Police Better Off Accidentally Shooting Black People Than Family Dogs

Police Better Off Accidentally Shooting Black People Than Family Dogs:

You'll get in less trouble if you accidently shoot the one on the right.

I’m about to tell you a story. If the story included Chicago PD shooting an innocent black man who posed no threat to them, the story would end in an acquittal, vindication for the officers, and an outraged black community starting a charity fund for his widow.

But this story involves CPD shoot an innocent black Labrador Retriever. A family pet who posed no real threat to the officers. As such, the police have been punished and roundly excoriated, and a federal jury awarded the family a huge sum for damages.

Which is fine. I mean, I agree with the jury’s decision. I just don’t like living in a world where shooting my dog is a bigger liability risk for a police officer than shooting me….

The Chicago Tribune has the story (gavel bang: Huffington Post):

Teenage brothers Thomas and Darren Russell were in their second-floor apartment in the 9200 block of South Justine Street in February 2009 when officers announced they had a warrant to search both units of the two-flat. Thomas Russell, then 18, opened the door and found officers with their guns drawn, according to the lawsuit. Russell said that he put his hands in the air and asked permission to lock up his 9-year-old black Labrador, Lady, before they entered.

Police refused the request and came into the house, the lawsuit said. When Lady came loping around the corner with her tail wagging, Officer Richard Antonsen shot the dog, according to the suit, which alleged excessive force, false arrest and illegal seizure for taking the dog’s life.

A jury awarded the family $333,000 for their loss.

How does this play out if instead the story is: “When LeBrandon, a 5’10” dark-skinned black man wearing a wife-beater, came loping around the corner running his mouth, Officer I Am The Law put him down with two shots to the chest.”

Because the police say the same thing about innocent black people they shoot as they did in this case about the black lab:

Jennifer Hoyle, a spokeswoman for the city’s Law Department, said: “The officers involved in this case were executing a valid search warrant when this incident occurred and were simply protecting themselves. We are extremely disappointed and reviewing all of our options. In particular, we think the damages awarded to the plaintiffs were excessive.”

The difference is that nobody believes that the police need to respond with deadly force to protect themselves from random dogs, but lots of people think the police need to respond with deadly force to protect themselves from random unarmed black men. It’s BS.

But it is what it is. Do not mess with dogs. Our society loves dogs. Keep your guns pointed in the direction of less sympathetic targets.

Family gets $333,000 for 2009 raid in which cops killed dog [Chicago Tribune]
Police Kill Chicago Man’s Dog During Raid, Jury Awards Family $330,000 [Huffington Post]

Search Warrants For Future Criminal Activity

Yes, you understood that correctly. Cops can get a warrant to search, for example, your home for criminal activity that hasn't yet occurred. This insidious device is known as an "anticipatory search warrant."
Begin with the foundation: The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no Warrants shall issue, but upon probable cause." This language is clear.
An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. In U.S. v. Grubbs, decided in March 2006, defines an anticipatory search warrant “a warrant based upon an affidavit showing probable cause that at some future time, but not presently, certain evidence of crime will be located at a specific place.” The Supreme Court had no problem with using anticipatory search warrants.
With a typical search warrant, officers requesting the search must establish probable cause that what they want to look for is presently in the place they want to look for it. If the government wants to get into your house, it needs to show probable cause the drugs are in the house. It doesn't have to be certain the drugs are there, but it must at least make a showing that they reasonably believe the illegal substance is there. In contrast, an anticipatory warrant doesn’t claim the evidence is in a particular place at the time the warrant is requested. Instead, that kind of a warrant anticipates a certain event will occur and if that event happens, then there is going to be probable cause.
Using U.S. v. Grubbs as an example, Mr. Grubbs ordered a child pornographic video tape from an internet site. Unfortunately for Mr. Grubbs, the site was being operated by the U.S. Postal Service. Agents intended to deliver the tape Mr. Grubbs ordered, but that delivery had not yet been made. The agents wanted to search Grubbs’ house after delivery of the tape to prove that he was in possession of it. The government wanted to get the warrant before the delivery so once the delivery was made, the agents could immediately conduct a search for the tape inside the house. In that affidavit they told the magistrate what they knew and they requested to execute a warrant to search for the tape if a triggering event occurred. The exact language that was in the warrant: “Execution of this search warrant will not occur unless and until the parcel has been received by a person and has been physically taken into the residence. At that time, and not before, this search warrant will be executed.” Delivery of the parcel and acceptance of the parcel was the triggering event. If the triggering event doesn’t occur,the warrant can’t be executed.
What's to stop the government from fabricating an event, placing any person in possession of an illegal item or substance, then executing upon a warrant for the mere purpose of getting into your house?

Sealing An Arrest Record

There are many reasons you would want to expunge your arrest record. Expungements are available ONLY to those people who have not been convicted of the charged crime. If you have been convicted, you cannot seal your record. Most people want to seal their record because the arrest, or arrests, are getting in the way of a good job. Some are embarrassed about an arrest that can be easily found on the internet. Others simply want to get rid of a charge that never should have happened in the first place.
Expunging an arrest record begins when you make your first appearance in court for the charge. You cannot plead guilty or you will not be eligible for an expungement. If you plead no contest, or nolo contendre, you will not be eligible.
Two special circumstances exist with misdemeanor crimes of domestic violence and with marijuana possession. Even though you may ultimately have the charges dismissed, most courts require you to plead guilty or no contest. This makes you ineligible for an expungement.

Restoration of Firearms Rights

Upon conviction of a felony, any felony, violent felony or not, you no longer have the right to possess a gun. You may be arrested if you attempt to purchase a gun after you have been convicted of a felony. If you are found in possession of a gun, you face an additional felony charge. This prohibition applies not only to guns, but to ammunition for any firearm.
This rule applies to any person who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of murder in violation of § 18.2-31 or 18.2-32, kidnapping in violation of § 18.2-47, robbery by the threat or presentation of firearms in violation of § 18.2-58, or rape in violation of § 18.2-61.
Any person under the age of 29, who was adjudicated delinquent as a juvenile 14 years of age or older, of a felony other than those specific felonies mentioned above, cannot possess or transport any firearm or ammunition for a firearm.
Any person who violates this section shall be guilty of a Class 6 felony, punishable by up to five years in prison.
Repeat offenders will face a harsher sentence with a mandatory minimum term of imprisonment.

Exceptions to this rule include possession of a firearm, ammunition for a firearm, explosive material or other weapon while carrying out his duties as a member of the Armed Forces of the United States or of the National Guard of Virginia or of any other state, any law-enforcement officer in the performance of his duties (a convicted felon as a law enforcement officer?), or any person who has been pardoned or whose political disabilities have been removed pursuant to Article V, Section 12 of the Constitution of Virginia provided the Governor, in the document granting the pardon or removing the person's political disabilities, may expressly place conditions upon the reinstatement of the person's right to ship, transport, possess or receive firearms.

How do you get your right to possess, transport or carry a firearm back? A petition filed in the circuit court of the jurisdiction in which you reside. Before you petition the court of an order allowing possession of a gun, you must first have your civil rights restored by the Governor.

Information to have your civil rights restored can be found at the site maintained by the Secretary of the Commonwealth. http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/restoration.cfm

Is the DOJ Too Easy on Prosecutors That Mess Up?

Is the DOJ Too Easy on Prosecutors That Mess Up?: "The USA Today on Friday continues its series, called Justice in the Balance, about federal prosecutors behaving badly.

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Drug Forfeitures

Forfeiture is the government seizure of property connected to illegal activity. Forfeitures are utilized by the federal and state law enforcement in the ongoing "war on drugs."
Law enforcement has asserted that it is a necessary and effective deterrent to drug crime, while opponents argue that existing procedural safeguards result in too many innocent parties having their property taken away, with little or no recourse for recovery. If your property or assets have been the subject of a criminal or civil forfeiture, it is important to consult with legal counsel to understand your rights and options.

Property Subject to Forfeiture
Government authority to seize property connected to illegal activity comes from federal statutes, as limited by those laws and the Constitution. Authorizing provisions of state and local statutes tend to be similar to federal law. The United States Supreme Court, in Bennis v. Michigan identified certain categories of property subject to forfeiture:

Contraband - property for which ownership itself is a crime (e.g. illegal drugs, smuggled goods)

Proceeds from illegal activity - property that results from, or can be traced back to, illegal activity

Tools or instrumentalities used in commission of crime - property used to commit a crime (e.g. cars, boats, real estate)

Two Forms of Forfeiture: Criminal and Civil
Criminal forfeiture is punitive. The government seizes a convicted person's property as a part of the sentence. Because it is a criminal proceeding, a defendant is afforded various Constitutional protections. The government only needs to show by a preponderance of the evidence that the defendant obtained the property around the time of the crime and that it was unlikely it came from any other source. The burden then shifts to the defendant to prove this is not the case.
By contrast, civil forfeiture actions proceed against the property itself, which is the defendant in the case rather than the owner. A criminal charge or conviction is not necessary before the government can seize.

Forfeiture proceeds fund law enforcement activity. Because of law enforcement's strong financial incentive to use civil instead of criminal forfeiture, critics claim that the practice has moved from being a means to fighting drug-related crime, to being an end in itself.

If your property has been seized by the government, contact an attorney immediately. You have strict time constraints to respond to the suit to confiscate your property. Failing to respond to the suit can result in a default judgment being entered against you. You may be able to post a bond to get your car, boat, motorcycle, etc. from the government while the proceeding is pending. You may also be able to serve some discovery on the government to make them explain certain facts it intends to introduce at your forfeiture hearing.

Drug Possession and Going to College

Students who make the mistakes of underage drinking, drinking too much, or are found in possession of illegal drugs, such as marijuana, risk being expelled. It isn't necessary that charges are brought or that a student is convicted. It's enough for a dean of the school to decide that the student has misbehaved to invoke the right to expel.

If you are arrested, however, the costs of a mistake are high. Drug crimes put a student's federal student aid at risk.

Many times, a student arrested for possession of an illegal substance or underage possession can be resolved without a finding of guilt if the student qualifies for first offender status under Virginia law.

Presentence Report: What You Don't Know Might Hurt You

Presentence Report: What You Don't Know Might Hurt You: "An interesting article that came out this past Sunday in the Roanoke Times about a little known, yet widely practiced, part of federal sentencing: a written recommendation from United States Probation Officer that is given to the Judge in addition to the Presentence Report. Federal Rule of Criminal Procedure 32 requires a presentence report for offenses. The report includes a summary of the offense, a summary of the sentencing guidelines, and discusses all aspects of the offender's life including work history, substance abuse issues, mental and physical health problems, and includes calculations of possible sentencing outcomes. Much investigation and preparation goes into both getting information for the report as well as getting information to challenge legal inaccuracies, factual disputes, or other challenges to the report. Often times, issues identified in the presentence report are contested at the sentencing hearing in open court.

The Roanoke Times article report on the questions raised by the process, in addition to the presentence report, of the probation officer's 'recommendation' which can be a written recommendation or an off the record conversation that takes place between the Judge and the Probation Officer.

In Roanoke, after the sentencing hearing, the offender received a copy of the presentence report in the mail which included the mistakenly mailed confidential recommendation from the probation officer. The defense attorney and the offender both thought the report contained inaccuracies and painted an unfairly unflattering picture of the person. Here is an excerpt of the article (full article here):

No one who tracks how each of the nation's federal districts deals with the rule about sentencing recommendations, according to the national office of the federal defenders service and two longtime U.S. judges in Roanoke. Most districts keep the recommendations secret, between the judge and probation officer, said Karen Edmonds, a Washington-based spokeswoman for the administrative office of the U.S. Courts.

'There is no justification for a lack of transparency in this critical aspect of the adversary process,' University of Arizona law professor Marc Miller wrote in an e-mail response to questions.

Miller, editor emeritus of the academic journal Federal Sentencing Reporter, is among scholars and lawyers who for years have called for the U.S. Sentencing Commission and Congress to change the federal rule. Unless defense attorneys and prosecutors have a chance to challenge a probation officer's recommendation, a judge could impose a sentence based on wrong information, Miller said.

Paul Dull, a Roanoke defense lawyer not involved in Wooten's case, said basic fairness is at stake.

'We all have clients who for one reason or another' irritate a probation officer, said Dull, who has years of federal courtroom experience. 'And there's no way for us to know if the probation officer said to the judge, confidentially, 'Hey, this guy. ... He was uncooperative.' '

The suggestion of such a scenario set off a stir in Roanoke's federal justice system over the summer.

Cargill , a federal defender since the Western Virginia office opened in 2006, represented former restaurateur Wooten, who was sentenced in July to 33 months in prison. A month later, Wooten, who had already reviewed his pre-sentence report with Cargill, received a routine copy in the mail.

Also in the envelope was the probation officer's confidential sentencing recommendation, accidentally mailed from the probation office.

Wooten and Cargill thought the probation officer's recommendation painted Wooten in a worse light than he deserved.

On Aug. 11, Cargill fired off a letter to the head of the probation office, the U.S. attorney's office and the judicial district's chief judge. He called for a review of sentencing recommendations 'to be sure they do not contain facts that are not in the presentence report' and slammed the events that he said left his client unable to respond to inaccurate statements.

Such open criticism of court workings is unusual for lawyers.

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Facing a criminal trial, contractor settles claims

Facing a criminal trial, contractor settles claims: "

When a general contractor failed to pay subcontractors on a retail construction project, the Stafford County Commonwealth’s Attorney brought the contractor up on criminal fraud charges.

Facing an imminent jury trial, the contractor now has agreed to pay out a total of  $400,000 to resolve the case, according to The Free Lance-Star.

Contractors will get only about 40 cents on the dollar under the deal, but Commonwealth’s Attorney Ed Lustig told the paper there was no evidence of other available funds. “We consulted with most of the subcontractors,” he said. “Our feeling was this was the best deal we could get as far as giving them restitution as quickly as possible.”

-Posted by Peter Vieth

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Only One Thing Counts in This World: Get Them to Sign on the Line Which is Dotted

Only One Thing Counts in This World: Get Them to Sign on the Line Which is Dotted: "

The Supreme Court of Virginia dropped a pair of decisions on us last month that highlight the wisdom of Mr. Baldwin's* worldview--although, oddly enough, neither came up in the context of contracts. Read together, the holdings in Aguilera v. Christian and Shipe v. Hunter make it clear that when the Code or the Rules require a lawyer to sign a pleading, they mean that the lawyer has to physically sign the pleading.

In Aguilera, the Court held that a pro se litigant could not authorize a person who wasn't authorized to practice law in Virginia to sign a pleading on his behalf.

Aguilera asked his neighbor, who was licensed to practice in DC but not Virginia, to sign a complaint. It appears that he did so on the day before the two-year statute of limitations on his claim ran.

The trial court dismissed the case, and the Supreme Court affirmed. It held that Aguilera's complaint was a nullity because it was not signed by the party or a lawyer licensed to practice in Virginia.

Shipe is marginally more interesting. It addressed the related question of whether a lawyer who's licensed in Virginia may authorize a lawyer who is licensed elsewhere, but not in Virginia, to sign a pleading on the Virginia lawyer's behalf.

The answer, as you've surely guessed, is no. The trial court held that the complaint was a nullity, entered summary judgment in favor of the defendant, and dismissed the case with prejudice.

On appeal, the Supreme Court affirmed. It noted that Code Section 8.01-271.1 generally provides that every pleading, written motion, and other paper of a represented party shall be signed by at least one attorney of record in his individual name. Rule 1:4(c) similarly requires a lawyer to sign a pleading, and Rule 1A:4(2) provides that no out-of-state lawyer may appear pro hac vice except in association with a Virginia lawyer, and any pleading will be invalid unless local counsel signs it.

Relying on case law from other contexts, the plaintiff argued that a person may make another his agent for purposes of signing a pleading. The Court rejected that argument. It found that, to deter frivolous litigation the General Assembly had decided to hold lawyers and pro se litigants highly accountable for their pleadings via the sanction provisions of Code Section 8.01-271.1.

It explained:

Because of the strong public policy considerations underlying those statutory provisions and rules, we construe them to require that a lawyer who files a pleading in a Virginia tribunal  must append his personal, handwritten signature to the pleading.

(Emphasis added.) The Court also observed that Rule 1:5 implies that a member of a law firm signing a pleading must do so in handwriting, by providing that signatures to briefs and petitions for rehearing--and only those papers--may be printed or typed and "need not be in handwriting."

Thoughts about Aguilera and Shipe:

• When the Code or Rules require a signature, unless they specify otherwise, they apparently require an old-fashioned, personal pen-and-ink signature. The Court has repeatedly held that a pleading signed in a representative capacity by someone who isn't a Virginia lawyer is a nullity. And yet, even after these two recent decisions came down, I've seen at least question from a lawyer on exactly this point. The signature requirement is a bright-line rule.


• That said, it is kind of a harsh bright-line rule. You almost get the sense from the policy discussion in Shipe that the Court wished it had a little leeway, but felt constrained by the statute (and, err, its own rules).


• What are the implications for appellate lawyers? Appellate briefs are printed. Sure, Rule 1:5 allows signatures on briefs and petitions for rehearing to be typed or printed--but what about petitions for appeal? Emmert suggests that a lawyer's scanned signature attached to a pleading will be sufficient, as long as it's his signature. I think he's right--frankly, we've gone bananas if he's he's wrong--but I also suspect that it's only a matter of time before a crafty lawyer in a tall-building firm challenges a brief from a commercial printer on this ground.

 *Totally off-topic, but hilarious observation: Alec Baldwin's IMDB bio describes him as "Raven haired, suavely handsome and prolific New York-born actor Alec Baldwin."

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