Cops With Tasers Set Suicidal Man on Fire

By K. W. Locke

 
    Who causes more harm, a malicious cop, or one who is negligent?

    The murder of George Floyd was so heinous I'm inclined to say that malice results in more harm than negligence, but it's difficult to get accurate data.  Obtaining statistical information about negligent action is even more challenging than quantifying the amount of injury due to malice.

    For example, the Washington Post has begun keeping a database of fatal shootings by police, but I know of no comparable listing of fatalities caused by a mistake or inattention.

    Legally, a victim of police negligence may have less recourse than a victim of police violence.  The doctrine of qualified immunity, created by the United States Supreme Court,  stands in the way.  A recent decision by the U. S. Court of Appeals for the Fifth Circuit illustrates the problem.

    In 2017, a young man in Arlington, Texas called 911 to report that his father was acting erratically and threatening to burn down their house.  Police entered the house and found Gabriel Eduardo Olivas holding a gasoline can, which he then emptied over himself.

    One of the officers warned the other two that firing a Taser could ignite the gasoline.  Then, the other two officers saw that Olivas was holding something that looked like a lighter.

    The two officers fired their Tasers, which set the gasoline on fire, which quickly enveloped Olivas and spread to the house, burning it down.  Olivas' family managed to escape the flames but he died in the hospital two days later.

    Even apart from the one officer's warning, the other two should have known not to fire Tasers at a man doused with gasoline.  The manufacturer's instructions advise against using the weapon in a flammable environment.

    Besides that, there had been previous instances of Tasers igniting things.   Ten years earlier, in San Angelo, Texas, a man had doused himself with gasoline.  A cop with a Taser inadvertently set him on fire.

    In 2014 - about 3 years before Olivas' death - a scientific experiment had demonstrated the ability of a Taser to act as a spark plug, which isn't surprising, considering the 50,000 volts it delivers to the target.

    In 2019, the company which manufacturers Tasers said that it was aware of 12 instances when Tasers had set people on fire.  Eight of those people died.  So, there is a recurring problem.

    But the qualified immunity defense gives officers protection that a negligent individual not employed by government, doesn't have.  To strip an officer of this immunity, a plaintiff must show that he violated a right clearly established by the Constitution or a statute. 

    But the officers who fired their Tasers at Olivas were not breaking a law.  They had a right to use a Taser to prevent harm to others.  And they did not violate a Constitutional right unless the force they had used was excessive.

    The Court noted that an officer’s conduct must be judged “from ther perspective of a reasonable officer on the scene, not with the benefit of 20/20 hindsight.”  Placing themselves in the shoes of the officers, the judges could not think of a better alternative course of action:

If, reviewing the facts in hindsight, it is still not apparent what might have been done differently to achieve a better outcome under these circumstances, then, certainly, we, who are separated from the moment by more than three years, cannot conclude that [the officers] in the exigencies of the moment, acted unreasonably.

     But even if the Court did not know what should have been done, it seems obvious what should not have been done.  Does uncertainty about the best course of action justify a decision to make the worse choice possible?

    The Court’s reasoning illustrates why a person injured by a negligent police officer is in a worse legal position than, say, a person injured by a negligent doctor in private practice.  The Court cited precedent for the principle that “the use of deadly force is constitutional when the subject poses a threat of serious physical harm to the officer or others.”

    Since Olivas was threatening to set himself on fire, he was posing a threat not only to himself but also to the officers and to his family members in the house.  Therefore, the officers did not violate his rights by using deadly force.

    This type of analysis, applied when the issue involves “qualfied immunity,” does not consider the fact that the officers caused precisely the kind of harm they were trying to prevent.  Likewise, it doesn’t consider that the officers clearly should have known better.  The Taser manufacturer had issued a warning, there were past cases and scientific research showing that a Taser would ignite gasoline and, right before they shot, their fellow officer warned them that the Taser would set the gasoline on fire.

    If a private doctor prescribing a drug had ignored a warning label and past instances of the drug causing harm, the injured party could sue for malpractice and be compensated for the injury.  He doesn't enjoyed qualified immunity from suit.
 

    Many now call for the doctrine of qualified immunity to be abolished.  But even if it remains the law, the Supreme Court should tweak it to allow those injured by police negligence to be compensated.

 

SWAT Team Damages Mobile Home

By John  Peccavi

     If a bull got loose in a china shop and it broke a lot of expensive dishes, who pays for the damage?  Probably the person who let the bull loose.

     But what if cops turn into bulls in a china shop while they're chasing a suspect?  Who pays then?

     Well, it's complicated.  To sue, you need at least one legal theory of liability, and more than one if possible.  Sometimes the court will reject one theory but accept another.

     That happened recently in a case decided by the South Dakota Supreme Court.  The plaintiffs, Gareth and Sharla Hamen, lived in a house in a rural county.  They also owned a mobile home, parked about 600 feet away from the house, which they would rent out.

     The Hamens let their grown son Gary live in the trailer when no one was renting it.  The sheriff, along with a detective from the Watertown police, came to the Hamens with warrants for their son's arrest on felony burglary and other charges.

     The Hamens cooperated fully.  While the sheriff was talking to them, their phone rang and Gareth answered.  It was Gary, who said he was at the mobile home.  Gareth did not tell his son that the sheriff and a detective were there but did tell the officers what Gary had said.

     Upon learning that Gary was that close, the lawmen could have walked over to the mobile home but instead they found a vantage point about a half mile away and watched.  They may have decided to take precautions because they believed Gary might be armed.

     During this surveillance, they saw Gary leave the mobile home and then go back in.  The sheriff called in the Watertown SWAT team.  The SWAT team arrived but neither the sheriff nor officers realized that Gary already had slipped out.

     The SWAT team established a perimeter around the mobile home and flew a drone over it but found no sign of Gary.  A SWAT sergeant drove up in an armored vehicle and called to Gary on a loudspeaker.  No answer.

     Two witnesses reported that they had seen Gary.  One of them said Gary had been headed towards the town of Castlewood.  The sheriff requested help from the Highway Patrol and nearby Codington County's special response team. He asked them to try to intercept Gary before he reached Castlewood.

     One officer called Gary's cellphone and he answered.  Sounding out of breath, Gary said he was almost to Minnesota.

     The special response team, led by the Codington County sheriff, arrived with another armored vehicle.  By this time, the officers had quite a bit of information indicating Gary was not in the mobile home.  Two witnesses had spotted him elsewhere, and on the phone he sounded out of breath.  Nonetheless, for some reason, the lawmen decided to enter the mobile home.

     The SWAT team had a procedure:  Make "portholes" in the trailer so they could send in tear gas.  Using an armored vehicle they did, but their "portholes" looked more like great open wounds with the trailer's insulation hanging out like torn flesh. 

    Right after the cops ripped open these holes, they received word that Gary had been spotted walking in a nearby river.  They arrested him and never had to enter the mutilated mobile home.

    When the county wouldn't pay for the damage, the Hamens sued.  They based their case on 3 different legal theories.

     South Dakota's constitution includes a provision stating that private property "shall not be taken for public use, or damaged, without just compensation."  Similar language appears in the United States Constitution, but without the word "damaged."  So, the South Dakota Constitution provides a property owner greater protection.

     At first glance, it sounds like the Hamens have a good case.  But wait.  There's a catch.

     Courts in many other states have held that when police damage someone's property while trying to apprehend a suspect, that damage isn't taking property "for public use."  If a city used its eminent domain authority to obtain private land for, say, a park, that would be a "taking" for "public use."

     Suppose a crook running away from the cops dashes into a china shop.  The officers follow him in and, while struggling to put the cuffs on him, break $1,000 worth of teacups.  Then they leave.  The cups haven't been put to any use, let alone a public one.

     What would be a public use?  Imagine this weird situation:  The principal of the county's "reform school" for juvenile offenders wants to teach these teenagers good manners by having a tea party, and sends two deputies to the store for more cups.  If such a strange thing ever happened, it would indeed be a "taking for public use."  But breaking the cups while chasing a crook would not.
     
     The South Dakota Supreme Court had a choice.  It could agree with courts in states such as California, Oklahoma and Oregon, and hold that damage which occurred incidentally, while trying to make an arrest, was not a "taking for public use."  Or, it could find that under some circumstances there would be a "taking for public use," as courts in Iowa, Minnesota and Texas had found.

     After considering the specific language in the South Dakota Constitution and its holdings in earlier cases, the Court went with California, Oklahoma and Oregon.  The Hamens lost on that theory.

     But their lawsuit also invoked a federal statute which Congress had enacted right after the Civil War.  It allows suits when state or local officials, acting "under color of law," deny someone a clearly-established legal right.

    The Hamens alleged that the sheriff had violated their Constitutional rights by using "excessive force."  However, this claim was different from the typical "excessive force" claim, which alleges that an officer assaulted and injured someone.

    To overcome the local government's "qualified immunity" defense, the Hamens needed to show that the right not to be subjected to excessive force, was "clearly established" for cases such as theirs.  However, they could not find precedents that persuaded the court, which rejected their argument.

    Fortunately, the Hamens had another legal theory.  They argued that the SWAT team damaged the mobile home while performing an unconstitutional search.  The officers did not have a search warrant and the Hamens had not given permission for them to enter.

    A warrantless, unconsented search is presumptively unconstitutional, but in some circumstances, an officer does not need a search warrant to enter a dwelling.  An officer with an arrest warrant for a particular person can enter that person's residence if the officer has a reasonable belief that the person is inside.

    Did the SWAT team have a reasonable belief that Gary was inside the mobile home?  When the officer telephoned him, he sounded as if he had been running and claimed to be almost to Minnesota.  Two witnesses also reported seeing him.  So, maybe the cops didn't have a reasonable belief that he was in the trailer.

    The South Dakota Supreme Court sent the case back to the trial court to decide whether the officers had a reasonable belief that Gary was inside the trailer.

Another Case

   Alerted by a burglar alarm, police in Greenwood Village, Colorado discovered that an armed fugitive had broken into a private home.

    When they surrounded the house, the fugitive fired at a shot at one of the officers. They tried to send in a tactical team but the fugitive fired some more.

    For five hours the police tried to negotiate with the fugitive but that didn't work.  They tried tear gas.  That also didn't work.

    Finally, after using explosives to blow holes in the house, they apprehended him, but the house was ruined.  The city wouldn't pay for the damage.

    A federal district court held that blowing up the house was not a "taking for public use" and ruled for the city.  So did the 10th Circuit Court of Appeals.

    The Institute for Justice, representing the homeowners, tried unsuccessfully to get the case before the Supreme Court,which denied review. The property owners were stuck with the bill.

    In this case, the officers had acted a lot more reasonably than in the South Dakota case and only went to extreme measures after other methods failed.  But still, should the home owners bear the loss?

    We need to change the law. The so-called Pottery Barn Rule should apply:  If you break it, you own it.

Cops Framed Innocent

Man; Real Killer Free

for 25 Years

By John Peccavi

    Christopher Tapp spent 20 years in an Idaho prison for a June 1996 rape and murder he didn't commit.  Last week, the real killer pleaded guilty to the crimes.

    Brian Dripps told the judge that when he went to the victim's apartment, he had intended to rape her but not kill her.  However, Dripps said, "I was pretty high on alcohol and cocaine."

    Ultimately, DNA evidence linked Dripps to the crime. When confronted with that evidence, Dripps confessed.

    But appallingly, in 1997, after arresting another man for the murder, Idaho Falls police ignored DNA evidence proving his innocence.

    Just 6 days after they arrested 19-year-old Christopher Tapp, the police learned that his DNA did not match that found at the crime scene.  That did not stop them from trying to pin the crime on him.  Nothing stopped them.  Not conscience.  Not law.

    Twenty years later, the Idaho Innocence Project secured Tapp's release from prison.  In July 2019, a court found that he did not commit the crimes and cleared his record.

    Last October, Tapp sued the officers and the city of Idaho Falls.  His lawyers filed a 57-page complaint in federal court, accusing the police of engaging "in a coordinated campaign to wrongfully convict Tapp for Dodge's murder."

    The cops' tactics, as described in the complaint, sound like the methods of a dictatorship's secret police:

In particular, Defendants coercively and abusively interrogated Tapp for about sixty hours, repeatedly threatening him with death, lying to him, and falsely promising him leniency if he told them what they wanted to hear. Defendants also continuously used coercive and  manipulative sham polygraphs on Tapp — not to get to the truth —  but in order to coerce Tapp into giving five distinct, false and fabricated confessions.

    The lawsuit also alleges that the police coerced a teenage girl into falsely testifying that she overheard Tapp confess to the crime.  A drug problem may have made the girl particularly vulnerable to intimidation.  She later admitted that her testimony was false and given only because police threatened her.

    By 2009, so much evidence of Tapp's innocence had surfaced that even the victim's mother was convinced and urging that he be released.  A new DNA testing technique - which ultimately revealed the identity of the true killer - had become available. The Idaho Innocence Project asked the police to send the crime scene specimens to a lab which perform the new analysis, but the police declined.

    Tapp would spend 8 more years in prison before being released.  During that time, his wife died in a car accident.

    Even after release, Tapp had to wait 2 more years before a court found him innocent and cleared his name.

 

Banner photograph of Brian Tapps from Bonneville County (Idaho) jail.  Photo of Angie Dodge from her mother Ms. Carol Dodge.

Cop Shoots Handcuffed Man

By John Peccavi
 
In January 2020, a police officer in Prince George's County, Maryland, put a handcuffed man in his patrol car.  Minutes later, he fired 7 shots, six of them striking the handcuffed victim, William Green, who died.

The officer, Michael Owen, Jr., was charged with second degree murder and other offenses and is being held without bond.  But exactly what happened that night, and why, remains unclear. The officer was not wearing a bodycam.

News reports suggest that Owen may have claimed that there had been a struggle.  However, the Prince George's County police chief said that there was no corroborating evidence.

We know for sure that the victim, William Green, was sitting in the police car with his hands cuffed behind him when shot.

It appears that from 10 to 20 minutes elapsed between the time Owen handcuffed Green and put him in the car, and the time Green was shot.  More information should come out at Owen's trial, now scheduled for March 22 of this year. 

Prince George's County agreed to pay $20 million to the victim's family.

But could the death have been avoided?  A Washington Post article suggests that there were warning signs:

Owen's supervisors were unaware he had sought workers' compensation for psychological difficulties stemming from a fatal shooting early in his career, department officials said, even though Owen was supposed to notify them.  Over the next decade, Owen used force against civilians at least nine times. . .Twice last year, videos taken as Owen was arresting people show him with his hands on their
necks.

Would William Green be alive, and Price George's County $20 million richer, if the police department's supervisors had been. . .supervising?

Banner photograph of handcuffs by Skiddle2003 (Wikimedia Commons).

 

Child Abuse by Police

In Rochester, NY and Aurora, CO

by K. W. Locke

    You probably have heard about police in Rochester, New York, pepper spraying and handcuffing a 9-year-old girl.  But do you know what the police officers' union said about how the cops acted?

    Reason Magazine's Billy Binion reports that the union president defended the cops' actions.  

    Pepper spraying the girl "resulted in no injury to her," Union President Mike Mazzeo said at a news conference.  "Had they had to go and push further and use more force, there's a good chance she could have been hurt worse. It's very difficult to get someone into the back of a police car like that."

      So, let me get this straight.  The cops pepper sprayed and handcuffed a 9-year-old child because otherwise, she might have gotten hurt when they put her in the police car.   

 Sadly, Rochester, New York is not the only place where police have abused children.

A Village of Idiots

    Well, Aurora, Colorado isn't really a village.  About 380,000 people live there.  And obviously, all those people aren't idiots.  You won't find 380,000 idiots in one place, not even at a convention.

    But the people running the city can't be too bright.  For years, the city has been paying large sums of money to settle lawsuit after lawsuit arising from police misconduct.  Yet they keep letting the cops behave in the same way.

    And you have to wonder about the intelligence of some of the police officers, too.

     Consider this incident: A license plate reading device scanned a car bearing a plate with the same number as that of a vehicle reported stolen  It was parked outside a nail salon and the driver, 29-year-old Brittney Gilliam, was talking on a cellphone.  Also in the car were the woman's 6-year-old daughter, her 17-year-old sister, and her two nieces.  One of the nieces was 14, the other 17.

    Sounds like a dangerous group, right?  The cops must have thought so.  They drew their guns as they approached the car and ordered the occupants out.

    They told the women to lie down on the pavement on their stomachs with their hands over their heads.  Then, the cops handcuffed the women and kids, except for the 6-year-old, whose wrists were so tiny the handcuffs wouldn't fit.

    Ms. Gilliam offered to show the officers her car registration.  They weren't interested.

    Does that sound strange?  They were investigating a possibly stolen automobile but did not want to see the car's registration!

    Ms. Gilliam owned the car and was never charged with any crime.  Later, the Aurora police chief apologized publicly for this "horrible" mistake but took the position that the officers had been "following department procedure."  The chief observed that the department should give officers discretion to deviate from the standard procedure "when different scenarios present themselves."

    They didn't have that discretion already?  Were they robots?

    And you have to wonder, what kind of police procedure for investigating a possible car theft would instruct officers to hold women and children at gunpoint and force them to lie on their stomachs on the pavement, but not to check the car registration?

     Wouldn't checking the registration be the first thing to do in any case involving a suspected stolen car?  Checking the registration also might have kept the officers from embarrassing themselves.  They had made a really stupid mistake.

    The license plate number of Ms. Gilliam's SUV did match the plate number of the stolen vehicle, but that vehicle was a motorcycle.  Another slight discrepancy:  The stolen motorcycle was registered in Montana.  Ms. Gilliam's SUV was registered in Colorado.

    Anyone can make a mistake but it takes total incompetence - or racial prejudice - to compound it into an ordeal for two women and 4 girls.  Even after the officers allowed the women and kids to stand up, the cops continued to detain them, two hours total.  

    All Ms. Gilliam and her family had wanted to do that Sunday was go to the nail salon and then get ice cream.

    Ms. Gilliam sued the city and police under a new Colorado statute which curbed the qualified immunity doctrine which shields officers in almost all other states and makes it difficult to hold them accountable.

    If you are wondering about whether the Aurora officers were merely incompetent, or worse, you should read the complaint which Ms. Gilliam filed in court.  It details a long history of police misconduct directed at Blacks and Hispanics.

    In the last 2 decades, the city of Aurora has paid more than 4 million dollars to settle cases brought by victims of police abuse.  So, why didn't city officials see long ago that there was a serious problem which needed immediate correction?  Were they blinded by prejudice or stupidity?

      Besides eliminating the immunity defense, the new Colorado statute gives officers a powerful reason to act lawfully.  In some circumstances, if a victim wins a lawsuit, the cop might have to pay up to $25,000 out of his own pocket.

    The new law also requires officers to intervene if they see another cop breaking the law.

    The Colorado "Law Enforcement Integrity" Act doesn't raise taxes and places little burden on police departments.  It provides a good model for legislators in other states.

    But will lawmakers outside Colorado have the courage to enact similar measures?  Or will they dally while more people, including children, are abused?

Houston Police Squad 15: Licensed to Kill?

 By K. W. Locke

    It's night. You are asleep beside your spouse.

    Without warning, armed men batter in the door. One of them, wielding a shotgun, shoots and kills your dog, who wasn't attacking.

    As you scream, a bullet strikes you. Slowly and painfully, you die. The men kill your spouse, too.

    You hadn't expected to die so young. What did you do to deserve it?

    Nothing.

     You couldn't tell by looking, but the intruders were cops, members of the Houston Police Department's notorious Narcotics Squad 15.  They came armed not only with guns but also a no-knock search warrant authorizing them to break into the home without announcing they were police.

    Now, two of the cops will stand trial for murdering you and your spouse, and 10 other members of Squad 15  have been charged with other felonies.  The FBI also arrested three of them on federal charges.

      The victims of this deadly raid had committed no crimes.   One of them, Dennis Tuttle, a disabled Navy veteran, managed to reach a gun he kept nearby and tried to defend himself and his wife.  Amazingly, before dying he wounded 4 of the intruders.

    Good thing.  If he hadn't, the truth about Squad 15 would have remained hidden, allowing it to continue a 10-year crime spree.

    One of the wounded cops, Gerald Goines, had taken a round in the face and could not speak. Lying in a hospital bed, he answered questions by writing notes.  But his answers were inconsistent, revealing that he had lied on the affidavit he signed to obtain the no-knock search warrant.

    In the affidavit, Goines had sworn that a confidential informant had told him she had purchased drugs from the victims. But at the hospital, when asked to identify the informant, he admitted there was none.

    Goines then claimed he’d purchased the drugs himself. That, too, was a lie. The victims weren't drug dealers and had sold him no drugs.  

    Goines had decided to seek the warrant when given vague hearsay by a woman with long criminal record, but had done nothing to verify the truth of what she said.  Instead of facts, he had filled the affidavit with lies.

    This wasn't the first time.   Last year, the district attorney agreed in court that Goines had lied, and had withheld evidence, in a 2011 case.  An innocent man spent years in prison.  Goines may have done so in other cases as well.

    A grand jury has charged Goines and another officer, Felipe Gallegos, with murder and other members of Squad 15 with tampering with government documents and other offenses.  Goines and Gallegos also face federal charges for violating the victims' civil rights.

    The lethal raid took place on January 28, 2019.  Two years later, the families - Dennis Tuttle and his wife, Rhogena Nicholas - filed separate lawsuits in federal court.

    The civil complaint filed by Nicholas’ relatives pulled no punches.  It began:

Murder, corruption, lies, sex, and perjury – the history of the Houston Police Department, and in particular, the Houston Police Department’s (“HPD”) Narcotics Squad 15, plays out like a scene from Training Day. As approved and encouraged by the leaders of the City of Houston, Squad 15 operated as a criminal organization and tormented Houston residents for years by depriving their rights to privacy, dignity, and safety. This misconduct included (1) a  long list of illegal search warrants obtained by perjury, (2) false statements submitted to cover-up the fraudulent warrants, (3) a sexual relationship between an informant and police officer, (4) improper payments to informants, (5) illegal and unconstitutional invasions of homes, (6) a long-list of illegal arrests and excessive force against Houston citizens, and, ultimately, (7) the murder of Rhogena Nicholas and DennisTuttle.

    Nicholas’ family brought suit under a federal civil rights law enacted after the Civil War in response to violence by the Ku Klux Klan.  The Supreme Court has held that, under this law, a city is not responsible for a police officer’s misconduct unless the plaintiff can prove one of three things.  The plaintiff must show that the officer’s misconduct resulted from following an official policy, a custom, even if unwritten, or that the department had failed to train the officer properly.

    Therefore, the 52-page complaint went into great detail, describing not only how Goines had lied in the affidavit leading up to the raid, but also how Squad 15 had broken the law over and over.

    Of course, this isn’t the only time cops have gone rogue.  This blog will report other instances in future posts.

  Drug War Gives Police the Motive and Means

     A formula for tragedy:  Give just about anyone the motive and the means, and take away consequences.  Add a dab of self-righteousness.  Stir and wait.

    The war on drugs provides a motive and, often, a crusader's zeal.  In the insular, us-against-them culture of police departments, self-righteousness can grow like a fungus.

    A no-knock warrant provides the means.

    So, you see the pattern over and over.  And all over.  Late last month, the Supreme Court of the State of Washington issued an opinion which began:

    On January 5, 2011, at 9:45 a.m., eight Tacoma police officers broke open the door of a Federal Way apartment with a battering ram.  They had a search warrant, and they expected to find Matthew Logstrom, a young drug dealer living in a somewhat unkempt apartment.  Instead, they awakened Kathleen Mancini:  an older nurse living in a well-kept home, who had been sleeping after working the night shift.  The police nevertheless handcuffed Mancini and took her, without shoes and wearing only a nightgown, outside while they searched.

    A confidential informant had given an officer vague information about drug dealing.  Usually, before seeking a warrant, the detective would have done surveillance to make sure he had the right apartment, and then would have had an informant make a controlled drug buy.  But he skipped those steps and sought a warrant.

    He also skipped going through the prosecutor's office and went directly to a judge.

    Fortunately, no one died.  This time, the cops "only" handcuffed a woman and made her stand outside in her nightgown.  In January.

    Compared to being killed, that's small potatoes.  But, compared to being killed, just about anything is small potatoes.

    The best part of the story is that the Washington state legislature already had passed a law repealing municipal sovereign immunity.  

    So, the woman sued the police.  And won.

What Can We Do?

    Other states should likewise repeal municipal sovereign immunity, but that's a hard sell in the legislature.  What else can be done?

    One good step would be to require police always to go to a prosecutor when seeking a search warrant.  Another step forward would be limit what judges can issue no-knock warrants.  The lowest-level courts - municipal courts and other courts not "of record" - should not have that authority.  It should be given only to courts of record, and of general jurisdiction.