"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, December 28, 2016

The 6th Circuit hurriedly, and illegally, created a precedent protecting police officers in shootings during home raids, putting people and people's pet in danger of on-sight execution, and doing it in order to defeat a wrongful death/civil rights lawsuit of a little girl

Your dog (and my dog) is property.

In 2002 in New York, for example, a court has ruled that there is no cause of action for loss of companionship of a dog - even due to a pharmacist's mistake that killed that dog.

And, recently, in Canada, a judge took his time to mock a childless couple who, while divorcing after 16 years of marriage, asked the court to treat their dogs as their children and to award physical custody and visitation of them.  The judge said - I do not have to decide on the custody of kitchen knives, and the same applies to dogs, as property under the law.  Thus, crossing out, as unimportant, feelings of childless humans toward family pets as family members, and obviously crossing out feelings of family pets towards humans, too.

There is a whole project created to assert in court that animals are not JUST property - that, due to their status as living beings, they must have some rights other than property.

Meanwhile, a new court decision about family pets' right to life was reported from a federal court in Michigan - and is causing waves in comments in the social media - that a police officer entering a residence may shoot a dog if the dog moves or barks.

Police shoots family dogs lately in alarming numbers, as an article reporting on the same federal court decision observes, so that even law enforcement publications raise the question whether we are dealing with an "epidemic" of such shootings.

And, for an officer, anything - anything - qualifies as a reason to be afraid for his safety - even when a dog is STANDING over the corpse of her dead companion dog and barking at its killer, but NOT attacking or moving.

Of course, the article recognizes public anger at the decision and claims that "nothing changed" by the decision - that people still have constitutional 4th Amendment "property right" against governmental "unreasonable search and seizure", killing of a family pet qualifying as a "seizure" - the judge "just" found, in that particular incident alone, that the killing was reasonable and "justified".

Yet, that claim, that "nothing changed" is not true.

Under precedential power, in the jurisdiction covered by the 6th Circuit - and, likely, in the entire United States, looking at that decision as a precedent - the "totality of circumstances" "test" now includes a dog "moving or barking", and thus, ANY officer entering ANY residence with a dog, is empower to shoot the dog on sight, and then concoct a story about being "threatened" - unless, of course, every owner installs INTERNAL security cameras and crates dogs within the home at all times - which are, both, unreasonable suggestions which will not work and will not be utilized.

Right now, at 11:20 am Eastern Time, as I am writing this article, there are 324 comments and 702 shares of the article about the 6th Circuit's decision:

Most comments are from people outraged by the decision and indicating that they will protect their pets the same way they will protect themselves - with armed resistance.

And this is just one example of how unreasonable court decisions, made contrary the contents of the record showing that, at the very least, the 2nd dog did nothing to invite the officer to kill her,

decisions made for a pre-judged purpose, in order to protect the government from liability, can cause disrespect to the judiciary and destroy people's belief in the rule of law.

Of course, there were attempts to "calm down" the public - with comments accusing the reporters of "click-baiting" and "misleading the public:

The commentator Rob Cozart is, of course, according to his LinkedIn profile, and according to his FB profile, a retired police Leuitenant:

with the exact same mentality that causes the public to fear the police: look how he reacted to my comment that the decision has a precedential power:

As soon as anybody tries to just point out that a certain precedent is going to be dangerous in application, giving the police extremely broad powers to shoot at family pets - which can, by the way, kill children and people who are inside the house, next to the dogs, and who the dogs may be protecting - the police logic is:

  • our "system" - whatever it is - 'isn't perfect, but it's the best one in the world", and
  • that "that's why everyone wants to come here" - I do not know whether Rob Cozart was hinting at the fact that I came to the U.S. as an immigrant, but that's what the clear implication is.

Of course, the "best system in the world" has resulted in an epidemic of wrongful incarcerations, incarcerations in for-profit prisons, and incarcerations that exceed, by far, incarcerations in all other so-called "civilized" countries, as well as police shootings of innocent unarmed people (not just dogs), reported nearly daily, and thus cannot be considered "the best system in the world".

Apparently, for a police officer, or a retired police officer, there is magic in words - as soon as the magic words "we have the best system", and "that's why everyone wants to come here" are pronounced - they are supposed to justify any violations of the law and of people's (and animal's) rights.

According to this retired police officer's logic, this

was justifiable, and unless the officer is allowed to shoot, and shoot, and shoot, and shoot again the dog that provided no threat to him - and then shoot her "to put her out of her misery" because "he didn't want to see it suffer" - while the dog could be saved by simply taking it to the vet, and the officer definitely was not threatened by a wounded dog - unless the officer would be allowed to do THAT, "the rest of the country" will "turn into Chicago".

That's exactly the mentality that should have given the federal court pause and should have prevented the court from ruling that ALL of officers' shootings - including the shots that wounded a dog just standing at a distance and barking, and that killed that same dog, after it was wounded down - that all of that is justifiable under the "totality of circumstances" "test".

Of course, the owners of the house offered officers keys to open the door, and obviously could be allowed to come in in front of officers to calm down the dogs - but officers refused to use the keys under the pretext that there was a possibility that "false keys" could be offered to delay the search and allow evidence to be destroyed.  Instead, dogs were "destroyed".

And, of course, the "totality of circumstances" "test" is no test at all, giving the widest discretion to police officers to claim they were "threatened", even in situations where they cannot be possibly "threatened" so as to justify the use of deadly force - and that applies not only to dogs, but to police shootings of people, too.

And, of course, the K-9 "units", dogs "working" for the police are, of course, cherished by the police - which does not cancel the fact that police shootings of other people's dogs is on the rise, making, once again, even a law enforcement magazine calling it "an epidemic".

Now, as to the Fox article being a "click-bate" that caused so many angry comments from the public as to the court decision.

The court decision clearly states that:

  • the police had a search warrant, but not an arrest warrant;
  • that the target of their search warrant was a person who was arrested outside of the house before their search of the house;
  • that the police arrested - and handcuffed - one of the plaintiffs, without an arrest warrant, explaining to him that they are going to exercise the search warrant - which was illegal, because there is nothing in the law allowing them to insist that they can only exercise the search warrant in the absence of residents, and especially to arrest residents, who provide no resistance at all and pose no threat, without an arrest warrant, in order to prevent their presence where the search warrant is exercised - such "policies" allow police officers to plant evidence during searches in the absence of witnesses;
  • the handcuffed plaintiff offered officers the keys to the house that he just used to open the house and to let the dogs out;
  • the police looked inside the residence before ramming into it, and saw two pit bulls - a 92-pound and a 53-pound dog - jumping, "pawing", and barking at the windows;
  • the arrested plaintiffs could very well be allowed to get into the house with the police officers in order to calm the dogs down or crate them;
  • the police refused the use of keys and rammed the residence instead;
  • there was no people inside the house - the handcuffed plaintiff came to the house during his lunch break to let the dogs out - so the justification that somebody will "destroy the evidence" if there is any delay in opening the door is fake;
  • that the smaller dog "never barked in her life", and that she disappeared from the upstairs room into the basement after the police entered the house - indicating that she would rather retreat than attack the officers and presents no danger to them;

So, great job, the 6th Circuit - encourage police officers to shoot dogs inside a residence on site, because they "moved or barked", and then justify the killing of a child or an adult that the dog covers with his body by claiming that the officer "felt threatened by a dog", and "did not see a human".

There was already an alarming court decision from the 2nd Circuit that justified discrimination against smarter police force candidates, indicating that employers of new police officers are justified not to hire smart candidates, for fear that they will leave the job soon for greener pastures:

"Applying that lenient standard of review, we conclude that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed -- on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC -- that there was such a connection.

Plaintiff presented some evidence that high scorers do not actually experience more job dissatisfaction, but that evidence does not create a factual issue, because it matters not whether the city's decision was correct so long as it was rational. The city could rationally have relied upon the guide to interpreting test results provided by the test maker as justification for reducing the size of the applicant pool with both a low and a high cut off.  Even if unwise, the upper cut was a rational policy instituted to reduce job turnover and thereby lessen the economic cost involved in hiring and training police officers who do not remain long enough to justify the expense."

As a result of that horrible decision, police departments "justifiably" started to hire dumb brutes who would shoot first and think never.

The 6th Circuit decision about shooting a dog inside a residence if it "moves or barks" will embolden those dumb brutes even more.

The 6th Circuit decision was made on a motion for a summary judgment - where the court rules on evidence, instead of a jury, and decides whether there are "reasonable issues of fact" raised in opposition to the motion.

The use of summary judgment in federal court has been challenged as unconstitutional by legal scholars as usurping the parties' 7th Amendment right to have their factual issues decided by jury.

Summary judgments are decided on a pretense that the court is not deciding factual issues - it is only "spotting them", and granting the motion only if the court is unable to find "triable issues of disputable facts".

Yet, even with summary judgments, courts have a 2-prong test only to resolve - without resolution of the issue of justification - and both the district court and the 6th Circuit unlawfully resolved that 3rd issue.

In review of a qualified immunity defense (a concept, by the way, unlawfully amending the Civil Rights Act by judicial fiat in violation of Articles I and III of the U.S. Constitution, because this "defense", as a restriction of civil rights plaintiffs right to a remedy for constitutional violations, does not exist in the Civil Rights Act, and cannot be introduced into the Civil Rights Act by a court), the court follows a 2-prong "test":

  1. taken in the light most favorable to the party asserting the injury (the plaintiffs), do the facts alleged in the complaint show the officer's conduct violated a constitutional right
  2. is the right clearly established.
In this particular case, the court did acknowledge that it must follow this test:

The 6th Circuit answered the 1st question in the affirmative - that there is, indeed, a constitutional right of people not to have a dog "unreasonably seized" - as in "killed". There are no emotional rights of owners losing pets as family members, and there are no right to life of pets reviewed, raised or discussed, of course.

As to the 2nd question of the prong - whether that right was "clearly established" by the time the defendant officers acted, and the 6th Circuit also answered that question in the affirmative - yes the right was clearly established by the time the defendant officers acted.

So, a two-prong test, the court has answered both prongs in the affirmative, end of story, motion for a summary judgment had to be denied.

So why was it granted?

and the 6th Circuit judges, the amiable looking Judge Karen Nelson Moore, age 68,

the kind-looking Judge Eric L. Clay, age 68,

and the assigned district judge Joseph M. Hood, age 74, of Kentucky,

an author of a law review article on "judicial independence" - I guess, in not following the court's own rules, too -

these 4 judges unanimously violated that "test" and raised and answered a THIRD question - a question that only a jury can answer - whether actions of the officer, in violation of a clearly established constitutional right, were JUSTFIABLE?

Here is what the 6th Circuit, in the place of a jury, decided as to the "reasonableness" of killing the first dog - the 93-pound pit bull:

And here is what the court decided about the 2nd dog - the one who disappeared when seeing the officers, never lunged at them, was just standing and barking in the basement, the one that was killed "to put her out of her misery" after she was wounded and presented no threat to the officers:

Once again.

The question before the court as to the second pit bull was - "whether the Plaintiffs presented a genuine issue of material fact as to whether [the second dog] posed an imminent threat to the officers' safety".

That is too narrow - and incorrect - concept of what the court must do on a motion for a summary judgment, a 101 1st year law student F-grade incorrect.

Because, on a motion for a summary judgment, the moving party (the defendants, officers), have the burden of proof.  And, if issues of fact are raised on the record of the moving party - as it was undoubtedly done here - the burden of rebuttal does not even shift to the opposing party.

When the defendants, on a motion for a summary judgment, recognized, as to the 2nd dog, that it did not lung at the officer, was just standing or hiding - and he still shot at her, and that, Officer Case "fired a fatal shot" when he found the dog "bleeding profusely behind the furnace", when, answering the court's own question, the dog presented no "imminent danger" to the "officers' safety", and the killing - instead of notifying the owner so that he would be able to bring the dog to a vet to save it - was presented as a "mercy killing", to "put the dog out of its misery" - glaring issues of fact existed based on the defendants', moving parties, own record, and the court HAD TO, was OBLIGATED to DENY the motion for a summary judgment, because the defendants did not meet their burden of proof, at least with the 2nd dog.

When the court ruled that all officers' actions were "reasonable" and "justifiable", the court also resolved two disputable issue of fact:

  1. whether the officers' actions were reasonable and justifiable under the "totality of circumstances"; and
  2. whether officers are credible as witnesses,
thus usurping the function of the jury.

What is bad about this decision is not only that the court

  • violated its own "2-prong test" on qualified immunity defense, and
  • violated its own law as to how motions for summary judgment must be decided
in order to bend over backwards and justify police killing of two dogs.

It is about precedential power of these decisions, and how this decision will further empower police officers to shoot first and think never.

Now, expect not only dogs, but humans, adults and especially children to be killed.  Children are those who family dogs usually protect and cover with their bodies, and who will be subjected to the rain of bullets on police entry into the house.

And wait, why did the 6th Circuit which, as all federal appellate courts, affirms without an opinion, by summary non-precedential orders, all appeals in civil rights lawsuits?

Why didn't it do just the same here?  Just affirm it, without expending any time on a 25-page opinion?

There may be a reason for that that goes beyond dog killing.

And that reason - the need to create a precedent protecting the police and creating a new standard for the court to usurp jury functions and decide, instead of the jury, the question whether the police officer's actions were or were not "justifiable".

And that reason has a name and a face.

A sleeping child, a 7-year old girl Aiyana Stanley-Jones, was already killed in May of 2010 during a no-knock police raid - "coincidentally", in Detroit, Michigan, a lawsuit under Civil Rights Act and wrongful death was filed by the girl's family, the police invoked the affirmative defense of "qualified immunity", moved to dismiss, with the following conclusion:

and a jury trial was set for August 8, 2016, but then the case was stayed, at the request of the Plaintiffs, on a "Colorado River" abstention because of a parallel litigation:

Note that, even though the civil rights/wrongful death lawsuit of Aiyana is listed as "closed", it is closed only "for administrative and statistical purposes", but in reality it is only stayed:

Note that the case languished in state courts and in federal bankruptcy court for no fault of Aiyana's family:

and that the court rejected the Defendant's (officer Joseph Weekly's) claim that his federal rights will not be adequately protected in federal court:

The officer was accused of throwing a flash-grenade and shooting into the residence and killing a sleeping child to create more drama for a reality show video - but charges against the officer resulted in two mistrials, a dismissal of the charge by the judge, which the prosecutor did not appeal, and in agreement by the prosecution to ultimately pursue criminal charges against the officer; and the officer was reportedly reinstated on the job.

In the civil rights case though, the officer was not out of hot water, and his attorneys resisted disclosure of the officer's official account, made by him within hours of the shooting and with a fresh memory, necessitating Aiyana's family to file a motion to compel production of that document, which production Officer Weekly opposed on contrived and non-meritorious reasons:

  • that the officer is, allegedly, "not in possession" of his own statement;
  • that the Plaintiff allegedly did not issue discovery request for that particular document, even though the document was subject to mandatory discovery exchange pursuant to Federal Rules of Civil Procedure; and
  • that the document, the account of the shooting, is allegedly the "work product" of third parties - the police department.
It is interesting that the counsel who raised these obviously frivolous grounds, was not punished by the court for frivolous conduct - a civil rights attorney for the plaintiff, in his place, raising the same issues would have most certainly been sanctioned.

In the civil rights case, Plaintiffs also made a motion to strike Officer Weekly's two expert witnesses for non-compliance with discovery, and Officer Weekly made a motion to preclude portions of testimony of two of Plaintiffs' witnesses, one - an expert witness who planned to provide an opinion about standard police practices of planning and de-escalation of raids on residences, and the other - an expert on weapon safety and ballistics, as supposedly irrelevant to the triable issues.

Here is the complaint in Aiyana's case that is stayed, not dismissed by the federal court, and here is the order of stay, over the opposition of Officer Weekly.

Here is the entire docket report in her civil rights/wrongful death case in federal court, obtained by me personally from today.

Here is the shameful Answer by Officer Weekly raising "qualified immunity defense" for throwing a flash-grenade and shooting into the residence where a child was sleeping, so that the TV crew present get more "action" for their footage to sell it to the viewers.

Here are the pleadings in the 5 outstanding motions in Aiyana's federal case:

are all pending, only stayed.

The lawsuit can be revived at any time.

So, this "bending-over-backwards" decision about "justifiable" "mercy killing" of a dog by a police officer, a dog that presented no harm, the unnecessary killing that was done in the absence of the owner, who was just outside the house, offered help, offered keys, but was illegally arrested, without a search warrant, handcuffed and detained, so that officers would have fun using his dogs as shooting targets, with him handcuffed and listening to the carnage - this shameful, and shameless, decision, violating the very "tests" and rules of how qualified immunity defense and motions for summary judgments, are to be resolved, this decision is not so much about dogs.

All of it was about protecting a reality show star for A&E, police officer Joseph Weekly, from accountability for killing of a little girl on camera.  There was also a question whether the flash-grenade was thrown, and the shooting occurred that killed the little girl because the officer was trying to impress and provide material for a TV series "The First 48".

So, it was protecting the movie star.

And the practices of the police department who invited a TV crew to film a home raid upon unsuspecting people, with a child inside - where the child died as a result.

And, the dog case - a supposedly unconnected case - was to serve as a convenient vehicle to create a precedent, a court rule indicating, should the case return after a stay, that:

  • a federal court, sitting in review of a motion for a summary judgment in a civil rights case litigating the use of force, and deadly force, by a police officer - against anybody - people, as well as pets - may rule on reasonableness on the issue of "qualified immunity" defense, even though the "qualified immunity defense" 2-prong test does not include the "reasonableness"/"justification" question and even though that question is within the jury's, and not the court's, power to decide
So, don't think that "a police officer can shoot the dog if it barks or moves" case is only about the dogs.

It is predominantly about the people.

About the police shooting people, and children.

It is about Aiyana Stanley-Jones, and killing her twice - first her life, and then her lawsuit, and ability of her family and her estate to have any remedy for the killing-for-reality-show.

Now expect the police to shoot on sight, if a dog is on the couch alone, or cuddling with an adult, or protecting a child, and expect courts to justify the police killing as "reasonable".

Expect the police to push the envelope even further and claim, in cases where there is no dog, and when they killed a human during a home raid, that they thought the human, adult or child, was a dog who moved on the couch in the dark, was not visible, and that officer "reasonably perceived" himself to be a danger to officer's safety.

And, while the police raids and police killings are predominantly on the homes of minorities and of the minorities, do I have to wonder why all 4 of the judges who decided this case were white?

I will give these 4 white judges credit - they pulled their trick very cleverly.

The "dog" decision made on December 19, right before Christmas time, when people are united with their families, have some spare time on their hands, will be reading accounts in the media and will most certainly be enraged - enraged and concerned about their pets only, since most people are not literate in the law, and especially in federal civil rights litigation law, and will not see through the scheme.

Count on judges acting in collusion with a governmental defendant and ruling to protect the government.

Have them focus the public on pets, deflect the public from the fact that, through precedential power on the issue of the use of "reasonable" deadly force, this is actually also and primarily about people killed.

About children killed.

About the black little girl killed by a Michigan police on camera.

About a toddler injured by a similar flash-bang grenade assault by police in Georgia.


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