Safe Behind A Wall

SB 217 was going to pass, come what may. Some of the more idiotic proposals were modified with amendments, or dropped altogether. Much of it is obviously virtue-signaling. How the Colorado Legislature and Governor felt moved to this hasty piece of work because some asshole in Minnesota couldn't put an arrestee in a patrol car without killing him... Incomprehensible is the exact opposite of what it is. It is entirely comprehensible.

Colorado's politicians were always going to do what they did. They were always going to add additional layers of "accountability" to police officers, whether cops in Colorado deserve the additional layers or not. Our state constitution permits these individuals to pass this bill, the Governor to sign it, and have it become law. That's the way it works. One need not agree with the outcome to support the right of the people to decide these issues.

Why do you have to call us names in the process? The pronouncements from individual legislators, and the Governor, suggest that these "long overdue" measures are necessary to overcome the "racism and oppression" found in the system.

Thanks. On top of everything else, being called a racist by my own government makes me feel a lot better.

This is a slap in the face to the thousands upon thousands of Colorado Law Enforcement officers, deputies and State Troopers who have served, and continue to serve honorably. It is an abomination to the memories of officers who have given their lives ensuring the safety of, and protecting the rights of, Colorado citizens and the people who visit our state. It is an example of denial by people who forget that members of the detail protecting them have encountered armed individuals within the very walls of their workplace, the officers risking their lives to protect the "leaders."

The politics of 2020 probably demanded that "something" be done. But, you made it personal when you said it was because of dishonor on the part of Colorado law enforcement. I served proudly, honorably, in all or parts of five decades. I was surrounded by some of the best people I will ever meet.

You could have had it both ways. You chose, instead, the insults. It is unworthy of a Coloradoan.

Between a Rock, and Harry's Place

"History repeats itself. That's the trouble with history." Clarence Darrow (Henry Fonda), IBM Presents Clarence Darrow, 1974.

It has certainly been an historic...or, is it a historic...few months. In an historic... In a very historic era, we have seen, among other things, a pandemic leading courts to brush the cobwebs from a case one hundred and fifteen years old to approve of and justify the first peacetime, long-term, shelter-in-place orders of healthy people in, well, in anybody's memory.

Then George Floyd died at the hands of a Minneapolis police officer in clear view of three other officers and a street full of people. The ensuing unrest led some legislatures - Colorado's being one of them - to consider banning the affirmative defense of Qualified Immunity for police officers.

I handled at some length what qualified immunity is in the post Headlines, Not Solutions. There is no real need to do that here. But, the irony of the situation that it places cops in is too ironic to ignore. Let me set the scene.

You and a cover officer are dispatched to "Harry's Place" restaurant on a report that the owner, in violation of your state's shelter in place law, has thrown open their doors and is doing business. The Governor has declared a state of emergency, the health department has issued their finding closing all restaurants; your chief, your division chief, your commander, your sergeant and your legal advisor all assure you that every executive order issued by the Governor is valid. They toss around some case law, just so you know they aren't pulling this out of their asses. Your sergeant gets you on the phone and asks you to stand by while the Health Inspector cites the owner for violation of Title Blah blah blah. Let's stipulate that every one of those officials - on that fateful day - has correctly stated the law.

You aren't so sure. You've read a bunch of stuff in cop groups on Facebook, watched some YouTube videos and interacted with senior officers who think all of this is, frankly, buuullshit. Things are getting better, there is talk about a phased opening in a week or two and some courts around the country are nibbling around the edges of finding exceptions to the 1905 Supreme Court case your command staff says is valid. Against your better judgment, you go.

This isn't Sultans of Swing. Harry does mind, he minds a great deal. There are words, an argument. You take Harry by the arm (which he also minds a great deal) and escort him out to your car, away from the customers who are beginning to ask - politely, at least at first - just what in the fuck you think you are doing. You watch as the germ geek gives Harry his summons, you politely tell Harry to have a nice day...

And, six months later you show up in court to testify that you did, indeed, witness countless persons consuming unknown alcoholic beverages and assorted food items, apparently served by employee or employees of Harry. Only, there is no court, and the judge isn't going to look at the 27 8X10 glossy pictures you took proving Harry's was open. The court dismisses the ticket on the grounds that the "emergency" as defined in the governor's declaration had passed. The law Harry was summoned for was invalid. Not to worry, your legal advisor says soothingly. You followed the law as it stood six months ago.

Only, your state has eliminated qualified immunity as an affirmative defense. The fact that your participation in citing Harry had not been "clearly established" as a violation of his rights doesn't matter anymore. You detained Harry by involuntarily escorting him to your car - he was not free to go - without probable cause because the law you relied on was unconstitutional. You are not just subject to lawsuit, but it will have to go to the jury because it turns on matters of fact, not law. Even the reasonableness of your conduct doesn't matter. What a reasonable officer should have known doesn't matter because the whole concept was tossed in the shitter up on Capital Hill. You could lose. Everything. Including Fasha, your dog.

As if that isn't bad enough, the burden of proof in civil court is "preponderance of evidence." The definition of preponderance is: evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not. Isn't that a happy thought?

 

So, guess what happens, State of Colorado, when the next governor-defined state of emergency declaration happens? It won't? See above. 

Any reasonable, rational officer will tell their chain to fuck off and take their letter of reprimand for inviting the Chief to do it herself.

Ironic, don't you think? 

An Open Letter

To Governor Jared Polis; Senator Jessie Danielson; Representative Chris Kennedy; Senator Leroy M. Garcia, Jr.; Senator Rhonda Fields; Representative Leslie Herod; Representative Serena Gonzales-Gutierrez

Dear Governor Polis and esteemed members of the Colorado General Assembly,

I am writing to express my high level of concern regarding SENATE BILL 20-217 as currently written. While I understand the need to do something given the current climate of anger, frustration, and worry, rushing a bill of this magnitude and impact will result in bad law, diminished trust in the process, and misplaced financial impact.  

Briefly – I spent thirty-five years as a law enforcement officer for a Front Range Department, twenty-one of which were as a first-line supervisor. I spent twenty-seven years teaching in the police academy, and five years assigned as a supervisor to the Jefferson County/Lakewood PD Academy, arguably the premier academy in Colorado. I spent ten years as an adjunct faculty member at Metropolitan State University. I have practiced law in Colorado and New York.

I began my studies in Criminal Justice in 1972 as a direct result of disillusionment with what I was seeing on the TV news about police corruption, a lack of training and discipline, and an overall sense that departments were unresponsive to the needs of their communities. When I began my career in Colorado in 1979, the professionalism wave had picked up momentum – there was still a lot of work to be done.

There is still a lot of work to be done. Recent events have highlighted that reforms still do not prevent uncommon but totally unacceptable aberrant behavior on the part of officers. High-profile, intolerable, shocking and fatal episodes of police mis- and malfeasance appear, on their face, to be immune to incremental or traditional means of reform. That much does not abide disagreement in any form.

The natural reaction among leaders is to do something, on the reasonable theory that anything is better than the status quo. It is comforting to put down into words anguish, frustration and a sense of powerlessness, clothed in the legal structure of proposed legislation that has a facial relationship with progress.

What is now on the table, what passes for reform, has so many pitfalls in the shape of unintended consequences that I wonder – perhaps it is time not for haste, but for prudence. Here in Colorado, we have the advantage of our temperament, our western style of common sense problem-solving, and a very real sense that policing in our state is, for the most part, woven successfully into the fabric of a society nominally at peace with itself.

I do not presume to tell you how to lead. I only make one basic suggestion, which I think will make the resulting legislation something for the rest of the country to emulate, and something for which Coloradans can be proud.

Before sending anything to Governor Polis’s desk, begin the inquiry by asking the advice of the average Coloradan. Police Chiefs and command officers are fine men and women, but their relationship with line policing is attenuated by the distance between their office and the street. Find out the frustrations of the officers who are tasked with solving Colorado’s law enforcement issues, and see what tools they would want.

Find out what citizens want, not by asking so-called community leaders, but the average citizen. What are their expectations of government, of public safety and the law. Surveys and studies have their places, but what does the average citizen say.

Colorado can easily be broken up into three distinct regions. Do your efforts attempt to address problems that don’t manifest themselves in – say – Grand Junction, or Sterling?

Finally, please understand – as well-meaning as any effort is, we are people. Flawed, fearful, freedom-loving and generous. We can do this, together. We can make Colorado a beacon of hope in turbulent times. We successfully balanced the priorities of a vibrant state during the recent pandemic by listening to an array of Colorado voices. Law enforcement reform is no different.

Thank you. God bless Colorado, and the United States of America.

James Greer

Lakewood, CO  

Getting to Good

Whenever you're faced with an explanation of what's going on in [government], the choice between incompetence and conspiracy, always choose incompetence.

Charles Krauthammer

As one might imagine, police reform has been a hot topic among the Bikecopblog Family of readers. There is some agreement, some dissention, an allegation on the part of another police officer that I am, in fact, an idiot (he's not the first) and the real possibility that my alter-ego is the Underminer. 

I'll give that one a chance to percolate.

It's a million degrees and, at the time of this, our AC has crapped out. It is amazing to sit in the sun and revel in summer temperatures, but only if there is a place to cool off. So - no bike ride today, but time on the stationary trainer (in the very comfortable basement) bridges the gap.

I generally put on either: A fitness workout from GCN Network, or; Dan Bongino. Dan is a dose of red meat, with a bit of My Cousin Vinny thrown in. Today was an interview, which ended before my countdown clock expired. So I got to watch Peter Robinson on Uncommon Knowledge talk to NY Times columnist Ross Douthat.

Think what you will about the NYT. They may be obnoxious partisans, but no one ever said they are stupid. The fellow made an especially interesting point about The 'Rona that I think carries over to what is happening across our country. It might be a way - just one way - to bridge a few gaps.

Mr. Douthat explored - in a long and meandering interview - the role of competence in government. He employed the "You had one job" methodology (this about the CDC) to explain that people's animosities toward government aren't entirely that government is corrupt, but that government isn't competent even to deliver basic services. Think about it. I did, in the context of the "Defund the Police" movement.

I'm with former US representative Trey Gowdy - defunding the police is the single stupidest idea expressed during the recent turmoil. Public safety is a basic role of government ("Among these are life, liberty and the pursuit of happiness. That to secure those rights governments are instituted among men deriving their just powers from the consent of the governed."). Law enforcement is a core duty, a core role, of governments...like, for forever.

In 1969, citizens of a section of Jefferson County (Colorado) decided to incorporate for the purpose of...wait for it...creating their own police department. They wanted to create a model of excellence, capacity, character and competence. Whether they did or not (I think they did, but I'm not objective - I worked for them for thirty-three years) is beside the point. Americans see protection by their police department as a right endowed by their Creator. With me?

The defunders have a plan - community members trained to intervene in disputes using proven methods of... Blah, blah, blah. It's all very pre-Sir Robert Peel. Eventually, we are right back to what we have now. Okay, but peel (I know, right?) back their naivete and they may be saying something worth considering.

Let's look past the rhetoric, and the anger, and the emotion. What are they saying to police departments, these people who want to defund the police?

"We don't trust you to do the basic job of protecting us, of respecting us. We'd rather give it a whirl ourselves."

Maybe that's silly. But, wait! Remove the anarchists, the common criminals, the opportunists and the pimply guys just trying to get laid and what do you have? Very angry, very emotional people who don't just think four cops in Minneapolis let them down, they think cops everywhere are letting them down. Cops may be great dancers, they may look cool when you pour a bucket of water on them, but if you have to call them for something, well... It's like Forrest Gump's box of chocolates. No, it's Bertie Bott's Every Flavour Beans. You might get something that makes your day brighter. You might easily get ear wax, or vomit.

You call the cops and who shows up? A caring, empathetic, talented man or woman (who probably went to our academy) or do you get "Mr. Perpetual Bad Day?" People understand that cops have to be able to meet violence with some level of violence, but... Shouldn't the citizen be, I dunno, violent? They understand the cops didn't make the 'Rona laws, but could they at least read the sign whose dictates they are enforcing?

Folks, before you get all defensive, let's play a game. You call out on an occupied suspicious vehicle at three in the morning, and dispatch sends you a backup. You think...them? Your friends all the way across town think - "Them?" - and start your way. Go ahead, tell me I'm wrong.

Poor training, non-existent leadership, crappy standards, politicians catering to the mob. The overwhelming majority of cops, and I say this based on experience in five decades (three days short of a sixth), are courageous, intelligent and caring people. They want to do the best job possible.

Yes, this includes the Minneapolis cops. They work in a tough environment, with minimal support from even their own command staff. They've stayed because they want to do a good job. You try it sometime, when the training money isn't spent on core competencies.

The protesters are saying, in theory if not in fact. "We pay our taxes and we get you. Brilliant."

I spent three years working for the housing authority in Syracuse, while I attended law school. I met hundreds of people living on government assistance - public housing, food stamps, welfare. They were, almost without exception, honest, intelligent people who were trying to make their way in life. They wanted safe communities, they wanted the best for their children and they wanted Syracuse PD to arrest criminals, keep the peace and treat them with respect. Does that sound familiar?

Before you think this is a leftist idea to throw us all into turmoil...how many guns have you bought this week? And, where are they?

We owe it to ourselves as citizens, but we also owe it to our cops, that when police departments ask the questions of how to gain and maintain the trust of our communities, we make a commitment to them, that we support excellence in the core competencies. Support we will back up at the ballot box, at city council meetings and at tax time.

The best cops I ever met are the ones (you know who you are) who were always asking themselves, pushing themselves, demanding of themselves - how can I be better? When someone calls the cops, and I get there... Will I make a positive difference? If not, where do I go to get what I need?

Because they always want to be competent.

Oh yeah. "Behold, the Underminer! I'm always beneath you, but nothing is beneath me!"



   



  

Headlines, Not Solutions

There's certainly a lot to digest - is OC the functional, or moral, equivalent of tear gas; is Antifa a terrorist organization or, as Dan Bongino claims, a bunch of guys living in Mommy's basement eating Hot Pockets; when you mention retired Navy SEAL Jocko Willink do you hear people ooh and ah...but they've never actually read his book Extreme Ownership and know that the message is to own challenges and defeats, as well as triumphs?

The death of George Floyd at the hands of a Minneapolis police officer has raised - in some ways re-raised - an unavoidable conclusion. The best of the finest are always owning introspection and improvement, when they aren't ducking bottles and bricks, or trying to decide which of the protesters has a gun. There are always reforms to embrace, always challenges to be met and overcome. Solutions often start with "What am I doing that contributes to the problem, and how can I change that?" But then...Congress.

A friend - an exceptional and honorable police officer - alerted me to a bill that is being considered in the US Senate, abolishing something called "Qualified Immunity." Before I go on:

Law Porn Alert.

There, I said it. Let's get to the business at hand.

How, you might ask, can I possibly cite Jocko (oohh...ahhh) and then even imply that cops should be immune from... Anything. Be accountable, take the punishment. Etc. Fair enough. Let's begin with what qualified immunity is - something even lawyers misunderstand.

First, it is not immunity from being prosecuted for criminal acts. Qualified immunity is a creature of Federal Civil law arising out of 42 US Code Section 1983 - a cop can be sued for depriving someone of a recognized right (among other things, a constitutional right) under color of law (using their authority as a cop). That seems like a straightforward concept, eh?

Being a police officer in 2020 is far more complex than it was even when I started which, come to think of it, was a while ago. A succession of Supreme Court decisions have created bright lines in some cases, made muddy waters capable of being plowed in others. I'm a lawyer, and there were times when I wasn't sure what the law required, or restricted, especially at three in the morning when the shit is most definitely getting real.

The law makes provisions for that. In case after case, officers have been granted immunity from suit because they were - stay with me - being sued for something no one knew was a violation of the Constitution.

This is what Dr. Atul Gawande (The Checklist Manifesto) calls a "Pause Point." I know you are thinking: We've owned this thing since 1789. How in the hell can something about the Constitution be UNKNOWN? 

I know, right? Let me introduce you to Arizona v. Gant (2008), which isn't a qualified immunity case, but you'll see why it is important.

Prior to Gant the law about searching cars had been fairly settled. Some of it was a little complicated, but it had been the same complicated for decades. For our purposes - If an officer stopped a car and arrested "a recent occupant" for anything, they could search the whole car. Yeah, the whole car. Like it or not, that was what the Supremes had held in 1981, and we were all pretty sure we knew what was constitutional.

Then, 5-4, the court changed everything. Gant was a dude charged in Tucson after dope was found in his car. He'd been arrested for - wait for it - driving with a suspended license. Justice Stevens, writing for the majority (which included Scalia and Thomas...crazy, huh?) said that the search was unreasonable and a violation of Gant's constitutional rights. In doing so they severely restricted an officer's searching authority, requiring a sort of particularized probable cause (don't worry about it. Just go with me on this). They didn't pull this out of their...caboose. The case is actually pretty interesting. But...

Go back to Section 1983 - the evidence was suppressed because Gant's constitutional rights were violated. Can't he sue?

Sure, but he can't win because of - Qualified Immunity! How could a reasonable officer (an objective standard) in 1999 know that Johnny Roberts and the Supremes would change their interpretation of the 4th Amendment in 2008? Being held accountable for a constitutional violation in 2008 for something the Court said was okay when you did it in 1999... That would suck.

Court clarifications about the law happen all of the time. In 2008, two officers of the San Francisco Police Department went to a disturbance involving a person for whom the Americans with Disabilities Act protections applied. That person had a knife and tried to stab the officers - yelling the whole time she was going to kill them. Both officers, being intelligent and mature women who weren't especially keen on dying, shot the woman. Miraculously, the Sheehan involved in San Francisco v. Sheehan survived. Of course, she sued, under the novel idea that the officers did not accommodate her disability under the ADA while they were violating her 4th Amendment rights.

Well, how the hell were the officers supposed to know the answer to that? Qualified immunity is denied only if the rights being violated are "clearly established" at the time of the incident. No one had ever raised this issue before. The Court found in 2015 - unanimously (sort of) - that the officers deserved qualified immunity.

Whew! Seriously, how would you like to be my poor wife, who has to listen to this kind of stuff? No wonder she rides her horse three times a week - she needs the peace.

So why would Senators want to hold police officers accountable for things no one knew were violations of the Constitution?

They are jerks. Any questions?