, the usual recourse for the arrestee is to seek civil damages from the officer for violating his constitutional rights. The officer, as defendant in this civil case, may be entitled to “qualified immunity” if he can show that he did in fact have probable cause to arrest the plaintiff or, absent actual probable cause, that he at least reasonably—albeit mistakenly—believed there was probable cause for arrest based on the circumstances. Under this framework, an officer’s “mere mistake” or “judgment exercised under duress” will not subject him to civil liability so long as that mistake was reasonable. At most, an unreasonable mistake would only subject the officer to civil liability.

Criminal liability for questionable arrests is perhaps the most severe proposal for heightened police scrutiny on the table. As counsel for one of the officer’s charged for Gray’s arrest stated, “[c]ommon sense dictates that officers would simply not make arrests if they were subject to criminal prosecution if it was later determined that probable cause did not exist.” The theory that increased scrutiny has led or will lead to less active policing, known as the “Ferguson Effect,” is hotly debated. Suffice it to say, the prospect of criminal charges for arrests without probable cause will almost certainly give officers pause before arresting suspects—for better or worse.

Mosby’s novel prosecution of the officers involved in Gray’s arrest, however, was a bust: after one mistrial before a jury and two acquittals before a judge, Ms. Mosby dropped all charges against the remaining officers on July 27, 2016. Criminal prosecutions for arrests without probable cause, then, did not gain much traction in the Freddie Gray cases. That being said, the possibility of criminal prosecutions for arrests without probable cause has been broached, and it remains to be seen how the specter of criminal charges will affect police practices.

Police Body Cams – Look Before You Leap!

Posted on: June 10th, 2016

By:  Sun Choy

Many in the media and the public believe that law enforcement agencies should be rushing to equip every officer with a body cam.  While the focus is on the many benefits of body cams, there is little discussion about the many limitations and unanswered questions raised by the use of body cams.  In this article from The Police Chief, the author concisely addresses the many challenges associated with body cams.  These issues range from the practical – how do you ensure officers turn on the cam at the right time – to the potential for civil liability – do officers have a right to record inside private homes or other areas where there is a reasonable expectation of privacy.   The very valid point of the article is that agencies must thoughtfully address these challenges before rushing to deploy body cams.

Police Officer’s Mistake of Law Does Not Make an Arrest and Search Invalid

Posted on: December 16th, 2014

By: Wayne Melnick

Earlier this week, the United States Supreme Court ruled that a police officer’s mistaken belief of the state of the law does not make an arrest and search invalid as long as the officer’s belief was reasonable.  In Heien v. North Carolina, Case No. 13-604, an 8-1 majority affirmed the ruling of the North Carolina Supreme Court and held that even assuming no violation of the law took place, as long as the officer’s “mistaken understanding of the law was reasonable” a stop made was valid and anything that flowed from the stop was, therefore, not suppressible.

In Heien, a police officer pulled a vehicle over for having only one operating tail light, believing that North Carolina law required both tail lights to be operational.  During the stop, the officer obtained and received permission to search the vehicle and found cocaine during the search.  It turns out, that North Carolina law required only “a stop lamp” or “the stop lamp” and based on that language, Chief Justice Roberts concluded that the officer was mistaken in believing that he had reasonable suspicion to believe the driver had committed any crime.  However, Chief Justice Roberts also stated that this “mistake of law,” as long as it was “reasonable” (as it was in this case), did not invalidate the stop; and therefore the subsequent search and arrest were deemed appropriate.

The ramification of this in the civil rights arena quickly comes into question. Now, when a citizen claims that his Fourth Amendment rights have been violated for an illegal seizure if the stop is based on the officer’s incorrect, but reasonable belief that the suspect was violating the law (when in fact, no law was broken), will the officer have the defense that as long as the officer’s belief that a crime was being committed was reasonable that it provides him qualified immunity to any potential section 1983 claim?  No doubt, this will provide a soon-to-be developed front in the ever-changing world of Fourth Amendment civil rights cases.

October is Cybersecurity Awareness Month

Posted on: October 15th, 2012

By: Dave Cole

You may already know that October is National Breast Cancer Awareness Month, but did you know that it also is National Cybersecurity Awareness Month?  In his proclamation of this as Cybersecurity Awareness Month, President Obama explained that, although our country benefits immensely from the Internet, increased connectivity brings increased risk of theft, fraud, and abuse.  This is true for businesses and consumers alike.

To help educate people about cyber threats, the Department of Homeland Security is leading the Stop.Think.Connect. campaign.  Stop.Think.Connect. is a national campaign to help people understand cyber threats and how to protect their online privacy.  There also are resources designed specifically for government and businesses, such as the “Small Business Tip Card,” which gives statistics on cyber threats affecting small businesses (did you know 40 percent of all cyber-attacks target businesses with fewer than 500 employees?) and helpful tips for preventing cyber-attacks and resources if your organization is attacked.

Cybersecurity Awareness Month is a good opportunity for organizations to review their cybersecurity framework.  If you have questions or need help improving your program or policies, please contact one of our attorneys.

Ban on Guns in Church Upheld

Posted on: August 13th, 2012

By: Sun Choy

In v. Georgia, the Eleventh Circuit upheld Georgia’s 2010 ban on guns in places of worship. The Baptist Tabernacle of Thomaston and, a gun rights group, claimed that the ban violated their constitutionally protected religious freedoms and their right to bear arms. In rejecting plaintiffs’ argument that guns were necessary to protect the congregation, the court noted:

At various points, Plaintiffs allege that they would like to carry a handgun in a place of worship for the protection either of themselves, their family, their flock, or other members of the Tabernacle. Plaintiffs conclude by alleging that the Carry Law interferes with their free exercise of religion by prohibiting them from engaging in activities in a place of worship when those activities are generally permitted throughout the State. That Plaintiffs “would like” to carry a firearm in order to be able to act in “self-defense” is a personal preference, motivated by a secular purpose…

Given the passionate views of plaintiffs, I would not be surprised if they are considering an appeal to the Supreme Court of the United States.