Court Rulings
Navigating the minefield of free speech E-mail
Written by Michael P. Stone and Melanie C. Smith   

It is well settled that a state cannot condition public employment upon a total relinquishment of constitutional rights, such as freedom of expression. At the same time, public employees do not enjoy absolute freedom when it comes to their employment. The seminal case on the issue of public employees' First Amendment rights is Pickering v. Board of Education of Township High School District (1968) 391 U.S. 563. Pickering held that a public employee's speech or expression is constitutionally protected if it deals with a matter of public concern, and the public employer may liable for taking adverse action against the employee in retaliation for the employee's constitutionally protected expression. Pickering created a balancing test, which requires courts to strike "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 568.

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Tough times for Big Easy cops E-mail
Written by APB Staff   

Recently, federal law enforcement officials released findings of a 10-month investigation into the New Orleans Police Department. The Justice Department says their inquiry paints the picture of a "profoundly and alarmingly troubled" law enforcement agency according to an in-depth story in The New York Times. Investigators say the investigation has determined the need for yet another series of "wholesale reforms" at the beleaguered police department. The report describes the NOPD as severely dysfunctional on every level.

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Cuts might be criminal E-mail
Written by Mark Nichols   

What's going on in state and local government as far as outsourcing public sector jobs and trying in vein to balance the budget on the backs of cops and firefighters is nothing short of criminal. Some would say the term "criminal," might be overdoing it. But a grand jury in Sacramento, California disagrees. The Sacramento County grand jury has taken a snapshot of how budget cuts have hurt a wide range of government programs  and produced a report.

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Court: The Cameras Are Now Legally On E-mail
Written by APB Staff   
According to a recent article in the Baltimore Sun, a Harford County, Maryland judge has ruled that state police and prosecutors were wrong to arrest and charge a man for taping his own traffic stop and then posting the recording on the Internet.

Circuit Court Judge Emory A. Plitt Jr.'s ruling helps clarify the state's wiretap law and makes it clear that police officers do not have an expectation of privacy as they perform their duties.

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Now just 18 times more guilty E-mail
Written by Mark Nichols   

For years drug law reformers have been trying to eliminate the disparity in sentences handed down to defendants based on what form of cocaine they were in possession of or distributing. Since 1986, if you were busted for crack, you got a prison sentence 100 times tougher than the guy with the higher-quality powdered version of the same drug. Now that crack isn't the new kid on the block in terms of dangerous drugs, politicians have decided to reduce the sentencing disparity from 100 to one down to 18 to one.

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Sexting kids to get charged as pornographers E-mail
Written by APB Staff   

When you think of child pornographers, the last image that comes to mind is a teenage girl. But as sexting becomes ever more popular with kids, prosecutors are increasingly seeking to charge minors with child pornography. In one of the more recent cases out of Wyoming, a teenage girl who appeared topless in a “sexting” cell phone picture that was shared electronically with her middle-school classmates should face child-pornography charges, a Pennsylvania prosecutor argued before a U.S. appellate court.

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Use-of-force ruling is likely to get a lot of cops injured E-mail
Written by Dennis Slocumb   

The Multnomah County Sheriff’s Office in the Portland, Oregon area recently sent out a memo regarding a resisting case (State v. Oliphant) and its decision’s effect on Oregon law enforcement. In essence, the ruling says: an arrestee may defend himself against a police officer’s use or  imminent use of force if the arrestee believes, as much as a reasonable person in his position would believe, that the officer’s use or imminent use of force exceeds the force reasonably necessary to make the arrest.

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TASER found excessive for bizzare behavior in traffic stop E-mail

Firing a taser can result in liability for excessive force unless the officer faces an immediate threat to himself or the public.  This was the holding of the Ninth Circuit Court of Appeals on December 28, 2009 in the case of Bryan v. McPherson, 2009 WL 5064477.

The result was not surprising, as Officer Brian McPherson of the Coronado Police.  Department fired his taser at a seat-belt violator who engaged in bizarre but non-threatening behavior.  In reaching that predictable outcome, the Court provided useful insight into the examination of factors bearing on excessive force claims that are gradually becoming more clearly defined as the judicial system encounters opportunities to apply the legal test to a series of ever-varying fact patterns.  The Court’s reasoning in the new case appears legally sound, but it is perhaps regrettable that the defendants brought an appeal under facts that gave the Court an easy opportunity to strike a blow against officer safety.

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Justice Delayed Is Justice Denied: A Call For Rethinking The Way Departments Present Criminal Prosecutions of Their Own Members E-mail
March 2, 2005 was another day of work for Riverside County Senior Correctional Deputy Mike Vernal and his fellow deputies assigned to Robert Presley Detention Center (RPDC).

An inmate named Daniel Leonard was apparently angry because he did not have any toilet paper. He yelled threats to the deputies that he was going to "gas" them (you all know that means throwing feces and urine at deputies). It was decided because of the threat, to move Leonard to a different cell, so that if he tried to throw feces and urine, his "window of opportunity" would be minimized because of the location of the cell. Several deputies accompanied Mike Vernal to move Leonard to the other cell. The idea was simple: go in, restrain and cuff Leonard, and move him without incident to the other cell.

Well, Leonard was having none of that. He was aggressive and non-compliant, even after handcuffing, requiring Vernal to "pin" him against the wall and a glass window. This forcible maneuver caused Leonard's face and body to violently contact the wall and glass. This wasn't intended, but neither was it unexpected. Such injury mechanisms frequently are involved when a resistant inmate is forcibly "pinned" against a wall.

The question always comes down to this: unintended injury as a result of a reasonable use of force; or, gratuitous infliction of injury for the purpose of punishment or retaliation for some perceived insult?

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Supreme Court: Procedural Problems Don't Mitigate Crimes E-mail
Written by Mark Nichols   

In another positive decision from the perspective of law enforcement, The Supreme Court has ruled that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant. The 5-to-4 decision was a close one, with the new conservative majority prevailing in their views on the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct. Chief Justice John G. Roberts Jr., writing for the majority, wrote in the decision that the exclusion of evidence should be a last resort and that judges should use a "sliding scale" in deciding whether particular misconduct by the police warranted suppressing the evidence they had found.

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Cops lose on stand-by pay bid E-mail
Written by APB Staff   

In Texas, McAllen police officers are not owed thousands of dollars in back pay for hours they spent on-call, a Hidalgo County jury ruled recently. Forty-four members of the city’s largest police union sued the city back in 2001, claiming officials should have paid them at the same rate as other municipal employees assigned to jobs that required them to come into work at a moment’s notice.

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