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More than ever, the public is demanding restraint and civilityfrom the men and women who take an oath to protect and serve us.

In the past week, as Black Lives Matter protests continuedin southeastern Connecticut and nationwidefollowing the death of George Floyd, The Day filed Freedom of Information requestswith nine area departments for civilian complaints and use-of-force reports for the past two years.

The region's police departmentsvary in size and structure, and thecommunitiesthey serve range from rural to urban. Some of the departments have civilian review boards or police commissions. Shootings and other deadly use of force are rare and are investigated by outside agencies and prosecutors.

As of Friday afternoon,New London and Norwich police, both city departments under close scrutiny by the NAACP, provided preliminary information. Groton Town and Groton City police, who said they were preparing for a Black Lives Matter protest Sunday, provided partial responses.

Three of the smaller, suburban police departments East Lyme, Ledyard and Stonington complied withThe Day's requests.

Montville police,a municipalforce overseen by the state police, said it would work on providing the information.The Day has not yet requested information of Old Lyme, a small police force also overseen by state police.

Waterford policesaid therequest has been sent to the town attorney for review and the department wasgathering the information necessary to comply.

Officers are required to file reports on use of force every time an officer uses their hands or a weapon tocontrola suspect. The reports are submitted annually to the state.

The civilian complaint process is available to those who want to report misconduct of officers. Departments are required tomake complaint forms easily available to the public,thoroughly investigatethemand communicate the findings of complaints. If unsatisfied, the person can sue.

New London

City policehave been accused of "institutional racism" byattorney Jacques Parenteau, who is representingSgt. Cornelius Rodgers, an AfricanAmerican, in a legal action claiming Rodgers wasunjustly suspended for 20 days afterpunching a handcuffed prisoner in April 2019 in the booking area of the Waterford Police Department. An internal investigation by the New London Police Department into the matter determined Rodgers' use of force was unjustified given the circumstances.

Rodgers, who says he punched the man in defense of himself and another officer, because he thoughtthe manhad a knife, claims he was investigated more intensively and punished more harshly than white officers, including union President Todd Lynch, a white man who was recently cleared in a use-of-force investigation conducted by the union's vice president, Officer Charles Flynn,after striking a prisoner twice in the face.

The city has hired an outside investigator to look into Rodgers' claims, and Parenteau said Rodgers intends to file a lawsuit after the case is reviewed by the state Commission on Human Rights and Opportunities.

On Friday, Parenteau wrote to Mayor Michael Passero alleging Lynch attempted to bypass Rodgers for approval of an arrest report just this past week, taking it instead to a white sergeant.

"If the New London Police Department is unable to police itself on the issue of race, how will it ever be able to be a police force that can effectively deal with race relations in the community?" said the letter, copied to NAACP officials.

Since 2018, the New London Police Department has taken approximately 160 reports of use of force, ranging from soft-hand control to use of a baton.

The records showed that there were approximately 61 reports of use of force in 2017, 46 in 2018 and 52 in 2019.

Chief Peter Reichard said that police have not discharged a firearm at a person since 2015. He said that stun guns are deployed 20 to 30 times a year in New London, on average, and in most of those instances thestun gunisn't actually used merely the show of it is effective in subduing a subject.

In 2015, NLPD enacted new use-of-force policies, constructed by a law firm that specializes in the issue. The policies require officers to report every instance of use of force, defined asany force that is more intense than handcuffing a person who is not resisting.

Reichard said that after enacting the new policy, theyrealizedtheir reporting of use of force "wasn't that strong" and the city saw an uptick in use-of-force reports filed in 2015. Before that, he said, the city had been underreporting.

In New London, civilian complaints must be made in writingwithin 10 days after the incident or 10 days after the final disposition of criminal charges. Reichard said that every civilian complaint is investigated and that there were probably about 10 to 15 per year.

The department uses a computer system that tracks civilian complaints, use-of-force reports and supervisors' complaints and automatically applies a "red flag" whenever an officer has multiple instances of use of force or civilian complaints. Supervisors are notified when red flags are applied, Reichard said.

The city also has a Police Community Relations Committee, but critics say the panel lacks authority to be effective.

Norwich

The Norwich NAACP and its Robertsine Duncan Youth Council want more than demonstrations and pleas for police and city government to hear their frustrations over persistent "senseless" attacks on African Americans by police and civilians alike including the racially motivated intimidation incident Tuesday morninginvolvingtwo womenat the Norwich Starbucks.

The NAACP issued a news release Thursday saying the branch "will work with our elected and appointed officials, police department, community partners and residents" on a five-point action plan to improve the community's race relations. The plan includes establishing a citizens review board to handle complaints of police behavior.

The plan calls for reviewing the 2018-19 state law enforcement database, the 2019 community survey commissioned by Norwich police, the Norwich police use-of-force policy, including whether knee holds, rubber bullets and stun guns are acceptable and thedepartment's record of disciplining or charging officers with misconduct.

The group also wants to review incidents of hate crimes and falsified reporting of crimes.

City Manager John Salomone said the city receives "a few" complaints per year about Norwich police none that he or Daley could recall that led to discipline of an officer.

Chief Patrick Daley said Norwich's use-of-force policy is a mixture of the city's own wording and state and national accreditation standards. It was last updated two years ago, when language was added regarding respect for the sanctity of human life, that human life is precious, and it is a police officer's job to protect human life.

The Norwich police written use-of-force policy explicitly prohibits "the use of neck restraints, chokeholds or other similar weaponless control techniques," unless the use of deadly force is authorized in the incident. The policy defines "hard hand controls" to include knee or elbow "strikes," punches and kicks, including to the side of the neck.

East Lyme

Chief Michael Finkelstein saidhehas receivedfew civilian complaints during his tenure in the department, and nonehas alleged race-based discrimination.

"These aren't complaints of malfeasance or abuse, but more about the officers' attitude or how they presented themselves during a situation," Finkelstein said. In those situations where an officer may not have actually broken policy, Finkelstein said he will have conversations with officers to help them "understand why the (complainant) had this impression."

"It's about how we can present ourselves better or communicate better. It's important for us to observe," Finkelstein said, and to learn how "to handle the situation better."

Complaints of misconduct, as well as use-of-force incidents,are investigated by a supervisor and presentedto Finkelstein for review and a determination.

Should disciplinary action be warranted, Finkelstein will forward the incidentto the town's Police Commission, which is appointed by the Boardof Selectmen andmade up of civilians,and was formed in 2017 when the town's police force left the state's Resident StateTrooper program and became independent. The commission then willmake a decision on which disciplinary action to take based on the evidence presented from both sides.

Finkelstein, who has been East Lyme's police chief since 2017, said the department has had "extremely low instances of use of force." He added no seriousinjuries have been caused because of an officer's use of force since he has been with the department.

Out of the approximate 450 arrests the department has made since June 1, 2018, there have been five instances where force was used during arrests. All of those instancestook place in 2020, Finkelstein said, andall those instances were deemedwarranted and appropriate and did not require disciplinary action. Hegave an example ofan instancewhen an intoxicated arrestee had tried to run from police into an occupied hotelafter recklessly driving his vehiclethrough town. Police used a stun gun to subdue the person.

Ledyard

Between June 1, 2018, and June 1, 2020, Ledyard police, with 23 sworn officers, reportednine instances of use of force and 17 complaints. Ninewere civilian complaints, and the remainingeight were initiated internally.

Ledyard police Chief John Rich said anyone in the department can take a civilian complaint, whether over the phone, in person or through a form available at the department and on the town website. Per department policy, all complaints are sent to a supervisor as soon as they come in. He said they do accept anonymous complaints, though it makes it more difficult to follow up when more clarifying information is needed.

When possible,the department also secures video or audio recordings to assist in the investigation.

Rich said all instances of use of force are documented with accompanying information, such as witness statements,photos of any injuries and medical release forms, and submitted to a lieutenant within 72 hours. If an incident is found to be an unnecessary use of force, the department conducts an internal affairs investigation.

He said corrective action can include discipline, such as suspension, and mandatory retraining in areas such as use-of-force policies or constitutional law. In December, the department reviews all instances of use of force from the year to determine the department's training needs for the coming year.

"Everybody understands that when you use force on somebody, just expect it to be reviewed," he said.

A recent use of force reported by The Day in March involved the use of a stun gun of a man who was fleeing on foot after officers found marijuana and cocaine in his car. The report found the use of force was justified, and the man's injuries were the result of tripping and falling while fleeing.

Groton City

Police Chief Michael Spellman provided The Day with seven use-of-force reports submitted between January 2018 and November 2019 and said the department is working to provide the civilian complaints. In every case, the reports were reviewed by command staff at every level and signed off by Spellman, and each time the officer who used force was determined to have been justified and within policy.

One report says a man who held a door shut with his body while undercover officers attempted to serve a warrant at Motel 6 was struck in the mouth whenthe officerpushed the door open.The reports in those cases indicate only that the people involved were"non-Hispanic."

Inanother case, a white man who wrestled while resisting handcuffing directed a racial slur at a black officer and attempted to spit at officers.

"I hear a lot about walls in today's world, and I talk about doors, and doors are open," Spellman said. "Ifyou have a concern, we'll hear it and listen to it. If we can make it better, we will. If we screwed up, we'll own it."

Groton Town

TheGroton Town Police Department provided an August 2019 complaint made by a woman who said an officer endangeredthe public by speedingthrough the intersection of Route 12 and Walker Hill Road to pursue a speeding car without activating lights or siren. Theofficer pulled over the woman after she flashed her high beams at his car and issued her a written warning. He said he had to look away from the car he was pursuing and lost sight of it.

The investigation included more than 13 minutes of body camera video, and asergeant concluded the officer had acted respectfully toward the woman and that his actions were "lawful, ethical, moral and within the scope of his training." The findings went up the chain of command to the chief for review, and Deputy Chief Paul Gately notified the complainant of the findings by letter.

The department said it was unable to immediately provide use-of-force reports, but Chief Louis J. Fusaro Jr. mentioned a recent incident in which an officer used a stun gun on a man who had a knife and was threatening to harm himself and others.

"Officers are trained on use of force and legal standards," Fusaro said, citing the Fourth Amendment, which limits police powers, and U.S. Supreme Court cases that set the precedent for use of force, Tennessee v. Garner and Graham v. Connor

"Anofficer doesn't have to wait to be assaulted or threatened to be killed," Fusaro said. "You don't haveto wait for someone to hit you over the head before you defend yourself. Anofficer can't stabilize the situation if they're incapacitated."

Stonington

In Stonington, where police respond to about 20,000 calls and 600 arrests a year, police Chief J. Darren Stewart provided The Day with the 39 use-of-force reports filed by his officers since the beginning of 2018. Six of them involve the same Pawcatuck man, who reports show often fights with police when they are called to his home.

Stewart also provided The Day with a summary of complaints showing that nine have been filed against officers since the start of 2018. Five of those were filed by the department itself against officers who did not follow procedures. That left four filed by civilians. Stewart said none of those involved the use of force. Stewart said his department would provide The Daywith copies of those complaints.

Stewart and Cap. Todd Olson explained that all use-of-force reports are reviewed by two of three supervisors to ensure officers followed department policy. They also pointed out that force is not only used during an arrest but may take place when officers are dealing with someone who is emotionally disturbed or under the influence.

"We have a good group of officers who talk to people. They come to work and they respect the community," Stewart said. "It's about treating all people fairly. Ultimately, police officers are judged on their fairness."

Waterford

Police Chief Brett Mahoney said the department typically has two to three use-of-force incidents a monthand follows the state model for review. If the investigation finds the use of force was justified, the chief can impose discipline of up to 30 days' suspension. Any recommendation beyond 30 daysgoes to the town's police commission, and any suspected criminal activity would be reviewed by the state's attorney's office.

Mahoneysaid the department had just closed its first civilian complaint investigation of the year,in which a person who was putting fliers on cars at police headquarters complained about an officer who approached him andasked what he was doing.The complainingperson refused to to identify themselves, Mahoney said, so he has no way of of getting him the finding, which indicates the officer's action was justified.

Staff Writers Claire Bessette, Mary Biekert,Taylor Hartz, Amanda Hutchinson and Joe Wojtas contributed to this report.

k.florin@theday.com

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A review of police use-of-force policies and complaints in southeastern Connecticut - theday.com

The full weight of U.S. policing has descended upon protesters across the country as people take to the streets to denounce the police killings of Breonna Taylor, George Floyd, and countless others who have been subjected to police violence. Along with riot shields, tear gas, and other crowd control measures also comes the digital arm of modern policing: prolific surveillance technology on the street and online.

For decades, EFF has been tracking police departments massive accumulation of surveillance technology and equipment. You can find detailed descriptions and analysis of common police surveillance tech at our Street-Level Surveillance guide. As we continue to expand our Atlas of Surveillance project, you can also see what surveillance tech law enforcement agencies in your area may be using.

If youre attending a protest, dont forget to take a look at our Surveillance Self-Defense guide to learn how to keep your information and digital devices secure when attending a protest.

Here is a review of surveillance technology that police may be deploying against ongoing protests against racism and police brutality.

Officers wearing new body cams for the first time. Source: Houston Police Department

Unlike many other forms of police technology, body-worn cameras may serve as both a law enforcement and a public accountability function. Body cameras worn by police can deter and document police misconduct and use of force, but footage can also be used to surveil both people that police interact with and third parties who might not even realize they are being filmed. If combined with face recognition or other technologies, thousands of police officers wearing body-worn cameras could record the words, actions, and locations of much of the population at a given time, raising serious First and Fourth Amendment concerns. For this reason, California placed a moratorium on the use of face recognition technology on mobile police devices, including body-worn cameras.

Axon Flex camera system. Source:TASER Training Academy presentation for Tucson Police Department

Body-worn cameras come in many forms. Often they are square boxes on the front of an officers chest. Sometimes they are mounted on the shoulder. In some cases, the camera may be partially concealed under a vest, with only the lens visible. Companies also are marketing tactical glasses that includes a camera and face recognition; we have not seen this deployed in the United States--yet.

A body-worn camera lens is visible between the buttons on a Laredo Police officer's vest. Source:Laredo Police Department Facebook

Sahuarita Police Department display its drones on a table. Source:Town of Sahuarita YouTube

Drones are unmanned aerial vehicles that can be equipped with high definition, live-feed video cameras, thermal infrared video cameras, heat sensors, automated license plate readers, and radarall of which allow for sophisticated and persistent surveillance. Drones can record video or still images in daylight or use infrared technology to capture such video and images at night. They can also be equipped with other capabilities, such as cell-phone interception technology, as well as back-end software tools like license plate readers, face recognition, and GPS trackers. There have been proposals for law enforcement to attach lethal and less-lethal weapons to drones.

Drones vary in size, from tiny quadrotors (also known as Small Unmanned Aerial Vehicles or sUAVs) to large fixed aircraft, such as the Predator Drone. They are harder to spot than airplane or helicopter surveillance, because they are smaller and quieter, and they can sometimes stay in the sky for a longer duration.

Activists and journalists may also deploy drones in a protest setting, exercising their First Amendment rights to gather information about police response to protestors. So if you do see a drone at a protest, you should not automatically conclude that it belongs to the police.

Photo by Mike Katz-Lacabe (CC BY)

Automated license plate readers (ALPRs) are high-speed, computer-controlled camera systems that can be mounted on street poles, streetlights, highway overpasses, mobile trailers, or attached to police squad cars. ALPRs automatically capture all license plate numbers that come into view, along with the location, date, and time. The data, which includes photographs of the vehicle and sometimes its driver and passengers, is then uploaded to a central server.

Photo by Mike Katz-Lacabe (CC BY)

At a protest, police can deploy ALPRs to identify people driving toward, away from, or parking near a march, demonstration, or other public gathering. For example, CBP deployed an ALPR trailer at a gun show attended by Second Amendment supporters. Used in conjunction with other ALPRs around the city, police could track protestors movement as they traveled from the demonstration to their homes.

A 'Mobile Utility Surveillance Tower' at San Diego Comic-Con and a mobile surveillance pole in New Orlean's French Quarter

Hundreds of police departments around the country have mobile towers that can be parked and raised a number of stories above a protest. These are often equipped with cameras, spotlights, speakers, and sometimes have small enclosed spaces for an officer. They also often have ALPR capabilities.

Common towers include the Terrahawk M.U.S.T. which looks like a guard tower mounted on a van and the Wanco surveillance tower, which is a truck trailer with a large extendable pole.

Forward-looking infrared (FLIR) cameras are thermal cameras that can read a persons body temperature and allow them to be surveyed at night. These cameras can be handheld, mounted on a car, rifle, or helmet, and are often used in conjunction with aerial surveillance such as planes, helicopters or drones.

Face recognition in the field froma San Diego Countypresentation

Face recognition is a method of identifying or verifying the identity of an individual using their face. Face recognition systems can be used to identify people in photos, video, or in real-time. Law enforcement may also use mobile devices to identify people during police stops.

At a protest, any camera you encounter may have face recognition or other video analytics enabled. This includes police body cameras, mounted cameras on buildings, streetlights, or surveillance towers.

Also, some police departments have biometric devices, such as specialized smartphones and tablets, that show the identity of individuals in custody. Likewise, face recognition can occur during the booking process at jails and holding facilities.

Social media monitoring is prevalent, especially surrounding protests. Police often scour hashtags, public events, digital interactions and connections, and digital organizing groups. This can be done either by actual people or by an algorithm trained to collect social media posts containing certain hashtags, words, phrases, or geolocation tags.

EFF and other organizations have long called on social media platforms like Facebook to prohibit police from using covert social media accounts under fake names. Pseudonyms such as Bob Smith have long allowed police to infiltrate private Facebook groups and events under false pretenses.

Cell-site simulators, also known as IMSI catchers, Stingrays, or dirtboxes, are devices that masquerade as legitimate cell-phone towers, tricking phones within a certain radius into connecting to the device rather than a tower.

Police may use cell-site simulators to identify all of the IMSIs (International Mobile Subscriber IDs) at a protest or other physical place. Once they identify the phones IMSIs, they can then try to identify the protesters who own these phones. In the non-protest context, police also use cell-site simulators to identify the location of a particular phone (and its owner), often with greater accuracy than they could do with phone company cell site location information.

Fresno Police Department's Real-time Crime Center. Source: Fresno PD Annual Report 2015

Real-time crime centers (RTCCs) are command centers staffed by officers and analysts to monitor a variety of surveillance technologies and data sources to monitor communities. RTCCs often provide a central location for analyzing ALPR feeds, social media, and camera networks, and offer analysts the ability to use predictive algorithms.

Read the original post:
How to Identify Visible (and Invisible) Surveillance at Protests - EFF

Four years ago I wrote an article for PoliceOne that was highly critical of a Ninth Circuit Federal Court of Appeals decision in George v. Morris. [1] This case resulted in a 2-1 decision in which the majority judges ruled against law enforcement officers and failed to comprehend the danger they faced from a subject holding a firearm and refusing to drop it. [2] Now federal judges from the Eighth Circuit, citing George as persuasive authority, have compounded the Ninth Circuits uninformed mistake in a new decision titled Cole v. Hutchins. [3]

In George, officers from the Santa Barbara (California) Sherriffs Office responded to a call from the subjects wife that her husband had a gun and was distraught because of serious illness. Officers found him in the back yard holding a semi-automatic firearm. An officer told him to drop the gun, but George refused. George was holding the gun pointed at the ground. An officer said he raised the gun and pointed it directly at him. Three officers fired at George and he was killed. A firearm containing hollow-point bullets was recovered next to his body.

The lower court in the lawsuit that followed refused to grant the officers summary judgment based on qualified immunity. The judge, following pre-trial procedural rules, declined to accept officer testimony that George raised and pointed the gun before they shot him. Instead, the court accepted as true Georges wifes claim that George was too weak to raise the pistol from his side.[4]

The lower court ruled that if the officers shot a man holding a gun pointed toward the ground after telling him to drop it, they violated clearly established Fourth Amendment rights. The two-judge appellate majority agreed with the lower court and ruled, If the deputies indeed shot the sixty-four old decedent without objective provocation with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment. I said in my 2016 article that the Ninth Circuit judges were wrong and cited a scientific study, titled Reasonableness and Reaction Time (Blair Reaction Time Study) to prove my point. [5]

The Blair Reaction Time Study was conducted by Dr. J. Pete Blair, executive director of the Advanced Law Enforcement Rapid Response Training (ALERRT) Center and criminal justice professor at Texas State University. The study involved 30 college students who played the role of suspects and 24 experienced police SWAT team members. Each SWAT team officer was told they were responding to a man with a gun call and to individually approach 10 different suspects, one at a time, who were placed in separate areas of a building. They were told to approach each suspect with their Glock training pistols (which fired marking cartridges) up and pointed at each suspect from a distance of 10 feet. Each suspect had a similar pistol either pointed at their own head or down at their side pointed at the floor. The suspects were told to shoot the officer after being ordered to drop the gun. [6] The officers were told to shoot as soon as each suspect made a move to shoot at them.

The suspects with the guns at their sides were able to raise and fire at the officers in an average of .36 of a second. The officers were able to fire their up and pointed pistols in an average of .38 of a second. The suspects with guns at their heads were able to lower, point and fire in an average of .38 of a second. Officers fired back in .38 of a second. The study proves that once the suspects started movement with the gun from down at their sides or away from their heads, the officers would be shot, regardless of their attempts to return fire. [7] This raises the rhetorical question, were the officers in immediate danger of death or serious bodily harm when the suspects had the guns pointed down at their sides or at their heads? Were the officers in the George case in a life-threatening situation when George held the gun at his side and before George pointed his gun at them?

Now Eighth Circuit judges in the newly decided Cole v. Hutchins case have erroneously adopted the Ninth Circuits unscientific approach in George. In Hutchins, Officer Hutchins of the Little Rock (Arkansas) Police Department, responded to a 911 call from neighbors that there was an altercation in the front yard of the Underwood residence.

Darrell Underwood and his nephew Roy Richards became involved in a physical altercation on Underwoods front lawn around midnight. Before arriving, officer Hutchins was told that Richards was armed with a long gun. Hutchins and a second officer parked a short distance away from the house and approached on foot because of their concern for the gun. A neighbor saw the officers approach and informed the combatants who were still fighting that the police had arrived.

From here the facts are disputed. However, the lower court in the lawsuit that followed this incident was required by pre-trial procedural rules to assume the truth of the plaintiffs version of the facts. [8] In that version, the fight continued for about 10 seconds before stopping by mutual consent. Underwood walked toward his front porch while Richards walked to his vehicle parked in the driveway.

Richards grabbed what appeared to be a rifle from the drivers side of his vehicle. [9] Underwood walked up the steps of the front porch and Richards walked around the back of his car holding the gun vertically and approached the porch. Richards started up the steps, but Underwood entered the home and slammed the front door. Richards walked back down the steps and started back toward his vehicle. According to Underwood roughly five seconds after he closed the front door, he heard five shots. Those shots were fired by Hutchins at Richards and he was killed. [10] It is alleged that Hutchins fired without warning Richards to drop the gun.

Cole, the personal representative for Richards estate, sued Hutchins and the City of Little Rock in federal court pursuant to 42 U.S.C. 1983 for allegedly violating the Fourth Amendment for using excessive force on Richards. The trial judge rejected Hutchins summary judgment motion based upon qualified immunity grounds. He ruled that the law was clearly established at the time of the shooting that an officer could not use deadly force against a person who posed no immediate threat to cause serious physical injury or death. Hutchins appealed to the Eighth Circuit, which affirmed the trial judges ruling.

The Eighth Circuit stated that police use of deadly force is objectively unreasonable absent probable cause to believe the suspect poses an immediate threat of death or serious bodily injury to others. The court stated that a suspects mere possession of a firearm is not enough to establish probable cause that he/she poses an immediate threat of death or serious bodily harm. Instead, the court opined that the suspect must also point the firearm at another individual or take similar menacing action. The court ruled that Hutchins's shooting of Richards was not objectively reasonable because Richards, with his gun pointed either toward the ground or the sky, retreated down Underwoods front steps and turned away from his front door. The court failed to mention or discuss that while the immediate threat to Underwood had lapsed, Richards still presented a deadly immediate threat to Hutchins and his fellow officer. To support its decision, the court cited an earlier Eighth Circuit opinion in which the court declared a police shooting unreasonable and not an immediate threat when the suspect held a gun to his head and began to move it away from his head when shot by police.[11]

The court was also critical of the failure of Officer Hutchins to warn Richards before firing at him. The court observed that a warning is necessary when feasible before an officer uses deadly force. The court explained that while the failure to warn when feasible does not automatically render use of deadly force unreasonable it does exacerbate the circumstances and militates against finding use of deadly force objectively reasonable.

The Eighth Circuits decision ignores the danger Richards posed to the on-scene officers during this incident. The courts focus was on the cessation of a deadly threat to Underwood when he entered his home and slammed the door. The fact that seemed irrelevant and inconsequential to the judges was that Richards was still in possession of what appeared to be a rifle and was walking toward his vehicle, a location that was about to give him the tactical advantage of cover behind the engine block or a vehicle pillar. Moreover, the opinion erroneously takes the position that in order for a suspect holding a firearm to be an immediate threat to an officer or others, he must point it at them or make a similar menacing action (whatever that is?).

This opinion and the earlier opinion of the Ninth Circuit in George demonstrates just how uninformed and out of touch many federal judges are regarding the threat posed to officers by persons holding a firearm, pointed at innocent persons or not, due to the deadly reactionary gap. In fact, Richards would still be a deadly threat to the officers before he reached cover behind his vehicle. He can decide to fire at the officers, rapidly turn, point the gun and fire so quickly that the officer will not be able to react in time. Reaction time studies show that once a decision to shoot is made and the firearm is pointed, a round can be fired in .3 tenths of a second. [12] This means that once the suspect points the weapon approximately four shots could be fired at the officer in 1.06 seconds.

Regarding the issue of a warning before an officer can fire. The Supreme Court in Tennessee v. Garner[13] made clear that warnings should be given if feasible. Common sense tells us that it is not feasible to warn if a reasonable officer believes it would place him in greater danger to warn. If the officer is standing without cover in the open in close proximity to the shooter raising or pointing a firearm, a warning is not feasible. If the suspect has his back to the officer but is holding a firearm, a warning may not be feasible.

In cases like this, it is imperative that attorneys representing accused officers present expert affidavit testimony to enlighten and educate the court in summary judgment motions and appeals concerning the action v. reaction concept, aka the deadly reactionary gap. [14] Moreover, scientific evidence from studies on the deadly reactionary gap, like the findings from the Blair Reaction Time Study and the many reaction time studies conducted by Force Science Institute Executive Director Dr. William J. Lewinski [12] establish beyond question that an officer who waits for a gun to be pointed at him/her can be shot before they can react. This scientific factual evidence must be communicated to all judges involved in cases of this kind.

Police chiefs associations should endeavor to be invited to speak about these matters at federal and local judicial conferences so that skeptical judges are apprised of scientific developments before becoming involved in similar matters.

References

1.736 F.3d 829 (9th Cir. 2013).

2. Callahan M. What the Ninth Circuit got wrong in George V. Morris (and why it still matters now). PoliceOne.Com.

3. (No. 19-1399). (8th Cir. 5/28/20).

4. After the shooting Mrs. George told the police that before they arrived, she tried to physically take the gun out of her husbands grasp but was unable to do so. This contradicted her claim that he was too weak to raise the gun. The court apparently ignored this information by limiting itself to the plaintiffs set of facts.

5. Blair P. Reasonableness and reaction time. Police Quarterly, Vol. 14, Issue 4, pp. 323-343.

6. Eighty percentof the suspects were told in advance to fire and the remainder were told in advance to surrender. The officers were not told how the suspects would react to the order to drop the gun.

7. This assumes accurate shot placement. From a distance of 10 feet, accurate hits are highly probable.

8. When a defendant in a civil rights lawsuit files a pre-trial motion for summary judgment, asking the judge to decide the case on legal or qualified immunity grounds without permitting a jury trial, the legal procedure requires the judge to accept as true for purposes of deciding the motion, the plaintiffs version of material facts when those facts are disputed by the parties.

9. All witnesses believed [it to be] a rifle but later learned it was a pellet gun after the incident was over.

10.Hutchins fired with his patrol rifle.

11.SeePartridge v. City of Benton, 929 F.3d 562, 565-567 (8th Cir. 2019).

12. Lewinski W, Hudson W. Time to start shooting? Time to stop shooting? The Tempe study. The Police Marksman, Sept-Oct 2003 edition. According to a later Lewinski study, every subsequent shot will be delivered in .25 of a second intervals.

13. 471 U.S. 1 (1985).

14. Even if the court refuses to officially consider the scientific study testimony at the pre-trial stage because of legal procedural rules, the judge will nonetheless receive important education on this critical topic.

Link:
Eighth Circuit judges fail to comprehend threat rifle-bearing subject poses to police - Police News

On Tuesday evening, as a large group of peaceful protesters marched over the Manhattan Bridge, members of the New York Police Department parked on opposite ends of the span, trapping 5,000 people over the water for nearly an hour. The night before, in Dallas, police officers corralled protesters on the Margaret Hunt Hill Bridge before arresting 674 of them (they were released later that night, with at-large charges for blocking traffic). That same night in Washington, D.C., police officers drove protesters into a crowded intersection of Swann and 15th NW with teargas. All over the country this week, police officers have surrounded protestersand then refused to let them leave.

This tactic is called kettling, a word you might have seen popping up in social media posts from and about the protests. The term evokes a boiling tea kettle, but it actually comes from a German military term referring to an army thats completely surrounded by a much larger force. Kettling is a law enforcement tactic specifically applied when the police have chosen to criminalize existence in public spaces, says Blake Strode, Executive Director of ArchCity Defenders, a legal advocacy group that has handled kettling cases in St. Louis. So separate and apart from who is caught in them and how people are impacted, which is all true and well-stated, it is also fundamentally about police dictating whom is allowed to be where and when.

Ostensibly a form of riot control, kettling occurs when police officers block off streets and push people into confined areas, like a city block or a bridge. While protest and riot management traditionally focuses on dispersing crowds, kettling is all about containment. When youre kettled, you have no access to bathrooms, very little space, and no place to go. Critically, no one gets to leave until the police say so. Basically, its a pressure cooker without a valve, said civil rights attorney Javad Khazaeli, ArchCity Defenders co-counsel on kettling cases.

In theory, the technique allows police officers to slowly release small groups out the kettle as a way of defusing tension. In practice, however, its deeply problematic. Youre interfering with peoples right and ability to do what the first amendment protects, which is to go out in the street and tell the government what you think, says Jonathan Smith, Executive Director of the Washington Lawyers Committee for Civil Rights and Urban Affairs. It also punishes the innocent for the misconduct of the few. That is also constitutionally infirm. To seize somebody, under the fourth amendment, you need to have a basis for doing so. But when kettling happens, large swathes of people are grouped together indiscriminately.

But kettling is particularly insidious for the way it elevates tension, rather than defusing it. The tactic of completely surrounding a group of civilians leads to panic and increases the likelihood of a physical confrontation between the citizens and the police, said ArchCity Defenders attorney Maureen Hanlon. Tensions run high in a kettleprotesters can become agitated, giving police officers grounds to employ more violent tactics and conduct arrests. Such was the case in Brooklyn this Wednesday, when police officers circled a peaceful protest at Cadman Plazaand then descended with batons. The danger is even greater while battling a pandemic: in addition to garden-variety aggressive policing, kettling is also the opposite of social distancing.

If kettles mark a new phase in this summers wave of protests, they are not a novel strategy for police. One of the first major instances in the United States took place at an anti-globalization and anti-war protest in Washington, DC in 2002, when officers protesters and random civilians alike in Pershing Park. Police hogtied some of those detained and posed for pictures. In 2017, DC police officers kettled protesters at Donald Trumps inauguration. That same year, police officers kettled protesters marching against the acquittal of former police officer Jason Stockley, who fatally shot Anthony Lamar Smith. ArchCity Defenders and Khazaeli are still handling those cases. Perhaps the most infamous kettle took place in London in 2009, when police attempted to contain 10,000 people protesting the G20 summit for several hours. The UK courts subsequently ruled that the maneuver was illegal, and that kettling could only be used as a last resort catering for situations about to descend into violence.

If kettling has been on the rise this week, so has the outcry against it, from AOC (No, this is dangerous, she tweeted, before heading to the bridge) to Mark Ruffalo. But NYC Mayor Bill De Blasio defended the Manhattan Bridge kettle on Wednesday morningsuggesting that, at least in New York, kettling isnt likely to go away any time soon. So what should a protester caught in one do? The Network for Police Monitoring acknowledges that kettles can be hard to anticipate, but youre at less of a risk if you move quickly. To that end, the Be Water protest strategy employed in Hong Kong is usefulan agile pop-up protest model based on movement and frequent digital communication.Situational awareness is the only real way to prevent it, Smith advised. If you feel like youre being trapped, take an exit route. Thats the safest thing to do.

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What Is Kettling? Explaining the Police Protest Tactic - GQ

The killing of George Floyd and the ensuing civil unrest have placed journalists at the center of

large-scale protests and demonstrations across the United States, including in major metropolitan

centers throughout Texas. In the course of covering these protests, many journalists have found

themselves in harms way, and members of the press corps have been assaulted, detained, or

arrested in the line of duty. The press has a responsibility to cover these public events, and the

First Amendment protects journalists ability to cover public demonstrations, such as those going

on in response to the death of George Floyd. The following outlines First Amendment

protections as they relate to coverage of protests and demonstrations.

Does the Press Have a First Amendment Right to Cover Protests?

Yes. In general, journalists have a First Amendment right to cover protests and demonstrations.

Members of the press cannot be excluded from public spaces simply because they are journalists.

Similarly, law enforcement cannot prevent journalists from reporting, and law enforcement or

government officials cannot retaliate against journalists for doing their job.

At the same time, these First Amendment protections do not place journalists above the law.

Journalists are still generally subject to the same laws and restrictions as the public, including

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orders regulating the time, place, and manner of First Amendment activity. Furthermore,

members of the press typically do not enjoy special access to places or information that are not

accessible to the public, and the First Amendment does not allow journalists to trespass or

otherwise break the law, even if they are doing so in furtherance of newsgathering efforts or to

report on protests or demonstrations.

Can Journalists Record Law Enforcement Activity at Public Protests?

Taking photographs or video of people or events that are visible in public is permissible and

constitutionally protected. Journalists who are lawfully present in a public space have the right to

record anything in plain viewincluding police activity, so long as the press activity is not

interfering with legitimate law enforcement operations. By contrast, when an individual is on

private property, the owner of the property may restrict anyones ability to record or require

individuals to leave for any reason.

As stated above, First Amendment protections to engage in newsgathering activity do not entitle

journalists to break the law, such as laws against trespassing. Journalists should also be familiar

with Texas wiretapping statute, which prohibits surreptitious recording of private conversations

without consent. Under Texas Law, a person may only record audio of conversations if those

conversations are in a public place where there is no reasonable expectation of privacy, or if at

least one party to the conversation has consented to the recording. As a matter of best practices,

journalists should clearly identify themselves as members of the press and remain open and

transparent about their use of recording devices.

When Can Journalists Be Detained or Searched?

If a law enforcement officer has a reasonable suspicion that a person is involved in criminal

activity, that officer can temporarily detain him or her in what is known as a Terry stop, (also

known as a stop and frisk). During such a stop, a law enforcement officer may conduct a patdown to ensure that a detainee is not armed and dangerous. For a law enforcement officer to

arrest someone, the officer must have probable cause to believe that the person committed a

crime. This is a higher standard than the reasonable suspicion required for a temporary stopand-frisk.

The Fourth Amendment protects individuals from unreasonable searches or seizures of their

property. Furthermore, the Privacy Protection Act of 1980 prevents law enforcement officers

from searching and seizing a journalists work product, including notes, photographs, and video

footage, without a warrant. If a law enforcement officer demands to inspect such newsgathering

materials, journalists should clearly identify themselves as members of the press and explain that

they are covered by this law. Furthermore, in the absence of a warrant, journalists may withhold

consent for law enforcement to search their belongings or work product, including the contents

of recording devices and cellular telephones.

What Should Journalists Do if Confronted by Law Enforcement?

Journalists should exercise extreme caution covering protests and demonstrations. Members of

the press have reported incidents in which journalists have been targeted by law enforcement for

covering protests. Members of the press have been detained or arrested, shot with rubber bullets,

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and sprayed with tear gas or pepper spray in the course of their reporting in the field. Journalists

should remain alert and mindful that they may face hostility from both demonstrators and law

enforcement when covering these protests.

Journalists should be sure to carry a government-issued identification, as well as contact

information for attorneys or organizationsincluding the Texas Press Association or the

Reporters Committee for Freedom of the Pressthat can provide legal resources and guidance to

journalists. Journalists should clearly identify themselves as members of the press and

prominently display all press credentials. Members of the press should remain alert and

cognizant of potential threats, and should calmly and respectfully discuss their rights with law

enforcement if they feel that their First Amendment rights to engage in newsgathering activity

are being violated.

Furthermore, journalists in the field should stay apprised and mindful of any dispersal orders or

curfews that may impact their ability to be in public spaces. Many state and local curfews

contain exemptions for members of the media, but members of the press should stay aware of

any developments that may impact their ability to safely or legally be at the scene of a public

demonstration.

Texas journalists should contact the Texas Press Association at 512-477-6755 or the Reporters

Committee for Freedom of the Press at 800-336-4243 or rcfp@hotline.org.

Originally posted here:
First Amendment Protections for Journalists Covering Protests - The killing of George Floyd and the ensuing civil unrest have placed journalists at...