Texas police officer Brad Miller, who killed 19-year-old Christian Taylor, hired by Arlington, TX police on 3rd try.

Texas police officer Brad Miller, who killed 19-year-old Christian Taylor, hired by Arlington, TX police on 3rd try.
http://news.yahoo.com/texas-officer-killed-teen-hired-police-3rd-try-002856920.html

ARLINGTON, Texas (AP) — A white police officer fired after he fatally shot a black college football player had applied twice to the Arlington Police Department before being hired on his third try, according to personnel records released by the department on Friday.

Brad Miller applied to the department in 2011 but wasn’t hired before his application expired a year later. He applied again but failed his medical examination and was told not to reapply for six months. Miller followed a fitness regime, applied exactly six months later and was accepted as a 48-year-old recruit.

Police Chief Will Johnson fired Miller four days after Miller confronted 19-year-old Christian Taylor alone inside a car showroom on Aug. 7. Miller fatally shot the unarmed Angelo State football player, who disobeyed Miller’s instructions and advanced toward him.

Miller had a series of marketing jobs in the technology sector until layoffs convinced him that he needed a career change and he decided to train to be a hair stylist in 2005. However, in an essay he wrote for his application, Miller wrote that it became “evident that, as fun as cosmetology is, the gap between dedication and talent is just a bit too wide to make it a financially viable career for me.”

Working two jobs, as a hair stylist and as a bagger at a fast-food restaurant, he applied to the Arlington Police Department at the suggestion of one of its officers. In a preliminary interview, Miller understood that he was an advanced age to want to start a law enforcement career, but that his years and work experiences lent him a maturity that would be an asset.

In a background interview, a person Miller used as a reference said the most stressful situation Miller was seen in was his two failed tries at becoming a police officer before succeeding on the third.

Once his application was accepted, Miller scored well in the applicant-screening interview and passed the physical agility and skills tests. A police officer with whom Miller worked out at a fitness center told an investigator doing a background check that Miller “would be a leader to the younger recruits in the academy.”

Early on Aug. 7, Miller and his supervising officer responded to the call of a suspected burglary at a car dealership. Johnson later said that while officers were establishing a perimeter around the dealership showroom, Miller pursued Taylor through the broken glass doors of the dealership showroom without telling his supervising officer.

Miller confronted Taylor and ordered him to get down on the ground, Johnson said. Taylor did not comply. Instead, he began “actively advancing toward Officer Miller,” Johnson said.

Johnson said Miller’s field training officer, who had followed him, drew his Taser. The training officer heard a pop of what he thought was Miller’s Taser, but Miller had fired his service weapon at Taylor, who is believed to have been 7 to 10 feet away from the officer, Johnson said. When Taylor kept approaching, Miller fired his gun three more times, killing Taylor.

Internal and criminal investigations are still underway, police Sgt. Paul Rodriguez said Friday.

Judge to Newspaper: Don’t Publish Any Article in Which a Lawyer ‘Is Accused of Dishonesty, Fraud or Deceit’ in Connection With His Discipline by the State Supreme Court.

Judge to Newspaper: Don’t Publish Any Article in Which a Lawyer ‘Is Accused of Dishonesty, Fraud or Deceit’ in Connection With His Discipline by the State Supreme Court

By Eugene Volokh September 1, 2015

The Volokh Conspiracy|opinion

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/01/judge-to-newspaper-dont-publish-any-article-in-which-a-lawyer-is-accused-of-dishonesty-fraud-or-deceit-in-connection-with-his-discipline-by-the-state-supreme-court/

Here’s the text of an order issued by Louisiana state court Judge Curtis Sigur last Tuesday, in Groner v. Wick Communications Co.:

THE STATE OF LOUISIANA TO:
WILL CHAPMAN, PUBLISHER **PERSONALLY**
THE DAILY IBERIAN

YOU ARE HEREBY COMMANDED, enjoined, and restrained, in the name of the State of Louisiana and of the Civil District Court for the Parish of Iberia, in accordance with a temporary restraining order, this day issued in above entitled numbered cause from;
RESTRAINING WICK COMMUNICAT[IONS] COMPANY D/B/A THE DAILY IBERIAN AND WWW.IBERIANET.COM FROM PUBLISHING OR POSTING ON ITS WEBSITE ANY ARTICLE OR STORY IN WHICH PLAINTIFF DAVID W. GRONER IS ACCUSED OF DISHONESTY, FRAUD OR DECEIT IN CONNECTION WITH A LOUISIANA SUPREME COURT DECISION OR SIMILAR MATTER.

This all apparently stemmed from a reader comment on a Daily Iberian article that said,

I read the paper where David Groner is representing Deputy Sanders Butler in the sexual harassment. The only thing you need to know is that Butler helped Groner in his failed bid for State Senator against Fred Mills and Simone Champagne. That’s when the truth came out about Groner having a reputation for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation.

The comment linked to a 2008 Louisiana Supreme Court decision imposing discipline on Mr. Groner:

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in a conflict of interest and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that David W. Groner, Louisiana Bar Roll number 6349, be and he hereby is suspended from the practice of law for six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

I corresponded with Mr. Groner, and he sent me a copy of the joint memorandum supporting the agreed-on discipline, which says, in relevant part:

Rule 8.4(c) states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. By issuing payment to the [clients] with the notation “Full and Final Settlement” and obtaining a Release Agreement containing a release for all claims against [Groner], the actions of [Groner] suggest an attempt to settle the [clients’] malpractice claims, without their being fully advised as to the nature of the agreement and the potential ramifications associated with their executing the agreement. At a minimum, there was a misrepresentation as to the true nature of the January 18, 2007 transaction between the [clients], Ms. Defelice [Groner’s associate] and David Groner, PLC.

You can decide for yourself whether the comment on the New Iberian site was fair, based on the disciplinary proceeding (read the whole joint memorandum, which is just four pages long, for more context). But it’s clear that the order barring a newspaper from publishing anything in which Mr. Groner was “accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision” was unconstitutionally overbroad. That’s so given the facts of this case. And it’s so, even setting aside these facts, under the general principle that alleged defamation can’t be enjoined at least until a full trial on the merits in which it’s proved that a particular statement was false and defamatory (and maybe not even then).

In any event, the judge’s order led to a good deal of public commentary, both from the Daily Iberian and from other sources, such as Ken White (Popehat); and the Daily Iberian fought the order in court (and I suspect would have fought in higher courts if necessary). And yesterday Mr. Groner dismissed the case, which means the order has now been vacated. Here is what he wrote to me over the weekend, in response to an e-mail from me asking for his side of the story:

The case will be dismissed Monday am. So by the time you write about it the case will be over and the TRO lifted, by my own choice.

It has been blown way out of proportion, which I admit is my own fault. I have never been found guilty of fraud, dishonesty, or deceit so I asked them not to publish anonymous posting to that effect. The end result is classic Streisand effect, I made it worse by trying to correct it. I am fishing at a camp in the marsh and have no access to backup or I would send you the stipulation that imposed a sanction against me for a technical violation considered misrepresentation. [Shortly afterwards, Mr. Groner did send me the stipulation, which I quote and link to above. —EV] Unfortunately for me the rule is to sanction actions of dishonesty, fraud, deceit or misrepresentation so the haters always pick up on the fraud, dishonesty and deceit and ignore the stipulation that led to the order which outlined a case for misrepresentation. For many that is splitting hairs, but for me it meant a lot. I forgot that because I am a lawyer it is open season and there are many that would love nothing more than to see me crash and burn.

I have now realized that I cannot control what is said on the internet and will do my best to return to anonymity.

I’m glad that the order has now been dissolved, and that Barbra Streisand continues to be doing her job. (To be sure, there is a bad version of the Streisand effect, in which even quite legitimate libel lawsuits are deterred by the worry that the publicity will only amplify the original false accusation. But here, given the clear unconstitutionality of the order, it seems to me that the Streisand effect has helped do good.)

UPDATE: Embarrassing error — the first line of the post originally said the judge’s name was Michael Thibodeaux, but that was the clerk of court. The judge himself was Curtis Sigur, and I’ve updated the post accordingly. My apologies to Mr. Thibodeaux, who was just doing his job.

Does Louisiana Lawyer David Groner Have the Right to Have His Mistakes Forgotten?

by Paul Alan Levy

Tuesday, September 01, 2015

http://pubcit.typepad.com/clpblog/2015/09/does-louisiana-lawyer-david-groner-have-the-right-to-have-his-mistakes-forgotten.html

Louisiana lawyer David Groner has made a few mistakes.  Which was the most serious?

David Groner’s Misconduct Toward Clients

At some point time before January 18, 2007, one of Groner’s associates filed a lawsuit on behalf of some clients in the wrong venue; the defendants moved to dismiss. Groner’s firm nevertheless paid a small amount of money to the clients, but, apparently, left the clients believing that it was the defendants rather than Groner’s firm that were making the payments, leading the clients away from thinking about the possibility that they might have a claim for malpractice.   The clients ultimately learned the truth, then complained to the Bar; the upshot was a joint petition for discipline, signed both by Groner and the Office oi Disciplinary Counsel, calling for a deferred six-month suspension from the Bar because of what the joint petition called “at a minimum, . . .  a misrepresentation as to the true nature of the January 18 transaction.”  The state Supreme Court characterized its ruling as having stemmed from an “investigation into allegations that respondent engaged in a conflict of interest and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Groner later told blogger Eugene Volokh that “dishonesty, fraud, deceit, or misrepresentation” is simply one of the categories into which the Louisiana Supreme Court places disciplinary actions, and hence that the use of this phrase did not mean that he engaged in any “dishonesty, fraud or deceit”; he felt that the only fair characterization of the conduct for which he was disciplined was “misrepresentation.”

When Groner ran for public office in 2011, his consent discipline was raised as an issue against him.

Groner’s Misuse of His Position as an Officer of the Court

Then, in late August 2015, when the Daily Iberian, a local newspaper, published a story about a case that Groner was handling, an anonymous commenter sniped at Groner by referring to “the truth [having come out] about Groner having a reputation for engaging in conduct involving dishonesty, fraud, deceit and misrepresentation.”   Groner sued the Daily Iberian and, based on an ex parte verified complaint that he did not send to the defendant, he obtained a temporary restraining order forbidding the newspaper from “publishing or posting . . . any article or story in which plaintiff . . . Groner is accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter.”

The order was baseless, and in several different ways.   The complaint reveals that the only claim alleged in the lawsuit was defamation, but wholly apart from whether the facts described in the disciplinary memorandum could fairly be characterized as fraud and dishonesty as well as misrepresentation, under 47 U.S.C. § 230 the newspaper itself cannot be held liable, or enjoined from carrying, alleged defamation by a commenter.  Moreover, although the complaint alleged that the Doe wrote “false and misleading postings” despite being “well aware of the truth,” but it did allege that the newspaper carried the comment with actual malice.  Because Groner had run for office only four years before, he may well have been a public figure.  And a temporary injunction is an impermissible prior restraint, strictly forbidden in defamation cases by the Supreme Court’s decision in Organization for a Better Austin v. Keefe: “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.”  A last flaw going to the merits:  Even outside the context of the preliminary injunction context, Louisiana is one of the states that still follow the maxim that equity will not enjoin a libel.  And procedurally, even if the issuance of a TRO without notice is acceptable under Louisiana law (and a motion for reconsideration by the newspaper argues that it was not), the Supreme Court’s decision in Carroll v. President and Commissioners of Princess Anne forbids preliminary relief against without a detailed showing of the inability to provide notice to the defendant.   But Groner made no showing of inability to give notice; quite to the contrary, the complaint alleged that Groner had been communicating with the newspaper’s publisher who refused to removed the critical posting because he deemed it “fair comment.”

The complaint also suffered from some more technical defects.  It never squarely alleged that the comment over which he was suing is false.  Instead, it alleged that Groner had provided the newspaper with “documentation that the plaintiff . . . was found not guilty of conduct that involved dishonesty, fraud or deceit.”  Under the best evidence rule, the document itself would have been the proper way to prove its contents, and this case shows the wisdom of that rule, especially in an ex parte context – assuming that the “documentation” was the joint petition for discipline, that document does not find Groner “not guilty” of anything; to the contrary, it says that he was guilty of “at a minimum . . . misrepresentation.”  Moreover, Groner did not verify the complaint on personal knowledge, but only “to the best of [his] knowledge, information and belief.”  An experienced judge, indeed any experienced lawyer, should have detected these problems.

But Groner did not present his request for relief to an experienced judge.   Rather, he was at pains to tell me that issuance of the TRO was not the judge’s fault, because the judge had only recently been elected to the bench (a fact confirmed for me by the newspaper defendant).  Although it is awfully decent of Groner to take personal responsibility and deflect blame from the local judge, I don’t excuse the judge that easily – judges are supposed to stand up for the constitutional rights of defendants, and they ought to know better that to issue injunctions against speech without at least taking a look at the law books.  But in many ways, Groner’s defense of the judge only makes Groner look worse: did he assume that he could get away suppressing criticism given how inexperienced the judge was?

Groner Fails to Suppress the Criticism

Once it was informed that a TRO had been issued against it, the newspaper removed the comment in question, but it published an article about the lawsuit, and the story was picked up by other local news media as well as by Ken White at Popehat.  But it was, it appears, the news that Eugene Volokh was preparing a post for his Washington Post based blog that persuaded Groner that the Streisand Effect  might end up having an even more deleterious effect on his reputation than the comment from some anonymous Daily Iberian reader; accordingly, he told Volokh by email that he was going to dismiss the lawsuit.

I found this part of his email, which Volokh included in his blog post about the case, particularly telling:

“The end result is classic Streisand effect, I made it worse by trying to correct it. . . . I have now realized that I cannot control what is said on the internet and will do my best to return to anonymity.”

It is refreshing that Groner now takes full responsibility for his mistake, and for the public consequences of that mistake. Groner generously responded to my questions about the case, as he apparently responded to Volokh, and he willingly sent me a copy of his complaint (as he sent the underlying bar disciplinary consent motion to Volokh).  Credit where credit is due.

How Long Before Groner Can Hide His Discipline from Future Clients?

In the short run, at least, Groner has run afoul of the Streisand effect, and he knows it.  But how long will that continue?  Can Groner return to practical anonymity?

You would think that prospective clients of a lawyer would want to have ready access to facts about his having misled clients, just as clients might want to have access to facts about his failing to pay his taxes for a long enough time that his house was foreclosed to pay his debts.   But Spanish lawyer Mario Costeja González persuaded the European Court of Justice to grant a petition that he filed in 2009, arguing that it was unfair for Google to bring his 1998 financial troubles to the attention of his potential clients who might run a search based on his name, because the forced sale had been concluded years before and was no longer “relevant.”   That court, applying the “right to be forgotten” to Google on the theory that Google is a “data controller” under the European Union’s data directive, ordered  Google not to return any results about the financial problems to searches for information about González.

Subsequent rulings in Europe seek to extend this ruling to all of Google, Google.com as well as the local Google databases; European officials are also trying to prevent Google from returning reports about removal orders to searches for the names of people who have sought removal orders.

Most lawyers agree that such right to be forgotten rulings could not extend to the United States, consistent with the First Amendment, but there are some privacy advocates such as Marc Rotenberg at EPIC who are campaigning forcefully for such a right; and even some well-known free speech advocates, such as Marc Randazza, have lent their names to that cause.  Randazza has, indeed, joined the Board of Directors of the “Association Against Internet Defamation, Denigration and Harassment.”

If the right to be forgotten applied in the United States, could David Groner have succeeded in hiding his discipline from Google search engine users who conduct a search for information about him, if he had only waited a year or two to initiate the request?  How long after his 2008 discipline for his January 2007 misconduct will that misconduct no longer be legally “relevant”?   And who decides when published speech about that subject is no longer relevant, and hence should be hidden from search engine users?

And is it just the underlying discipline that becomes irrelevant, or will the discussion of his professional discipline in the 2011 election also be irrelevant?  And what about the characterization of that discipline in the August 2015 comment on the Daily Iberian, and the discussions of that discipline in blogs such as Popehat and the Volokh Conspiracy?  Must that be forgotten along with the discipline?   To what extent does Groner’s attempt to use litigation to suppress commentary by readers of a newspaper disqualify him from having his misdeeds forgotten?

Moving Targets – U.S. police have fatally shot 30 people in moving vehicles this year, despite federal guidelines advising them not to.

Moving Targets

US police have fatally shot 30 people in moving vehicles this year, despite federal guidelines advising them not to. Why have police departments pulled the trigger on drivers rather than reform?
Jon Swaine, Jamiles Lartey and Oliver Laughland Illustration by Simon Prades

Tuesday 1 September 2015 09.42 EDT

http://www.theguardian.com/us-news/2015/sep/01/moving-targets-police-shootings-vehicles-the-counted

Tommy Maness had no choice but to shoot, they said.

Called to tackle a supposed late-night fight at a roadside diner in Alexander City, Alabama, the 34-year-old police corporal saw Emerson Crayton Jr, a young black man, hurry into his Ford SUV in the restaurant’s parking lot and start the engine.

Maness knocked on the driver’s window and told Crayton to get out. But Crayton, 21, reversed out of his space. Then he turned his wheels toward Maness, police chief Willie Robinson alleged, and “tried to run over the officer”. Maness “could not get out of the way of the vehicle”, so instead he fired his Glock pistol into it at least three times. Crayton, who was unarmed, died from a shot to the head.

According to an Alabama state bureau of investigations file on the shooting obtained by the Guardian, however, things unfolded differently.

Maness acknowledged to investigators that, in fact, he “sidestepped the truck” as he shot. A recording from his body camera showed that despite the SUV continuing to move forward after the driver was shot, Maness was not struck. Actually, the vehicle swung sharply away from him as it brushed by and headed to the highway.

“It’s a straight cover-up,” Crayton’s father, Emerson Sr, said at his home in nearby Dadeville. “Fact is, the officer did get out the way.” Asked about the video footage in an interview in his office, Robinson repeated: “People see what they want to see.”

Emerson Jr did not have a criminal record, according to his family’s attorneys. He did have a daughter, Germani, who is now three years old. “He didn’t need to die,” said his father.

The US Department of Justice, prominent international policing experts and most major police departments across the US agree: police officers should not fire their guns into moving cars. The shots are widely viewed as ineffective for stopping oncoming vehicles, and the risks to innocent parties are seen as overwhelming.

But a Guardian investigation has found US police have carried out at least 30 fatal shootings into moving vehicles they claimed were being used as weapons so far in 2015. More than a quarter of those killed were black men, a group that according to the US Census Bureau makes up just 6% of the driving-age American population.

In all cases, officers said the vehicle posed a threat either to their own lives, to those of police colleagues, or to bystanders. In almost all incidents, however, their decisions to shoot appeared to run counter to federal guidance instructing officers to open fire only if a driver presents a separate deadly threat, such as a gun. None of those killed were accused of pointing firearms at police, and in only three cases did police appear to be aware of a gun being inside the vehicle.

Like thousands of other law enforcement agencies around the US that have declined to reform their internal policies in line with DoJ standards, Alexander City has a rulebook that says officers may fire into moving vehicles “as the ultimate measure of self-defense” when “the suspect is using deadly force”. Implicit is that the vehicle itself may be considered the deadly weapon.

Rulebooks obtained by the Guardian from 20 of the departments whose officers have fired deadly shots into moving vehicles in 2015 showed that a majority had similarly lax rules. Even departments with ostensibly more restrictive policies consistently provided a caveat ultimately privileging the officer’s judgment call.

Even if Crayton did intend to drive his SUV over Maness, the officer nonetheless successfully deployed an alternative measure of self-defense as well as shooting: he stepped out of the way. A growing number of police departments have, over recent years, amended their regulations to reflect the logic that officers should position themselves away from a moving vehicle’s path rather than attack.

In several of the 2015 shootings, officers shot people in moving vehicles from the side or back. Crayton’s autopsy showed he was shot twice on the right side of his body, which Maness faced as Crayton passed. One of Maness’s bullets even entered Crayton’s front passenger-side window, travelled the width of the vehicle, then exited through the driver-side window opposite, ending up lodged in a tree.

At the same time, detailed accounts of the vehicle shootings given publicly by authorities have been called into question. There was never any fight at the Huddle House diner that night, Alexander City police now admit, according to the investigation file, which was obtained from a source involved in the case after state authorities blocked several public records requests over the past year. In his final seconds, Crayton had snatched his food order and walked out of the restaurant after allegedly making expletive-laden threats towards staff.

The restaurant’s white staff told investigators Crayton drove at Maness; several African American witnesses swore under oath he did not. “You’re going down for that,” one can be heard shouting at Maness on the bodycam recording.

After considering the case briefly last May, a grand jury in Tallapoosa County declined to charge Maness with a crime. “He was faced with immediate harm or immediate action, and he is trained to take action,” said E Paul Jones, the district attorney, who presented the case to jurors after working in alliance with Maness’s police department for years. While one of the officers responsible for the 2015 shootings has been charged with wrongdoing, three have so far had their actions ruled justified by authorities.

TOP-237: The Golden Rule, Born of a Racially Charged Shooting

A shift in thinking on whether police officers should shoot bullets into moving cars can be traced back more than 40 years to a sweltering August night on New York City’s Staten Island.

In the summer of 1972, Ricky Bodden was an 11-year-old African American boy living in the New Brighton neighborhood’s Jersey Street projects – the same gritty public housing complex where Eric Garner lived at the time of his death from an NYPD officer’s now notorious chokehold on a sidewalk, four decades later.

On the evening of 15 August, Ricky and two 14-year-old friends were spotted by officers joyriding in a stolen Pontiac. Ricky was in the back. When a patrol car began following, the boys led the police on a high-speed chase. The pursuit came to an end after patrolman Timothy Murphy, who was waiting for the Pontiac at the side of the street up ahead, shot six times at the car, striking twice. Two teenage boys sitting on a nearby stoop were shot in the legs.

Ricky and his two friends jumped from the vehicle and tried to flee. But patrolman Frank Ortolano also opened fire with his pistol, fatally hitting Ricky in the back.

Front-page reports on the case ring familiar today.

Ortolano said he shot because one of the 14-year-olds turned “and reached toward his pocket, as if armed”, the Staten Island Advance reported. The officer insisted Ricky had the misfortune to run into the line of fire; onlookers said it seemed deliberate. A headline quoting his family read: “Would it have happened if he were white?” Police promptly leaked his juvenile criminal record. A grand jury declined to bring charges and chiefs promised internal reprimands.

Some 200 people in the neighborhood rioted over the young boy’s death, throwing bottles and rocks at police cruisers, during the latest in a series of racially charged uproars over police brutality in the city.

Police commissioner Patrick Murphy responded the very next day with new restrictions on the use of deadly force that were to fundamentally alter his officers’ rulebook. Under regulation TOP-237, NYPD officers were no longer allowed to shoot into moving vehicles; nor were they to shoot at so-called “fleeing felons” unless the suspect’s escape posed a threat of death or serious injury to others.

Thirteen years after New York City’s policy change, this same standard on fleeing felons was applied across the entire country by the US Supreme Court’s ruling in the landmark case of Tennessee v Garner. But while many other departments, especially larger metropolitan agencies, gradually followed New York’s lead on forbidding firing into moving cars, no similar nationwide rule or law has emerged.

Chuck Wexler, the executive director of the Police Executive Research Forum, has been the most vocal and consistent proponent of ridding American policing of the practice. He said no NYPD officer had died in more than four decades as a result of the city’s rule change.

Wexler’s organization has advised major police departments on introducing shooting bans into their rulebooks. He returns again and again to the illogical notion, as he puts it, that an officer facing down a direct and rapidly advancing car would save himself by firing and incapacitating the person at the steering wheel. “If the driver is shot, the vehicle becomes a totally unguided threat,” he said.

“It doesn’t make any sense,” Wexler, a former senior officer in the Boston police department, said in an interview. “You can’t stop a moving vehicle. You shouldn’t shoot at moving vehicles. Period. No exceptions.” Wexler also stressed the risks that ricocheted or missed shots could strike innocent bystanders.

Dr. Donald Jenkins, the trauma director at the Mayo Clinic in Rochester, Minnesota, said shooting could be effective – but only in stopping a vehicle that was, say, 100 yards away. “If you’re four feet away, probably not,” said Jenkins. “You’re going to be hit by that vehicle.”

Jenkins said if a driver were struck in the chest, the likely delay in their loss of consciousness could allow him to remain a threat. A driver being struck in the head with a police-caliber firearm, meanwhile, would likely suffer near-instant death. “When one dies, the body goes completely limp,” he said. As the pressure on the accelerator diminished, the car would likely slow down, but probably wouldn’t stop until crashing into something.

In nine of the 30 fatal shootings so far this year, vehicles shot at were reported to have made contact with an officer. None of the officers was reported to have been seriously injured.

The death of a driver could also have the opposite effect, experts said, with similarly dangerous consequences. This was illustrated vividly in July when University of Cincinnati police officer Ray Tensing fatally shot Samuel DuBose in the head through his driver’s window after his vehicle appeared to begin creeping away from a traffic stop over a missing front license plate.

“Presuming the driver does not have his foot on the accelerator but has his knee bent and his foot near the pedal, when he’s shot and rendered limp, those muscles give up,” Jenkins said. “The foot would drop to its natural position”, and could put weight on the accelerator.

Footage from Tensing’s body camera showed that immediately after the officer fired, DuBose’s vehicle indeed accelerated forward, eventually halting when it crashed into a utility pole farther down the street. Professor Lori Fridell, a criminologist at the University of South Florida, said the incident highlighted the “potential jeopardy” to which bystanders could be exposed when police shoot the driver of a moving vehicle – even one that is just rolling away. “Pedestrians could easily have been struck,” she said. Tensing has been charged with murder and pleaded not guilty.

A few years after Ricky Bodden’s death, professor James Fyfe, a criminologist at American University who had served as an NYPD lieutenant, found the average number of officers in the city firing their guns dropped by 30% in the three years after rule TOP-237’s introduction. While total homicides in the city remained roughly static, the number of people killed by police fell by 37%. And perhaps most surprising of all, the number of officers killed in the line of duty halved. Between 1972 and 2010, the number of incidents each year involving an NYPD officer firing his or her gun dropped from 944 to 92.

Academic research on the issue since then has been scant. But reports from departments have left analysts convinced. “This is one policy which for 40 years has resulted in a reduction in use of force incidents and injuries to officers, so it’s a win-win situation,” said Wexler. “It really makes sense because officers need guidance. They need discretion but they also need guidance, and parameters.”

“If an officer puts himself in a position where they have no alternative but to use deadly force, they will use deadly force,” said Wexler. “What you really want them to do is think ‘I should not stand in front of this car. I should not put myself in a position where I have no alternative’.”

Sending teenagers to do a police officer’s job

Deputies Jason Robinson and Christopher Rudolph had an alternative.

Responding to reports of a burglary in Huntley, Montana, in January, the two Yellowstone County deputies spotted a purple Ford Explorer matching the description of one reported stolen in nearby Billings. They began to follow, but the snow became overwhelming. They were stuck.

So, according to a recently filed civil lawsuit, they flagged down two local 14-year-olds and a 16-year-old who had stepped off a bus nearby. The teenagers said the stolen car would soon meet a dead end. After helping to free the snowbound police vehicle, they were deputized to work as spotters.

Having exchanged cellphone numbers with the youngsters, the deputies allegedly sent them up White Buffalo Road and told them to call when they saw the stolen car returning. The deputies meanwhile headed downhill and parked in a narrowly ploughed section of road, effectively establishing a road block with foot-high snow banks on each side.

The teenagers called: the car was on its way. Robinson and Rudolph stepped out of the cruiser armed respectively with an AR15 rifle and a shotgun. As the Ford approached, they fired. The car swerved out of control and came to a stop in one of the snow banks. But Robinson and Rudolph continued to shoot.

Behind the wheel, Loren Simpson slumped, lifeless. Simpson, 28, had been struck several times. Nathan Wagner, an attorney for his family, accused Robinson and Rudolph of employing tactics more suited to a war zone.

“Why are you treating a burglary situation like we’re talking about a checkpoint in the Green Zone in Iraq – where you’re deploying weapons to prevent a vehicle from driving down the road? It just doesn’t make sense,” he said.

“And if you felt this person was such a danger that you needed to have your weapons deployed before you even made contact with him, why are you sending teenage kids up to do your investigation for you?”

The officers insisted they were forced to shoot. “They ordered him to stop,” said a document filed the next day by Yellowstone County detective Shane Bancroft, but “the vehicle continued toward the deputies”. The officers continued firing even as the car sat nose-down in a ditch with its back wheels turning because they thought “the suspect was continuing to reverse the car into them”, according to the police.

Simpson was accused of stealing DVDs and prescription drugs during a burglary. Court filings said a rifle with a single unfired round was found inside the vehicle, but there was no suggestion the 28-year-old had it in his hands during the incident, nor that he was reported as armed during the alleged robbery. In six other cases so far this year, firearms were later discovered inside vehicles following fatal shootings in which the vehicle had been described as the threat.

The following month, both Yellowstone deputies resigned from their jobs, giving no reason why they quit.

A month after that, however, a police review board not only cleared them of wrongdoing but “praised the deputies in their sound judgment”. Two members of the five-man panel were fellow Yellowstone deputies. Two were also local law enforcement officers. The fifth was a prominent local attorney. The sheriff’s department rejected requests from the Guardian for the inquiry report and footage of the incident they say was recorded by the police vehicle’s dashboard camera, pending a coroner’s inquiry.

If that material is ever released, according to Wagner, it will demonstrate his client posed no serious threat and the officers’ actions were “totally unjustified”.

The sheriff’s department’s internal rulebook tells deputies they may shoot at a moving vehicle “if necessary” to protect themselves against serious injury. Sheriff Mike Linder conceded the fatal shooting may result in a change of this policy. “We’ll determine that after the inquest,” he said.

‘She wasn’t threatening their lives’

Of 20 use of force policies obtained by the Guardian under open records laws from agencies involved in the 30 fatal moving-vehicle shootings in 2015, Yellowstone County is alone in choosing to articulate when its officers can and should shoot at vehicles, without clearly stating when they can’t and why they shouldn’t.

Even when departments have regulations advising officers not to shoot, they almost always offer one significant caveat, which privileges an officer’s judgment call. In practice, these exceptions have eclipsed the rule, from California to Indiana to Georgia. The reasonableness of such calls is well known as difficult to challenge, and usually is not – whether by police chiefs, prosecutors, grand juries or trial juries.

Monongalia County, West Virginia, tells its deputies not to fire into vehicles except as “the ultimate measure of self-defense or defense of another or when the suspect is using deadly force and life is imminently threatened”.

In June this year, a Monongalia deputy fatally shot Christie Cathers from behind as she sat at the wheel of her silver Dodge sedan in Morgantown. Cathers, a 45-year-old mother of three whose Twitter page declared “LIFE IS GOOD!”, had just driven into another deputy’s vehicle at the end of a brief chase. One witness told the local Dominion Post newspaper the impact of Cathers’ vehicle was “not real hard, but hard enough for me to hear it”.

Seven other fatal shootings into cars so far in 2015 happened after vehicles made contact with another vehicle, including police cruisers.

A preliminary examination of Cathers’s body found she was shot repeatedly from behind her car, according to John Benedict, her father. One bullet went into the back of her head and killed her, he said in an interview. State officials declined to confirm the findings but photographs from the scene show much of the rear windshield of the Dodge was smashed out.

Cathers may have been going through “some kind of breakdown”, Benedict said. She was pursued by police after nearby residents called 911 to report she was acting strangely and waving a pocket knife. Initial news reports stating she had shot at officers from her car were not corrected until days later by authorities, who said she did not have a gun. Police alleged Cathers had tried to run down a deputy as she fled the first scene.

“It all just does not fit who my daughter was,” said Benedict. “She was five-foot-two and 120lbs, if that. She didn’t have a gun. She wasn’t threatening their lives.”

The case is being considered by the county’s prosecuting attorney, Marcia Ashdown, who works consistently alongside the sheriff’s department on the same side of other prosecutions. An internal review found two deputies involved in the case did not violate any of the department’s policies, so they returned to work.

Monongalia County’s rulebook is typical of those at police departments that released their regulations, a majority of which were located away from major cities. The sheriff’s office for Sonoma County in California, for instance, calls shooting into moving vehicles “not generally an effective tactic”, but states plainly this is not intended as a prohibition. Sonoma deputies fatally shot Karen Janks in April when she allegedly reversed her vehicle toward them after a chase.

That same month in Georgia, Lowndes County sheriff’s deputies fatally shot Dexter Bethea when he tried to flee and drove in their direction. The sheriff’s office bans shooting at cars except in loosely defined “unusual or exigent circumstances”. In July a grand jury ruled the shooting justified, but recommended the department invest in body cameras, which could “help show more clearly what occurred” in the future.

Professor Geoffrey Alpert of the University of South Carolina, a criminologist and national authority on police use of force, said the country’s vast federalized system of law enforcement had left thousands of smaller departments similarly unreconstructed. “We just don’t have the kind of national structure as in Australia or England,” he said in an interview.

“We have 17,000 to 18,000 police departments in this country, many of which are incredibly small and badly managed,” said Alpert. “Often the chief doesn’t have the leadership abilities to tell his officers what’s right, and still wants to be one of the boys and liked rather than respected.”

Among the handful of major city departments behind killings in moving vehicles so far this year, the Indianapolis metropolitan police department’s rules stand out as unusually loose. The department, which had once banned the practice, revised their policy in 2012, making it less restrictive. In June, an IMPD officer’s bullet struck 34-year-old Joshua Dyer in the head while he sat in the passenger seat of a vehicle that police said driver Matthew Cole was trying to use as a weapon.

Cole had fled a traffic stop and led officers on a brief chase before losing control of the car in a yard. The vehicle came to a stop. Officer Timothy Elliott approached on the driver’s side, and officer Derik Harper approached on the passenger’s side.

Cole then put the car into reverse. The officers said he nearly hit Elliott, then cut the wheel right and nearly hit Harper. Elliott had his weapon drawn and did not fire; Harper, from the passenger’s side, did. Elliott reported hearing one single “pop”, and Dyer was dead. Despite Cole being unharmed, neither officer was struck by the vehicle, which continued to reverse, nearly striking a house and taking down several fences before coming to a halt.

Authorities charged Cole with weapon and drug possession crimes in addition to resisting arrest. In that count, Cole is alleged to have “operated a vehicle in such a manner that it caused the death of Joshua Dyer”. Six weeks later IMPD officers shot and killed 15-year-old Andre Green when they said the stolen vehicle he was driving advanced toward them.

The IMPD’s policy suggests that officers attempt to move out of the way of moving vehicles but states this is “not intended to restrict an officer’s right to use deadly force directed at the operator of a vehicle when it is reasonably perceived that the vehicle is being used as a weapon”.

‘Step out of the way and we’ll get them later’

Such regulations are out of step with contemporary policing theory. And while the introduction of stricter parameters has been incremental, the institutional weight behind their further spread is now considerable.

The US Department of Justice has in recent years consistently advised or instructed departments to ban shooting at moving vehicles. After the DoJ’s Community Oriented Policing Services (Cops) office looked into the Las Vegas police department in 2012 after a series of controversial shootings, it brought in a new policy specifying “the imminent threat must be by means other than the vehicle itself”.

The same standard was included when the Cops office concluded a similar report on the Philadelphia police department earlier this year. And it was thrust upon Cleveland when the justice department’s civil rights division concluded an investigation there in 2014.

Mary Brandenberger, a justice department spokeswoman for the Cops office, said the recommendations were not merely “guidance” specific to individual departments needing special measures, but rather best practices that are applicable to law enforcement agencies nationwide.

The idea has spread thanks to the International Association of Chiefs of Police. In 1989, the Virginia-based union for senior officers developed a model policy on the issue that has fed rulebooks in major US cities and beyond. Its big idea – that shooting is only justified if a driver poses a “deadly force by means other than the vehicle” – essentially swept away the justification of car-as-weapon in most cases.

In a paper explaining the policy, the IACP cites findings that service handguns are “generally ineffective in attempts to disable a motor vehicle”, that vehicles will “almost certainly proceed out of control” if the driver is killed, that it is likely the officer will miss, and that it is possible innocent bystanders will be struck with errant bullets.

“Most conventional police firearms, in fact, will normally fail to penetrate automobile bodies, or steel-belted automobile tires that are in motion, and frequently do not penetrate auto safety glass,” according to the IACP report authors.

Police departments around the country have subscribed to the tighter rule, typically after controversial incidents in their jurisdictions led to demands for local reform.

In Boston, police commissioner Paul Evans pushed it through in September 2002 after officers fatally shot Eveline Barros Cepeda, 25, who was travelling in the back of a car police said had driven through a red light, refused to stop, and hit an officer. The shooting was nonetheless ruled justified by the Suffolk County district attorney.

The rule change led to a bitter internal dispute in which the Boston Police Patrolmen’s Association unsuccessfully attempted to oust Evans. Yet “it’s worked out well,” Evans, whose brother William is the current Boston police commissioner, said in an interview. “I haven’t seen many, if any, instances of such shootings since then.” The Boston police department declined several requests for official data on the rule change’s impact.

Alpert, the University of South Carolina criminologist, said Boston was a turning point. “Everyone stood up and took notice,” he said. “That was kind of a milestone.” Cities such as Los Angeles; Orlando and Miami in Florida; Detroit; Houston; and Cincinnati did likewise, typically after their own controversial killings in cars.

The march has continued apace in recent years. Few major American cities now permit police shootings unless the driver presents a separate threat. Cleveland implemented the rule last year amid outrage over the fatal shootings of two African Americans in a Chevrolet Malibu in 2012. After driving away from a traffic stop over a turn-light violation, Timothy Russell, 43, and Malissa Williams, 30, were shot at 137 times by more than a dozen officers after false reports that they were armed.

The alternative to shooting proposed by the IACP and dozens of other policing experts is simple: get out of the way. “An officer threatened by an oncoming vehicle shall move out of its path instead of discharging a firearm at it or any of its occupants,” the organization’s model policy states.

Evans, the former Boston police commissioner, recalled telling his rank-and-file to think about going home to their spouses and children before placing themselves in the path of a vehicle. “My message was ‘Step out the way and we’ll get them later’,” said Evans. “With all our technology and forensic capability, we will get them. So don’t put your life at risk.”

‘Looming’ and ‘inattentional blindness’: in defense of the shootings

A select group of law enforcement thinkers, however, say these reformists are the ones endangering officers’ lives. Professor Maria Haberfeld, chairperson of the John Jay college of criminal justice at the City University of New York, said that by banning them outright from shooting into moving vehicles, police chiefs were “literally throwing officers under the bus”.

Haberfeld, a former sergeant in a counter-terrorist unit of the Israel Defense Forces and an officer in Israel’s national police force, blamed “political correctness” for hindering clear-eyed analyses of the threats faced by rank-and-file officers on the street. “Police are sworn to serve and protect, but not to lose their lives,” she said.

“There are situations where officers have to be given credit and their assessment of the situation should allow them to use deadly force,” she said. “The message being given to officers is ‘I cannot use my discretion, because if I do my career is over’.”

Haberfeld and like minds such as Thomas Aveni, executive director of the Police Policy Studies Council, insist that requiring a driver to be armed as well as advancing in his or her vehicle is too high a threshold to be safe. Aveni said departments were placing restrictions on officers “in haste”.

“Vehicles can get used as weapons,” said Aveni. “In Las Vegas, in New York, there have been cases where people have purposely driven into crowds and collided with dozens of people. People do also try to run down police officers. It happens, and police sometimes need to act.”

Both emphasized that better and more frequent training should encourage officers to have the presence of mind in high-stress situations to move before reaching for their service weapon. “Otherwise they revert to very basic human instinct,” said Haberfeld. Neither she nor Avenie could, however, point to supporting studies or specific examples of incidents of an officer working under a restrictive policy who might have begun shooting but instead held fire, and was injured or killed.

Instead, underpinning such counterarguments is in most cases the work of a single controversial psychologist.

Dr. Bill Lewinski, the founder and director of the Force Science Institute, a company that trains officers on using force, is perhaps America’s most strident critic of efforts to restrict shootings into moving vehicles.

Lewinski, who in a series of emails declined to be interviewed, used a recent post on his website to declare departments that prohibit shooting into vehicles “increase the risk of injury and death to officers” and were “driven by political pressure”, basing decisions “more on speculation than on solid behavioral science”.

His chief defense is the principle of “looming”, a psychological phenomenon that occurs when an object travels head-on towards an individual at speed. This results in a perception that the object is increasing exponentially in size, making the person feel it is moving faster toward them than it really is.

“The targeted officer may falsely sense that he or she has no time to leap clear, and start shooting instead,” said a 2013 article co-authored by Lewinski, adding witnesses who observed an incident from the side would not experience looming and might accuse an officer of lying.

His theory played a critical role in a pivotal case in the history of the debate, when Bill Bratton, then the police chief of Los Angeles, moved to reform the policy at California’s largest police department.

After a string of controversial cases, the final straw for Bratton was the death of Devin Brown, an unarmed African American 13-year-old, who had stolen a Toyota Camry in February 2005. Devin was shot eight times by officer Steven Garcia when he reversed the car toward officers. Investigators found he was travelling at 1 mph.

Instructions came down from Bratton that LAPD officers were now permitted to fire on moving vehicles only when drivers threatened them “with deadly force by other means than the vehicle”.

While the district attorney’s office said there was insufficient evidence for a prosecution, the city paid Devin’s family $1.5m to settle a lawsuit. Garcia was sharply reprimanded by a civilian oversight panel, which found his claim to have felt his life was in danger not “objectively reasonable” and that the shooting “violated department rules and warrants discipline”.

The ability to discipline Garcia fell, however, to the department’s board of rights. In considering the case, the board leaned heavily on the analysis of one expert witness in particular: Lewinski.

He argued “the noise, the movement, the angles, the tight proximity and tunnel vision on the oncoming vehicle all would have combined to make the car appear to Garcia to be even closer, faster and more ominous than it was”. Stressing Lewinski “clarified” key concepts for them, the board exonerated Garcia of wrongdoing.

Experts who analyzed his writings told the Guardian that while Lewinski’s understanding of looming was broadly correct, his linking it to an officer’s impulse to employ force rather than move out of the way was simply not established in peer-reviewed psychological research.

Force Science says it has not carried out any research of its own on looming, instead citing an academic literature review. The Guardian shared this review with professor Patricia Delucia, a psychologist at Texas Tech University and one of the country’s foremost experts in “time to contact” psychological research. Delucia concluded there was no evidence to support the argument that the looming effect would automatically induce an impulse for “fight” over “flight” – in other words, drawing a gun and shooting rather than getting out of the way.

Lewinski has since gone on to testify in more than 200 trials, typically in defense of law enforcement officers who employed force, often to deadly effect. In one such trial in June 2011, Lewinski appeared as part of the defense of two officers being sued in a civil rights lawsuit following a shooting into a vehicle.

Police alleged Alex Morton, of Guntersville, Alabama, drove his car directly at officer Tim Nugent, forcing Nugent’s partner, officer Jeremy Kirkwood, to fire. Morton, 21, was shot seven times and left paralyzed from the middle of his chest down.

But Morton recovered enough to tell his side of the story. He testified he had been sitting by his car looking over a nearby lake as the officers pulled up back in January 2010. He went to his vehicle, placed the car into drive, and rolled forward, he said. As he noticed Kirkwood approach from the side with his gun drawn, he stopped the vehicle and raised his hands in the air. Then Kirkwood began to shoot.

Even Nugent conceded he had not seen Morton’s car move forward. Kirkwood, though, insisted the vehicle only stopped after he shot. And Lewinski was there to provide a explanation to court for the discrepancy between the officers’ accounts.

He attributed the mismatch to “inattentional blindness”, a psychological phenomenon in which the brain is so transfixed on one detail that it blocks out all others. Throughout much of his written analysis of the incident, Lewinski compared what Kirkwood and Nugent experienced that day to a professional sports match – a device to which he frequently returns in his work.

“It is almost impossible to intently and simultaneously focus on both the offense and the defense at the same time even when both are simultaneously presented on a TV screen in front of us,” Lewinski wrote.

“Subsequently it is not unusual that officer Kirkwood’s perception and memory is was [sic] very different than officer Nugent especially during the shooting. This is a classical example of the limitation of human perception and memory by professionals operating under high stress encounter,” Lewinski wrote, having cited his earlier research into the phenomenon.

Dr. Lisa Fournier, an associate professor of psychology at Washington State University, reviewed Lewinski’s research on the effects of inattentional blindness on police officers. Commissioned by the US Department of Justice in 2011, she concluded the research was “not valid or reliable” due to flaws in his methodology and conclusions based “on manipulations that were not incorporated in the research design”.

A jury considering the shooting into the moving-vehicle-that-wasn’t found in favor of Kirkwood. Lewinski’s theories had prevailed. As in many other cases, the officer’s version of events would stand.

A 23-year-old shot from behind

Nicholas Thomas knew how that felt.

Thomas was trying to get on the right track, according to Atlanta attorney Holly Hughes. The 23-year-old left her a message in March, hours before he was shot and killed by Smyrna police sergeant Kenneth Owens. Hughes said Thomas called her office to deal with a six-month-old warrant he was facing for a probation violation.

“Everything in that voicemail told me this young man was trying to make it right,” said Hughes.

But he was also caught up in old habits. The previous evening, when Thomas was spotted in his car by Smyrna officer Mark Cole, he did what he always did – he fled.

Cole found an active warrant for Thomas out of a neighboring county and began following him to make a stop. But Thomas drove evasively, forcing Cole to make a series of U-turns, and eventually lose sight of Thomas as he sped away.

The next morning Thomas placed that call to Hughes, the attorney, to find out how to get the warrant dealt with. But before Hughes could call back, a large multijurisdictional team of officers from Cobb County and Smyrna police departments had arrived at the service center in nearby Vinings where Thomas was working as a mechanic, and surrounded the building.

Thomas tried again to escape. Surveillance video showed Thomas getting into a white Maserati brought in for service, and drive back and forth around the building several times.

Although the location was outside their jurisdiction, it was Smyrna officers including Cole, the officer left frustrated the night before, who chased Thomas’s vehicle on foot as he traced the same futile loop.

On Thomas’s final pass around the building, Owens ran towards the Maserati, ending up behind it. Cole ran toward the vehicle’s front. The encounter was just out of the security camera’s sight. According to police, Thomas drove at Cole and his police dog, so Owens fired three shots into the car.

In a later interview with state investigators, however, Cole said the car was already “passing” him when he heard the shots. Both bullets struck Thomas from behind.

Thomas’s car rolled onward, the officers and dog avoiding being hit. It came to a stop against an embankment. Officers ordered Thomas out but he did not comply, likely because he was already dead. He was found to be unarmed.

In July a grand jury declined to charge Owens with a crime. At a press conference after the decision, prosecutors told those present to “watch him almost strike police officers” as they showed a clip of surveillance video in which Thomas drove past an officer who stepped to his side to ensure he was well clear of the vehicle as it rounded a corner.

It turned out Thomas had in 2013 been charged with aggravated assault for “driving and accelerating his motor vehicle at” a Kennesaw State University police officer after fleeing a traffic stop. Thomas pleaded guilty but under Georgia’s “first-time offenders act”, meaning the court “imposed no judgment of guilt”.

The plea was nonetheless reported after the fatal March 2015 shooting as a “conviction” – and proof Thomas had a record of threatening cops with his car.

Court documents from the 2013 case state, however, that the officer placed his patrol car in Thomas’s path to slow him, and Thomas “swerved away at the last minute” to avoid hitting it. This, to the Georgia courts, was “aggravated assault”.

That time there were no shots fired. Another Kennesaw officer spun Thomas around by nudging the rear bumper of his car and skillfully used his cruiser to pin Thomas’s car against a wall. Thomas, uninjured, left with his hands up and was arrested.

As he was handcuffed, he made a speech. “This is not my first rodeo, and I hope y’all know that,” Thomas said. “Y’all hit my vehicle! You could have killed me! You could have risked my life! That’s why we run! We scared of y’all! Y’all can take our life!”

Interactive design by Kenan Davis, Rich Harris and Kenton Powell. Additional reporting by Ciara McCarthy.

What Happens If You Take The Fifth in a Civil Case?

What Happens If You Take The Fifth in a Civil Case?

By Eugene Volokh | The Volokh Conspiracy

August 28, 2015

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/28/what-happens-if-you-take-the-fifth-in-a-civil-case/

I’ve blogged before about National Abortion Federation v. Center for Medical Progress, one of the cases involving the center’s surreptitious video recording campaign. (See also this post.) Now there’s a twist, involving the Fifth Amendment and not just the First:

Defense counsel advises the Court that all individual defendants plan to invoke their Fifth
Amendment privilege to refrain from self-incrimination.

What happens if you invoke the privilege against self-incrimination in a civil case?

  1. You can do it, and you won’t be held in contempt for failing to testify. Though the provision says that no person “shall be compelled in any criminal case to be a witness against himself,” the Supreme Court has made clear that this extends to compelling a person to testify in a civil case, when that compelled testimony could later be used against him in a criminal case. See, e.g., McCarthy v. Arndstein (1924):

The Government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.

  1. But a decision to take the Fifth may be used against a party in a civil case (if the party is the witness who refuses to testify, or is closely enough connected to the witness). In a criminal case, the judge and the prosecutor may not tell a jury “that it may draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case.” But that’s not so in a civil case, see, e.g., Baxter v. Palmigiano (1976):

[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.

So if the Center for Medical Progress people refuse to testify, the court may well give this whatever “evidentiary value … [is] warranted by the facts surrounding his case.”

  1. Finally, a witness who takes the Fifth as to some matters can’t then try to provide testimony on the same subject that is helpful to the side that the witness might want to support. If the Center for Medical Progress people take the Fifth as to what they did, they thus likely wouldn’t be able to testify about facts (if there are such facts) that might help them show that certain conversations weren’t private, that the confidentiality agreements they signed might be invalid, or whatever else they want to prove. And if they do testify about certain matters, their testifying would waive their Fifth Amendment privilege, at least as to those matters. See, e.g., Mitchell v. United States (1999):

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination.” …

The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry…. [A] contrary rule “would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.” It would … “make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.”

Feds Fighting to Keep Cash Seized From Person Never Charged With Crime.

Feds Fighting to Keep Cash Seized From Person Never Charged With Crime

By Joseph Weber

Published August 29, 2015FoxNews.com

http://www.foxnews.com/politics/2015/08/29/feds-fighting-to-keep-cash-seized-from-person-never-charged-with-crime/

Federal prosecutors are battling in court to keep $167,000 in cash seized in a 2013 traffic stop, despite the motorist never being charged in the incident and the Obama administration clamped down this spring on such asset seizures and forfeitures.

The case — which highlights the ongoing concerns about the government unjustly seizing money and property — began when a Nevada state trooper pulled over the motorist on a cross-country trip to California.

The trooper stopped Hawaii resident Straughn Gorman’s motor-home in January 2013 for allegedly going too slow along Interstate 80.

According to court documents, Gorman was allowed to proceed without a citation despite the trooper suspecting he was hiding cash.

The trooper said he couldn’t inspect the vehicle because he would have needed a canine unit and for the dog to detect drugs, which would have created enough probable cause to get a search warrant.

However, no canine unit was available so the trooper released Gorman but not before requesting the county sheriff’s office stop him again — about 50 minutes later and this time with a drug-sniffing dog.

No drugs were found during the second stop, in which Gorman was pulled over for two alleged traffic violation. But his vehicle, computer, cellphone and the cash, stashed throughout the vehicle, were seized.

In June, a federal judge in Nevada ordered Gorman’s cash be returned.

In his ruling, District Judge Larry Hicks cited Gorman’s “prolonged detention” for the alleged traffic violations and criticized federal authorities for failing to disclose that the first officer requested the second stop.

“The second stop was not based on independent, reasonable suspicion sufficient to justify the prolonged investigation,” wrote Hicks, a Bush administration appointee. “The two stops were for minor traffic violations, and they both were extended beyond the legitimate purposes for such traffic stops.”

Hicks also said in his ruling the second stop never would have happened if the first officer had not relayed information about the first stop, which included a vehicle description, suspicion about concealed cash and that a “canine sniff” would likely be needed to get probable cause for a search.

The federal government earlier this month appealed Hicks’ ruling in the 9th Circuit Court, in San Francisco, considered among the most liberal in the country.

Federal attorneys did not submit a reason for the appeal in their one-paragraph request, according to The Daily Signal, which first reported the request.

The court is expected to also decide whether Gorman should be reimbursed $153,000 in legal fees, which federal lawyers don’t want to pay.

The first court proceeding is scheduled for November 19.

The Justice Department earlier this year issued a series of directives to reform and restrict its policies on asset seizures and forfeitures, amid the complaints about government abuse and overreach.

“We are keenly aware of concerns raised about certain seizures and forfeiture practices,” the agency told the Senate Judiciary Committee in April. “The department takes seriously any and all allegations of perceived or actual abuse.”

The first of the changes were announced in January by then-Attorney General Eric Holder, starting with forfeitures.

Holder said federal agencies could no longer take assets seized by state and local law enforcement agencies, except for those “directly related to public safety concerns” including firearms, ammunition, explosives and property associated with child pornography.

Among the valuables the agencies can no longer take are cash and vehicles.

In March, Holder announced changes to banking laws that allow money to be seized from people who make deposits below specific amounts to intentionally keep the transaction from being reported to federal authorities — a scheme known as “structuring.”

Holder said authorities would now focus on “the most serious offenses” and essentially that money could be seized only after the defendant is charge with a crime or found to have been engaged in a crime beyond structuring, according to document the Justice Department gave FoxNews.com this week.

The minimum-deposit laws were enacted to detect and nab drug dealers, terrorists and other money-launders and criminals trying to conceal their enterprise and cash. And they were enacted to create a money stream to provide financial compensation to crime victims.

The IRS seized more than $242 million in roughly 2,500 alleged structuring violations, from 2005 to 2012. However, no other criminal activity was alleged in roughly 33 percent of the cases, according to the Institute of Justice, which worked on a more recent case in North Carolina.

Last year, the IRS took $107,000 from Carolina small-business owner Lyndon McLellan after he made a series of deposits under $10,000.

McLellan owns a convenience store-restaurant-gas station. And many of his transactions are in cash.

The federal government offered to return half of McLellan’s cash, a standard move by federal officials who know many people cannot afford a lengthy court battle and would rather settle.

McLellan got back all of the money but wasn’t reimbursed roughly $22,000 in legal and accounting fees, Institute attorney Robert Everett Johnson said Tuesday.

“We’re pleased that Lyndon’s money has been returned,” Johnson said. “That the federal government returned the money validates he didn’t do anything wrong.”

However, Johnson expresses dismay that his client is still battling to recoup his costs and interest on the seized money, to which he appear entitled under the 2000 Civil Asset Forfeiture Reform Act.

“We thing the federal government should make him whole,” he said. “It simply cannot pretend that nothing happened.”

Autopsy Indicates Officer Stephen Rankin Shot Unarmed Teen William Chapman From Distance

Autopsy Indicates Officer Shot Unarmed Teen William Chapman From Distance

Eighteen-year-old was not close enough to officer Stephen Rankin to pose a threat, says family lawyer, as report shows he was subsequently handcuffed

Jon Swaine in New York | @jonswaine

Monday 24 August 2015 07.15 EDT

http://www.theguardian.com/us-news/2015/aug/24/william-chapman-autopsy-stephen-rankin-police-shooting-virginia

An unarmed black 18-year-old was fatally shot in the face by a police officer from several feet away during their confrontation outside a supermarket in Virginia earlier this year, the findings of his autopsy indicate.

The typical signs of a close- or body-contact shooting were not found around the bullet wounds William Chapman sustained in the head and chest when he was killed by Officer Stephen Rankin in the parking lot of a Walmart in Portsmouth on 22 April. Chapman was the second unarmed man to be shot dead by Rankin.

“There is no evidence of close-range fire to visual inspection,” wrote Wendy Gunther, an assistant chief medical examiner for Virginia. Gunther said a definitive ruling would be made by the state’s department of forensic sciences.

A copy of Gunther’s report was obtained by the Guardian from a source who was not authorized to release it to the media, along with a separate toxicology report from state forensic investigators that said Chapman’s blood showed no traces of alcohol or drugs.

Rankin and Chapman engaged in a physical struggle after Rankin tried to arrest the 18-year-old on suspicion of shoplifting from the Walmart, according to police. Witnesses said Chapman broke free and then stepped back towards the officer aggressively before being shot twice. A decision on whether Rankin will be prosecuted is expected to be made by authorities in the coming days.

An attorney for Chapman’s family, who said he was preparing a civil lawsuit against Rankin even before state prosecutors make their decision, said the physical evidence suggested Chapman had not been near enough to Rankin to pose a threat.

“If an unarmed person is not in close proximity to the police officer, not in his so-called ‘wingspan’, then to say the officer shooting and killing that person is pretty excessive may be the greatest understatement of the year,” said attorney Jon Michael Babineau.

Gunther’s report said “no fouling or stippling” – the sooty residue and speckled gunpowder burns typically left by a close- or intermediate-range gunshot – were found on the skin around either of Chapman’s wounds, nor on the clothing where the shot to his chest entered.

Dr Judy Melinek, a prominent California-based forensic pathologist who frequently testifies as an expert witness, said in an email after reviewing the autopsy report that unless some other object created an obstruction between Rankin and Chapman, “the absence of soot or stippling means it is a distant range gunshot wound”. Melinek classes a “distant” shot as being from more than 30 inches away.

Dr David Fowler, the chief medical examiner for neighboring Maryland, said in a brief telephone interview on Friday: “These are fairly small particles, and while they may be coming out at the same speed as the bullet, they have very little mass and an odd shape, so they lose velocity very rapidly.”

Fowler added: “Typically the fragments of unburnt gunpowder and soot travel out somewhere in the region up to 12in for a handgun, maximum, maybe 18in for a very powerful handgun.”

The Virginia autopsy was carried out the day after Chapman’s death. The report also said Chapman’s hands were cuffed behind his back. Babineau, the attorney for Chapman’s family, said scuff-like abrasions on the 18-year-old’s face and chest indicated he was rolled on to his front, cuffed, then rolled back again, after being fatally shot. Chapman was 5ft 8in tall and weighed about 185lbs.

Police and store managers still have not said if Chapman was found to have stolen anything from Walmart. The autopsy report lists clothes and shoes as his only personal effects, including a pair of trousers with the pockets turned inside out.

His family said he frequently browsed the store. Babineau said that through his own inquiries and interviews with witnesses, he had found no indication Chapman was carrying stolen merchandise, and that he appeared to have turned out the pockets to show they were empty.

This may be answered conclusively by surveillance footage recorded inside the store that was collected by investigators. The shooting itself, which took place just inside the perimeter of the large parking lot, close to the street, is understood not to have been captured on camera.

An inquiry into the shooting has been completed by Virginia state police and passed to Stephanie Morales, the Virginia commonwealth’s attorney for Portsmouth. The prosecutor also commissioned “additional investigative work” and tests by the state department of forensic science, according to Tamara Shewmake, a spokeswoman for the prosecutor.

The spokeswoman said earlier this week that following a delay, Morales expected to have received all the forensic files by Friday 21 August.

“Once all findings have been turned over to the commonwealth’s attorney, there will be a review and final prosecutorial determination,” Shewmake said.

Sources familiar with the inquiry said the week-long delay was due to Morales commissioning an advanced type of forensic analysis that had never before been completed by Virginia state officials.

The sources said Morales, who is 31 and newly elected earlier this year, had no intention of passing the case to an outside jurisdiction or special prosecutor, and that she had indicated she would present the case to a grand jury within Portsmouth, which is an independent city, if she decided to prosecute Rankin.

Portsmouth police and Virginia state police still decline to confirm Rankin was the officer who shot Chapman. His identity was confirmed to the Guardian by Sean McGowan, the executive director of the Virginia Police Benevolent Association, Rankin’s union.

Once Rankin’s name was published, McGowan denied he had confirmed it, then suggested he had not been authorized to confirm it, then said he would never again speak to a reporter from the newspaper. McGowan has refused to identify Rankin’s attorney or an alternative representative.

Rankin, 36, is a veteran of the US navy who earned a grey belt in the the Marine Corps martial arts programme, which requires the ability to “stop an aggressor’s attack” with hand-to-hand combat.

The officer was placed on administrative leave after shooting Chapman. In April 2011 he fatally shot Kirill Denyakin, a Kazakh cook, less than three miles from the site of Chapman’s death. Denyakin was shot 11 times by Rankin, who was responding to a 911 call about the 26-year-old aggressively banging at the door of a building where he was staying.

Rankin said he shot Denyakin because the cook, who was drunk, charged at him while reaching into the waistband of his jeans. The officer said he feared Denyakin would pull out a weapon. No weapon was found.

A grand jury declined to indict Rankin on criminal charges and a jury in a $22m civil lawsuit brought by Denyakin’s family found in Rankin’s favor.

Among 250 posts defending himself on a local newspaper website, Rankin wrote: “22 mil wont buy your boy back,” adding that most Americans could not hope to earn that in an entire career, “let alone a habitual drunk working as a hotel cook”.

The standfirst of this story was amended on 24 August 2015 to make clearer that William Chapman was handcuffed after he was shot.

William Chapman: Unarmed 18-Year-Old Shot Dead by Officer Who Killed Before

Black teenager accused of shoplifting at Walmart killed in April by white officer Stephen Rankin, who had been suspended for shooting another unarmed man

Jon Swaine in Portsmouth, Virginia | @jonswaine

Monday 1 June 2015 08.42 EDT

http://www.theguardian.com/us-news/2015/jun/01/william-chapman-unarmed-shot-dead

An unarmed black 18-year-old accused of shoplifting was killed by a police officer in Virginia who had been barred from patrolling city streets for almost three years after fatally shooting another unarmed man.

William Chapman was shot dead by Stephen Rankin, a white Portsmouth police officer, during a struggle in a Walmart parking lot. Rankin, 35, a US navy veteran trained in martial arts, was once disciplined for posting violent remarks and Nazi images online.

Chapman’s family likened his death to that of Michael Brown, another unarmed black 18-year-old who was suspected of a theft and shot dead following a struggle with a white officer. Brown’s death last year in Ferguson unleashed nationwide protests.

But they noted with disappointment that Chapman’s killing in April barely registered among activists and the media. “I feel alone,” said Chapman’s mother, Sallie. “Because my son is gone and because nobody is trying to help me understand why.”

The Virginia chief medical examiner’s office said in a statement only that the cause of Chapman’s death was “gunshot wounds of face and chest”. Chapman’s mother said his hands were also wounded in the encounter, a claim supported by photographs of his body reviewed by the Guardian.

Chiefs only allowed Rankin to return to frontline policing in March last year, almost three years after he killed an unarmed 26-year-old Kazakh immigrant in February 2011. Rankin was later found to have insulted the man and his family in other online postings.

A sergeant in the department at the time told the Guardian that senior commanders were formally warned by one of Rankin’s supervisors weeks before his first fatal shooting that he was “dangerous” and likely to cause someone harm.

Asked twice during a telephone interview why Rankin had been allowed to continue policing the public, Portsmouth’s police chief, Edward Hargis, repeated: “That’s a personnel matter and I can’t comment.” He added: “I’m not going to comment on what people may say, allegation-wise.”

Police refused to say whether Chapman was actually found to have stolen anything. They will still not confirm it was Rankin who shot him. However, the head of Rankin’s professional association confirmed to the Guardian he was indeed the officer involved.

Rankin fired twice after Chapman resisted an arrest at the edge of the superstore parking lot on the morning of 22 April and a struggle ensued, according to witnesses. The officer was responding to a complaint by store staff of a “suspected shoplifting”.

A funeral service was held for Chapman last month but his body has not yet been buried because his family is unable to afford the $3,600 fee, relatives said.

His shooting is being investigated by the Virginia state police, which is also carrying out an inquiry into the fatal shooting by another Portsmouth officer a month earlier of Walter Brown, a 29-year-old black man who fled a stop by drugs police.

Sergeant Michelle Anaya, a state police spokeswoman, declined to discuss any details of what happened in Chapman’s shooting. “That investigation is currently ongoing and that information is not available at this time for release,” she said in an email.

Chapman’s death was publicly overshadowed by that of 25-year-old Freddie Gray in Baltimore, Maryland, three days earlier. He is one of three unarmed black teenagers killed by law enforcement in the US so far this year, according to an ongoing count by the Guardian.

Brandon Jones, also 18, was killed by a police officer in Cleveland, Ohio, in March after a struggle when he was caught robbing a grocery store, according to authorities. Earlier that month, Tony Robinson, 19, was shot dead by an officer looking into a disturbance in Madison, Wisconsin. Last month state prosecutors ruled the shooting was justified.

Chapman’s cousin, Earl Lewis, welcomed The Counted, the Guardian’s project to monitor all killings by police and law enforcement. He said increased transparency could reduce unnecessary or unjustified fatalities. “Better data would put a check on how some cities and their officers do business,” said Lewis.

Construction workers who saw the confrontation between Chapman and Rankin told local television reporters that the 18-year-old appeared to break free from an attempt by the officer to handcuff him against a parked car.

One, Leroy Woodman, told reporters at the scene Chapman was shot because he “took a couple steps towards the cop like he was ready to fight”. A colleague of Woodman’s, Paul Akey, said Chapman “came at” Rankin after the Taser was knocked from Rankin’s hand and the officer stepped back. Akey said he believed Rankin’s actions were justified.

“I know my son,” said Sallie Chapman. “He would have been saying ‘Why are doing this? I didn’t do anything.’ I know what his words would have been.”

Woodman and Akey, who have since been interviewed by police investigators, declined or ignored several requests for comment when reached by telephone and online messages.

Police have not given any explanation to Chapman’s mother, she said, and Walmart management called the police to help remove her when she travelled to the store demanding information about what he may have stolen and what happened.

“My son is gone, and I just want to know why,” said Chapman. “Why can’t I see the Walmart surveillance video? I’m his mother.”

The police did not actively inform Chapman that her son had died. After being unable to reach him on 22 April, and hearing media reports of an 18-year-old killed at their local Walmart, she called 911. When she gave William’s name, she was placed on hold and eventually told a detective would visit her home. The detective told her William was dead.

Recordings of live news bulletins from the scene on the day of the incident show that Chapman’s body was still on the ground of the parking lot five hours after he was killed. “It hurt,” said Lewis. “It was as if a dog had been hit in the street, and eventually, later on, someone found the owner and told them to come pick it up.”

Portsmouth and state police have declined to confirm that Rankin was the officer responsible for the shooting. Sean McGowan, the executive director of the Virginia division of the Police Benevolent Association (PBA), told the Guardian Rankin was the officer involved and the group had helped him obtain legal representation.

“Any other questions you have, I would need to refer you to his attorney,” said McGowan, who then declined to identify Rankin’s attorney. The officer’s legal team did not respond to requests for comment that McGowan said he had conveyed to them.

State police investigators are expected to pass their completed inquiry on the shooting to Stephanie Morales, Virginia’s commonwealth attorney, who will then decide whether or not to put the case to a grand jury for a possible criminal prosecution.

The deaths of Chapman and Brown were the Portsmouth department’s first fatalities since Rankin’s April 2011 shooting of Kirill Denyakin, a Kazakh cook. Denyakin was shot 11 times by Rankin, who was responding to a 911 call about the 26-year-old aggressively banging at the door of a building where he was staying.

Rankin claimed he shot because Denyakin, who was drunk, charged at him while reaching into the waistband of his jeans. The officer said he feared Denyakin would pull out a weapon. No weapon was found.

A grand jury declined to indict Rankin on criminal charges and a jury in a $22m civil lawsuit brought by Denyakin’s family found in Rankin’s favor. Among 250 posts defending himself on a local newspaper website, Rankin wrote “22 mil wont buy your boy back”, adding that most Americans could not hope to earn that in an entire career, “let alone a habitual drunk working as a hotel cook”.

It also emerged Rankin had in Facebook posts referred to his firearms case as “Rankin’s box of vengeance” and said he would rather be dirtying his guns than cleaning them. His Facebook avatar was once a print of a photograph depicting a Serb left hanging from a lamppost by invading Nazi forces in 1943.

When he returned to work two months after the shooting, Rankin was restricted to administrative duties for more than two and a half years. He was finally allowed back on patrols on 1 March 2014. “I never thought seeing Steve get ready for work would make me so nervous,” his girlfriend wrote in a post to Facebook.

Adobe Flash is Dying a Death by 1,000 Cuts, and That’s a Good Thing

Flash is Dying a Death by 1,000 Cuts, and That’s a Good Thing

The end of Adobe’s video carrier is nigh as Amazon marks the first of the big-name advertisers to block Flash ads, while Google’s Chrome will ‘intelligently pause’ them

Samuel Gibbs

Monday 24 August 2015 10.24 EDT

http://www.theguardian.com/technology/2015/aug/24/adobe-flash-dying-amazon-google-chrome

Adobe’s Flash, hated the world over for slowing down computers, containing more holes in security than swiss cheese and stubbornly being the video carrier of choice until recently, is dying.

Video players are migrating to other systems, even if Microsoft’s Silverlight isn’t much better. HTML5-based video and animations are becoming mainstream, and uploaders and other more advanced web-based features can now be replaced with code that doesn’t rely on Flash.

And it’s happening for a good reason. As other components of a web browser and operating system have become more secure, Flash is one of the biggest sources of security vulnerabilities. Hackers love it.

Hacking Team’s commercially available government-supplied tools relied on holes in Flash to hack individuals and companies, for instance, just by users browsing sites unknowingly being digitally broken into.

Even Adobe, Flash’s developer, doesn’t seem to love the much maligned system. Like Microsoft with Windows XP, Adobe’s been trying to migrate companies away from using its own tools while putting out fires left, right and center.

The one major hold out for dumping Flash wholesale has been advertisers. In June, over 100m adverts were displayed to users globally with Flash, while 84% of banner ads are still Flash, according to Ad Age.

Google took the first step by announcing that come September its Chrome browser will not run Flash adverts by default, meaning that the user has to click to enable the advert. Something virtually no one is likely to do. Firefox also blocked Flash over security concerns.

Now Amazon has banned Flash ads from appearing on its ad platform across its sites. Amazon is not the biggest advertising platform, but it is one of the first big name ones to adopt such a policy.

It marks the beginning of the end for Flash (Occupy Flash will be happy). More advertising platforms are likely to follow. When Chrome and its 51% of global browsers, according to data from Statcounter, start to “intelligently pause” Flash ads in September advertisers will be forced to switch wholesale.

The reasons for Flash to exist will then, hopefully, peter out to embedded tools and systems built within Flash, such as administrative tools. Most home users will no longer be burdened with Flash, which will be good for your computer, your battery, your security and your sanity.

For those that want to experience a Flash-free world right now, it is possible to disable Flash entirely within your browser or set it to require a click to enable it each time something wants to use Flash.

Mobile devices such as iOS and Android smartphones and tablets have mostly been Flash-free for years and they work just fine for the most part. Soon everything will have that speedy, Flash-free existence and humanity will be all the better for it.

Warning Over Adobe Flash Vulnerability Revealed by Hacking Team Leak

Tech company promises patch within a day for major new flaw uncovered by leak of 400GB of documents from hacking firm

Alex Hern | @alexhern

Wednesday 8 July 2015 05.15 EDT

http://www.theguardian.com/technology/2015/jul/08/warning-adobe-flash-vulnerability-hacking-team-leak

An unpatched security flaw in Adobe Flash, discovered then kept secret by Italian cyber-surveillance firm Hacking Team, is now being used by malware developers to hack victims’ computers following the leak of over 400GB of data from the company’s servers.

Adobe, which says it expects to publish a patch for the vulnerability at some point on Wednesday, warns that “successful exploitation could cause a crash and potentially allow an attacker to take control of the affected system”.

Symantec warned on Tuesday that “it can be expected that groups of attackers will rush to incorporate it into exploit kits before a patch is published by Adobe”. And, sure enough, it appears that virus writers are already using the security flaw to deliver cryptolocker software, which encrypts a users’ data and demands payment to unlock it, on to unsuspecting computers.

The Hacking Team hack, which saw a BitTorrent file of the massive data dump posted to the company’s public twitter feed, contained emails, presentations and source code for its software.

The initial effect of the leak was an embarrassing number of revelations about the actions and clients of the firm, which largely provides software for law enforcement and national security to hack into the computers and mobile devices of targets.

But the leak also included the code for much of the company’s hacking software, and now virus writers are incorporating the code into their own malware. While many of the security holes used in the company’s “remote control service” (the name for its hacking software) were already publicly known and patched, there were a few vulnerabilities the company had managed to keep secret.

Known as “zero-day” vulnerabilities – because the affected companies have had zero days to release a patch – they are now being used by the wider community of malware authors, as well as Hacking Team itself. The new vulnerabilities were even accompanied by readme files, intended for internal use at Hacking Team to explain how to deploy them, which likely further reduced the time until the virus authors were able to use them in their own software.

Until the Adobe Flash patch is published, web users should be wary of visiting untrusted websites, and may want to enable “click to play” to prevent untrusted Flash files from activating.

Questions in Brussels

Meanwhile, Dutch MEP Marietje Schaake has asked pointed questions in the European parliament about the revelations contained within the Hacking Team data dump. The documents suggest that two of Hacking Team’s clients include Russia and Sudan, two countries covered by EU sanctions.

Schaake asked of the commission whether it believed that the company “has violated EU sanctions regimes”.

She also asked the commission whether it knew of “any prior authorization given by the Italian authorities that would allow Hacking Team to export its products to Sudan or Russia”, and whether or not the company asked the commission explicitly about export controls to those two countries.

In one document leaked from Hacking Team, which listed a number of nations as either “active” or “expired” clients, Sudan and Russia were both marked out as “not officially supported”.

Troubled Kids Get Treated If They are White – But Punished If They are Black (or Brown).

Troubled Kids Get Treated If They are White – But Punished If They are Black

Too many children do not receive the help to which they are legally entitled because of ingrained biases

Tedra Osell

Monday 24 August 2015 07.30 EDT

http://www.theguardian.com/commentisfree/2015/aug/24/troubled-kids-treated-if-white-punished-if-black

There’s a saying in educational circles: white kids get diagnosed, black kids get disciplined. Poor and brown kids, too, disproportionately get suspended, expelled, transferred to “continuation” schools, or even arrested for behavioral problems as mild as swearing. White kids, especially if their parents have money, health insurance, and access to lawyers, are more likely to have even chronic discipline problems treated as symptoms needing investigation and assessment.

I know this because my white kid is in that second group. From first through sixth grade, he was a challenging kid to teach. He was extremely bright – known for arguing with adults when they mistook a declarative sentence for an interrogative one, or got the definition of a light year wrong – and he would interrupt, shout or even swear when frustrated, and refuse to do work he found boring or repetitive. In elementary school, this was chalked up to his being bright and impatient and maybe a little overindulged at home. In middle school, homework issues and social difficulties bloomed into a full-blown case of clinical anxiety and eventually depression that led me to learn a lot about how schools do and don’t deal with these problems.

On Thursday, the US District Court in Los Angeles opened an unprecedented court case that argues that the way Compton Unified School District has treated students with trauma-induced anxiety and related behavioral problems violates federal law. The class action lawsuit argues that living with violence and “complex trauma” constitutes a disability, and that students who, because of where they live, have witnessed or experienced trauma or violence – shootings, abuse, foster placement, homelessness – are entitled to special education services under federal disability law.

Their argument is rooted in medical research. It’s well established that anxious children, perhaps especially boys, often act out in ways that do not look the way adults think anxiety should. When we imagine an anxious kid, we imagine them crying, clinging, hiding, shrinking away. But in fact, anxious children – and for that matter, anxious and depressed adults – often become aggressive and combative.

Their fight or flight response kicks in and they react by fighting. Even fleeing often looks like non-compliance: a kid who refuses to do homework, or skips school, or runs away, is often acting out of fear. The kids themselves, being kids, may lack the self-awareness or communication skills to understand or explain this, but psychologists and doctors who work with children recognize the symptoms.

It isn’t just about discipline, either. There’s also research showing that anxiety and stress inhibit learning, memory, the ability to follow directions – all the things we expect kids to be able to do in school. A kid who is using all their emotional and intellectual energy just to try to hold themselves together is a kid who doesn’t have a lot left over to memorize times tables or work algebra problems.

This means the approach most people think of for kids who are ‘difficult’ or who aren’t doing well in school (when those kids aren’t their own kids, and sometimes even when they are) is unhelpful, and actually harmful. Punishing a stressed kid just adds more stress. Eventually they reach a breaking point.

My own son’s breaking point came the day the county crisis team showed up at our house because someone heard him muttering that if he couldn’t keep dealing with school he could always decide to kill himself. I knew he’d been saying that and we’d been trying out therapists and having meetings at school about what accommodations could be provided for his anxiety. But when adults he didn’t know came to his home, accompanied by the police, to ask him intrusive questions, his trust in the school that sent them broke beyond repair, and we never sent him back. It took time and money to fix things and now he’s doing great.

But most kids, especially kids who are likely to end up in the school-to-prison pipeline, don’t have parents who can afford to find private solutions. And legally speaking, they don’t have to: public schools are required to accommodate kids with mental health or other disabilities that inhibit learning. For kids whose disabilities aren’t visible, accessing those services means getting a diagnosis. When professionals treat ‘acting out’ as a problem, rather than recognizing it as a symptom, kids don’t get that diagnosis. They don’t get help, and they don’t get the educations to which they are legally entitled.

If the kids suing Compton Unified win their case, they could make more difference to educational equity in this country than all the standardized testing in the world. This case won’t solve all the problems of poverty, or all the challenges for public education. But it could establish that the anxiety and stress that accompanies traumatic violence and poverty counts just as much as the anxiety and depression that come from genetic bad luck. As the parent of a kid who has been through that nightmare and is now coming out the other side because he got the support he needed, I am rooting for them.

Minneapolis Cop Steven Lecy Who’s at Center of Prostitution Sting Controversy Has Been the Subject of Several Misconduct Complaints

Minneapolis Cop at Center of Prostitution Sting Controversy Has Been the Subject of Several Misconduct Complaints

By Andy Mannix | 08/20/15

http://www.minnpost.com/politics-policy/2015/08/minneapolis-cop-center-prostitution-sting-controversy-has-been-subject-sever

Last December, after responding to an ad on Backpage.com, Steven Lecy walked into a small massage studio in Minneapolis’ Longfellow neighborhood. He put $140 on the table and took off his clothes.

The masseuse, Terian Ann Jackson, stripped down to her underwear and began rubbing him. After commenting on Jackson’s “incredible” body, Lecy let her straddle him and rub his genitals.

What Jackson didn’t know was that Lecy was an undercover cop, wired for sound, with fellow officers outside waiting to make an arrest. Yet Lecy would make them wait — the massage lasted more than 20 minutes before he signaled for his colleagues to enter.

Nine months later, Lecy’s actions during the sting have become the source of controversy. On Tuesday, a Hennepin County judge dismissed all charges against Jackson, citing “outrageous government conduct” on part of Lecy. Hennepin County Chief Public Defender Mary Moriarty, whose office represented Jackson, said Lecy went over the line by letting the massage go on for so long, calling his behavior “gratuitous and disgusting.”

“I think it’s pretty clear what’s going on here — that there is sexual contact,” she said. “This is not the behavior I think the citizens of Minneapolis want their police officers to engage in.”

In light of the incident, the department said Wednesday that it’s re-examining its policies on prostitution investigations. Until that review is complete, the department has suspended all undercover prostitution operations.

But this isn’t the first time Lecy — a decorated officer who’s appeared on the television show “Cops” — has been accused of misconduct. A month before he walked into the massage studio, the city of Minneapolis settled out of court in a federal lawsuit alleging Lecy threw a resident of Little Earth, the subsidized housing complex for Native Americans, to the ground by his hair and made racist comments. In February, the city settled another federal suit involving Lecy — this one alleging that he and other officers brutally beat a south Minneapolis man on New Year’s Day.

A third federal suit is pending, alleging that Lecy helped violently beat a man during a drug arrest in 2013. Last week, the city tentatively agreed to a settlement in that case as well.

A History of Complaints

In the past year, the city has paid out about $50,000 total settling cases involving Lecy — which is not the same as an admission of guilt. The third settlement is awaiting approval from the City Council and the mayor.

According to the federal complaints:

  • Around 4 a.m. on New Year’s 2010, Lecy and several other officers showed up at Michael Burnett’s house in South Minneapolis, responding to a call of shots fired in the area. Burnett was holding a small gathering. He answered the door and Lecy, without provocation, began punching him with a closed fist. He then shot Burnett with a TASER “four to six times.” One of the officers hit Burnett in the face with the butt end of a flashlight. They pushed him down a flight of stairs, then one of stepped on his head, pushing his face into the ground.  Burnett suffered several injuries, including an orbital skull fracture that led to vision loss in one eye. He was booked for disorderly conduct and obstruction of justice.
  • In 2013, Lecy responded to a report of a man wielding a knife at Little Earth. During the search, he got into an altercation with resident Michael Ofor. He threw Ofor to the ground by his hair, held his head against the ground and said, “All you Native Americans are nothing but fucking animals.” (Lecy denied making the derogatory comment in a deposition for the case, and said Ofor was uncooperative during the arrest). Prosecutors charged Ofor with several counts of obstructing justice, which were later dismissed. He was convicted on one count of congregating on streets and sidewalks.
  • In the third incident, Lecy and two other officers beat up a man named Louis Tate during a narcotics pat down. While Tate was on the ground, Lecy “repeatedly and violently punched [him] in the face,” the suit alleges. The officers brought Tate to the police station, but after seeing his injuries a nurse said he needed to go to the hospital before he could be booked. At that point, Lecy “grabbed [Tate] by the arms and told [him] that he was going to make sure [he] spent the rest of his life in prison.” Tate was found guilty of third-degree drug possession, a felony; another charge for second-degree possession was dropped.

When asked for comment on these allegations against Lecy, the city responded by reiterating in a written statement from Chief Janee Harteau that the department is “no longer using undercover operations to investigate suspected prostitution in massage businesses.”

Beyond the Call of Duty?

Moriarty and her staff were “horrified” when they first listened to the recording of Lecy’s massage investigation, she said. Slapping sounds and moaning can be heard in the audio of the incident. Lecy told Jackson she was “incredibly beautiful” and had an “incredible ass.”

According to the charges against Jackson, Lecy had asked asked for a “body-to-body” massage, which “entails the person giving the massage to rub their nude body on the person receiving the massage.” At some point in the massage, Jackson “began to rub the officer’s genitals while lying across him and rubbing her breasts onto his chest and pelvic area,” the complaint says.

“Wow, that’s awesome,” he said. It was now more than 20 minutes into the massage. “Definitely gonna be a repeat customer,” he continued — the code phrase for Lecy’s fellow officers to break in.

The Minneapolis city attorney’s office charged Jackson with prostitution, operating a massage parlor without a license, and unlawfully exposing her breasts and touching her client during a massage. Moriarty said her office asked the prosecutors to drop the charges after hearing the audio of the incident, but they declined. The judge dismissed all four charges this week.

The officers should have moved in much sooner, said Moriarty. The crime of prostitution began when the deal for the body-to-body massage was agreed upon and the money was on the table. Everything after that was excessive, she said.

She compared it to female officers conducting sting operations to catch johns. “You know there’s no contact in any kind if they can avoid it. So why is it that the male police officers are allowed to do this kind of thing?”

This isn’t the first time a Minneapolis police officer has been accused of misconduct in a prostitution investigation. The Star Tribune points out that two other cases have been either dropped or dismissed this month.

Police declined to release whether or not they’re investigating Lecy internally for this incident — or any other cases — citing exemptions from state data laws for undercover officers.

“He certainly should be investigated,” said Moriarty. “I don’t think anybody wants Minneapolis police officers engaging in this type of behavior.”

3 Prostitution Cases Dismissed Over Behavior by Minneapolis Officers

The cases were dismissed because officers had sexual contact with female suspects.

By David Chanen Star Tribune

August 19, 2015 — 11:26pm

http://www.startribune.com/prostitution-case-dismissed-because-minneapolis-undercover-officer-inappropriately-touched-woman/322314011/

Three prostitution cases have been thrown out this month by Hennepin County judges and the Minneapolis city attorney, who said Minneapolis undercover police investigators went too far.

The officers’ sexual contact with the female suspects also drew a sharp denunciation from the county’s chief public defender, Mary Moriarty.

“Do citizens want officers behaving in this manner?” Moriarty asked Wednesday.

Two of the cases were dismissed by Hennepin County judges in rulings that found the officers’ actions constituted “outrageous government conduct.” The third was dismissed by the Minneapolis city attorney in light of one of the judges’ rulings.

On Wednesday, Minneapolis police said the department has discontinued such undercover investigations pending a full review of its policies. The department declined to comment on the specific cases. None of the three officers involved in the cases is under internal investigation.

As far back as 2009, the Minnesota Court of Appeals had addressed such conduct by Minneapolis police when it reversed a prostitution charge, citing similar pre-arrest behavior. At the time, then-Chief Tim Dolan asked for an internal inquiry on how the investigation was handled.

In the first of the three recent cases, Moriarty’s office learned of the conduct as it defended a woman charged in March with four misdemeanor and gross misdemeanor charges of prostitution and illegal acts at a massage business, including exposure and unlawful touching. The city attorney’s office said at the time that the case was prompted by community complaints about possible prostitution activity at a south Minneapolis business.

When assistant public defender Briana Perry received the case, she e-mailed Moriarity the 36-minute audio recorded during the encounter between officer Steven Lecy and the woman at the massage parlor, saying she found the officer’s behavior “just disgusting.” Moriarity sent the case to City Attorney Susan Segal and asked for a dismissal, but Segal declined.

On the recording, after nearly 30 minutes of small talk about tattoos, the weather and his broken hand, Lecy, who also compliments the woman’s anatomy, interrupts the massage and asks the woman if she wants him to flip onto his back. She begins touching his genitals as part of a naked “body-to-body” massage. Lecy can be heard moaning. A few moments later, he says the words “repeat customers,” code to backup officers that it’s time for an arrest. They then enter the room.

Moriarty said Lecy arrived two hours late for this week’s dismissal motion hearing and was surly and clearly upset.

“The Police Department has undercover female officers who do detail like this,” Moriarity said. “Do you think they would allow themselves to behave in any sort of sexual manner?”

In a dismissal order issued in court Tuesday, Hennepin County Judge William Fisher said probable cause for a crime could have been established long before the sexual activity recorded on the tape. Lecy’s attorney had argued that touching was necessary to make the encounter a crime.

“What must it have been like for this woman to have this happen and find out it was a police officer?” Moriarty said.

Attorney Jeffrey Dean represented the woman charged in the other two eventually dismissed cases. One case involved officer Christopher Reiter, who was found to have engaged in “outrageous sexual conduct” that violated a woman’s due process rights while he was doing undercover work at a south Minneapolis parlor in November 2014.

Hennepin County Judge Amy Dawson wrote in her Aug. 7 dismissal order that Reiter “initiated sexual contact that isn’t required for the collection of evidence to establish elements of the offense.”

Nearly 20 minutes into his interaction with the woman, court documents say, Reiter pointed to his groin after she asked “if there were any areas she had missed.” She started to rub his genitals and they negotiated a price for further action “that would take care of him,” the documents say.

Reiter’s attorney argued that his behavior was necessary to gather evidence and to protect his safety until backup officers arrived. He was merely involving himself in ongoing criminal activity and the woman wasn’t a reluctant participant, his attorney argued, court documents show.

“Cases regarding prostitution can have actions that can be offensive or distasteful,” Reiter’s attorney wrote. “That does not make them due process violations.”

The third case involved the same woman Dean represented in his other case. She was arrested in May after officer Abubakar Muridi asked her to rub his genitals before he negotiated a price for sex, Dean said. The city attorney dismissed that case Monday.

“My hope is that the Police Department will finally stop engaging in the outrageous conduct of having sexual relations with the targets of their investigations,” Dean said. “Women in prostitution are vulnerable and traumatized. They have often been the victims of physical and sexual abuse and suffer from poverty and addiction. When police engage in this unnecessary sexual conduct, the officer worsens the trauma and deepens the damage.”

New Massage License Needed

Meanwhile, a city spokesman said Wednesday that Minneapolis’ new massage license ordinance may offer a civil regulatory path to reducing prostitution that wouldn’t require building cases for criminal prosecution.

The new rules, which were passed by the City Council in 2013 and went into effect in July, require home businesses to pay an annual licensing fee of $50 and larger massage businesses to pay $140. The new rules also outline a variety of “unlawful acts” that could result in a citation or revoked license. The ordinance is aimed at making it harder for prostitution rings and other illegal outfits to thrive under the guise of the massage business.

dchanen@startribune.com 612-673-4465

Captain Kristen Griest, 26, and first lieutenant Shaye Haver, 25, graduated from the prestigious Army Ranger school in Fort Benning, Georgia, with 94 male classmates.

The Army Should Assign Roles Based On Merit, Not Gender

Staff Sergeant Jennifer Hunt
Friday 21 August 2015 10.15 EDT
http://www.theguardian.com/commentisfree/2015/aug/21/army-women-merit-not-gender

Now that two women have graduated from Army Ranger school, it’s time to end remaining restrictions on women’s roles in the military

During my deployment to Iraq in 2007, the IED that hit my vehicle did not discriminate between male and female soldiers. During my deployment to Afghanistan in 2004, I accompanied combat arms soldiers on “door-kicking” missions, searching the women in remote villages. I carried out this unofficial duty in addition to my official combat support job – women in the US military were officially barred from serving in combat units until 2013.

For the 13 years that I have served in the United States Army Reserve, I’ve always known that women have what it takes to lead and execute in modern warfare, which is why it came as no surprise that two women will be the first female graduates of Ranger School. For me, this was always a question of when — never if.

As a plaintiff in the lawsuit against the Department of Defense’s combat exclusion policy in 2012, I pointed out that the inability to enroll in elite schools such as Ranger School simply due to gender constituted structural discrimination. This automatic rejection puts female soldiers and officers at a disadvantage for future assignment choices and career advancement.

A few months after the suit was brought, former Secretary of Defense Leon Panetta announced that he was officially rescinding the 1994 directive that prohibited women from being assigned to ground combat units and positions. And although there’s still a ways to go to achieve full combat integration, opening the Ranger course to women on a trial basis allowed for the historic graduation of two highly qualified women soldiers to take place Friday. This is a great start, but the Army must open all positions to qualified women.

Putting men and women on equal footing would expand the potential pool of recruits. Currently, two thirds of America’s youth would not qualify for military service, be it due to criminal records, not having a high school diploma or physical conditions such as obesity. Of the one third left, only about 1% of those young adults would be inclined to have a conversation with a recruiter. As fewer people are able to meet the military standard to join and are less inclined to actually join if they do, the Army must focus on attracting top talent, irrespective of gender.

Once the Army attracts that talent, they must work to keep it. By maintaining discriminatory policies that still exclude women from the vast majority of combat positions, women are shown that the Army is not the place for them if they want to have a career. They receive the unspoken message that no matter how hard they work, or how good they are, at the end of the day it’s their gender and not their ability that the Army cares about. It tells the male soldiers that women can only be counted on to do the support jobs and only trusted to an extent. Even with over a decade of experience, including two deployments, I have often felt that I still needed to prove that I belong in uniform.

As the first two women to ever earn Ranger tabs prepare for their graduation this week, I applaud not only them, but the Army for waking up to the reality that it is time to do away with needless archaic rules. Their graduation has already seemingly influenced other service branches. This week the Navy announced that they would likely open up the Seals to women who pass the rigorous Basic Underwater Demolition Course. The Navy actually goes one step farther than the Army, which has not announced whether the 75th Ranger Regiment and other elite units will be open to women.

In today’s ever-changing and complex battlefield, the Army needs to stress talent and ability to complete the mission over gender. I hope that the female graduates’ leadership will show the Army that grit and ability know no gender and show the next generation of soldiers, both male and female, that their abilities will be fully recognized based on their merit alone.

Women Graduate for the First Time from U.S. Army Ranger School

Captain Kristen Griest, 26, and first lieutenant Shaye Haver, 25, graduated from the prestigious school in Fort Benning, Georgia, with 94 male classmates

Alan Yuhas in New York | @alanyuhas

Friday 21 August 2015 12.32 EDT

http://www.theguardian.com/us-news/2015/aug/21/women-graduate-us-army-ranger-school

Women graduated for the first time from the US Army Ranger School on Friday, a milestone for the American military as it slowly integrates female soldiers into its most storied units.

Captain Kristen Griest, 26, and first lieutenant Shaye Haver, 25, graduated from the prestigious school in Fort Benning, Georgia, with 94 male classmates who successfully finished three arduous phases of training, lasting months in total.

“What a great day it is to be a US army ranger,” command sergeant major Curtis Arnold said to the graduates, alumni and family assembled by the school’s “Victory Pond”.

“From lightning strike survivors to cancer survivors, and yes, the first women ranger graduates,” he continued, “these are the soldiers who upheld the ranger standard, the only standard.”

Major general Scott Miller, the commanding general of the school, said he felt he had to address “some of the nonsense on the internet” about adjusted standards.

“The five-mile run is still five miles. The times do not adjust. The 12-mile road march is still 12 miles. Times do not adjust,” he said. “The mountains of Dahlonega are still here. The swamps remain intact. There was no pressure from anyone above me to change standards.”

He then invited anyone who questions the standards to come to Fort Benning and attempt to match them.

“You’ve acquitted yourselves quite well,” Miller told the graduating rangers, adding that “there’s something special behind that handshake” between two rangers.

“At some point going through this course you found a moment of vulnerability, where you weren’t the best you wanted to be. What matters is what you do with that moment of vulnerability. Are you able to overcome, to persevere, and most importantly are you able to help the team.”

Before the graduation ceremony, rangers demonstrated some of the skills trained in in the preceding months: rappelling down vertical walls ready to fire a weapon horizontally; crawling out along a rope and then doing chin-ups high over the ground; hand-to-hand combat; dropping from helicopters; swimming with gear yards to shore.

The show was only a hint of what the rangers endured: weeks of hunger and sleep deprivation, miles carrying heavy packs of gear and munitions, night hikes through pitch-black swamps and silent, rigorous patrols through steep mountains.

“I think I would be crazy to say I didn’t [think about quitting],” Haver told reporters on Thursday. “The men can back me up on this. There’s definitely a point you hit along the way,” she said. “But the ability to look around to my peers and see they were sucking just as badly” gave her strength, she said.

An Apache helicopter pilot from Copperas Cove, Texas, Haver said on Thursday that she plans to return to her unit and “serve as far as leadership will let me continue”.

Griest, a military police officer from Orange, Connecticut, said she’s “interested to see what new doors do open up for women. I think Special Forces would be something that I’m definitely interested in”.

“We can handle things physically and mentally on the same level as men and we can deal with the same stresses,” she later added.

“The team that I’m graduating with tomorrow accept me completely as a ranger and I couldn’t be more proud and humbled by the experience,” Haver said.

Miller praised the women’s accomplishment on Thursday, and reiterated what all instructors and observers said: standards never wavered with the women’s arrival.

“Some students looked slightly different than others but for the most part it’s just the same,” Arnold said. “It’s still just ranger training.”

“I think we’ve shown it’s not exclusively a male domain here,” Miller said, but he demurred as to the army’s impending decision of whether to fully integrate combat roles or to ask for exceptions from defense secretary Ash Carter in January 2016.

Fort Benning will run another course open to women ranger applicants in November, Miller said.

“We’ll contribute to the discussion, but I think we just let them have some more time to make a decision.”

Griest said that she hopes “that with our performance in Ranger School we’ve been able to inform that decision”.

A third female student in the current class is currently retaking the mountain phase of training, and has a chance to graduate before 18 September.

Haver and Griest remain barred from applying for the 75th Ranger Regiment, an elite combat force related to but separate from the school, and a unit with its own rigorous selection process. Earlier this week, however, army, navy and air force officials suggested they are moving toward full integration, including in Special Forces units such as the rangers and Seals.

About 40% of applicants to the Ranger School graduate each year, and only about 3% of soldiers in the army qualify for the course.