Court rules public employees' benefits protected by law

Retired public workers can count on promised benefits, court says

California Supreme Court rules in an Orange County case that implied contracts covering retirees' healthcare are valid.

y Maura Dolan, Los Angeles Times

November 21, 2011, 5:50 p.m.

Health benefits for government retirees may not be eliminated if state and local governments had clearly promised workers those benefits, the California Supreme Court ruled in an Orange County case Monday.

The unanimous ruling is expected to make it more difficult for state and local governments to shave costs by cutting health benefits to retirees if elected officials in previous years made it clear that those benefits would last a lifetime.

The state high court decided that retired Orange County employees may be able to show they had an implied contract that prevented the county from changing a healthcare plan in a way that caused the premiums of many retirees to skyrocket.

"Under California law, a vested right to health benefits for retired county employees can be implied under certain circumstances from a county ordinance or resolution," Justice Marvin R. Baxter wrote for the court.

Retirees sued Orange County in 2007 after it revamped the health benefit program to save money. A federal trial court sided with the county. An appeals court, which is now considering the case, asked the California Supreme Court to clarify state law in the case.

"This decision says that when you are in the process of doing public employee pension reform, you have to respect the rights of current retirees," said Ernest Galvan, a lawyer who represented more than 5,000 Orange County retirees and their family members.

"If you promised them a particular benefit when they were working and promised that would be part of their retirement, then that is a promise you have to keep."

But lawyers for cities and counties said they were pleased the court established a hurdle for showing that such promises were made.

"The good news for cities and counties is that the court made it clear that you need very strong evidence that the [elected officials] intended to create a lifetime benefit," said Jonathan V. Holtzman, who represented associations of California cities and counties.

Arthur A. Hartinger, who represented Orange County, said the county changed the health insurance plan to ensure it could survive.

"This was about saving a plan that was on the verge of bankruptcy," Hartinger said. "Almost all the retirees have remained covered in group health insurance."

The case will now return to the U.S. 9th Circuit Court of Appeals. Lawyers said they expect the lawsuit to be sent back to the trial court to determine whether there was evidence of clear promises.

maura.dolan@latimes.com

Copyright © 2011, Los Angeles Times





Public pensions are protected in Constitution

But some believe the contracts clause doesn't prevent the state from changing costly retirement plans.





By George Skelton Capitol Journal

November 14, 2011, 4:37 p.m.

From Sacramento

In Philadelphia, 224 years ago, some men tucked these words into the nation's new Constitution: "No state shall … pass any … law impairing the obligation of contracts…"

Those words, squeezed into a very long sentence in Article 1, Section 10, listing powers denied the states, became known as the "contracts clause." And it is playing havoc with modern-day public pension reformers, including Gov. Jerry Brown.

As widely interpreted — most importantly by the courts (or so we laymen are told) — the clause means that pensions promised state and local government workers on the day they were hired cannot be reduced without giving them a new compensating benefit.

In other words, some kid walks into a state office seeking a junior clerk job. He lands it. That constitutes a contract. The new hire is entitled to the pension benefit then in effect if he sticks around long enough to collect it — even if the subject of retirement perks never was discussed, as it surely would not have been.

"Employees are entitled to benefits in place during their employment," asserts the California Public Employees' Retirement System in a recent report.

"Promised benefits may be increased during employment, but not decreased, absent the employees' consent.... The courts have established that this rule prevents not only a reduction in the benefits that have already been earned, but also a reduction in the benefits that a member is eligible to earn during future service."

That's a jaw-dropper, I suspect, for most private-sector workers. They don't enjoy such constitutional protection. They're covered by a federal law that basically guards only the pension benefits they've already earned.

As too many of us know, there has been an epidemic of private pension butcheries in the last decade. Companies simply have announced that they're freezing benefits. Employees will get what they've accrued — what they're vested in — but will earn no more in the future.

The company's new retirement plan will be a 401(k), where the financial risk is borne by the employee rather than the employer. Forget what, if anything, the worker was told when hired. The world has changed.

Naturally, this has created a great deal of pension envy among the vast majority of voters who don't work for a state or local government.

And it's at the heart of voter demands for public pension reform — with plenty of legitimate justification: The future liabilities of public pension systems are underfunded by hundreds of billions of dollars.

The deficit-ridden budgets of state and local governments need immediate relief from the escalating cost of pension contributions for current employees. And the long-term fiscal health of these governments requires a significant reduction in retirement benefits for future hires.

A poll in March by the Public Policy Institute of California showed that 74% of likely voters favored eliminating pensions and adopting 401(k)-type systems for new workers. And 57% thought pension plans should be reduced for current employees.

But the current employees' protection in the U.S. Constitution is fortified by a similar clause in the California Constitution: "A … law impairing the obligation of contracts may not be passed."

Here's the worst kicker for private-sector taxpayers: There's a theory that current employees can't even be forced to contribute more into their pension plans.

Part of Brown's recent proposal to overhaul state and local government pensions is to require workers to pay a larger share of their retirement costs. Many already have agreed to through collective bargaining.

"One thing we know for sure under constitutional law," Brown told reporters, is "the employer can require higher contributions, and that is the most immediate and the biggest change that will make our pension plans more solvent."

Not so fast, says nonpartisan Legislative Analyst Mac Taylor. He's also certain, but in the opposite way of the governor.

The analyst, in a recent report, called it "a legal and collective bargaining minefield," adding that "our reading of California's pension case law is that it will be very difficult — perhaps impossible — for the Legislature, local governments or voters to mandate such changes."

Brown isn't buying it, according to his labor secretary, Marty Morgenstern.

"We think the legislative analyst is wrong," Morgenstern says. "Different people have different opinions about that. One never knows what the courts will do."

I called a constitutional law professor, John Eastman of Chapman University. He agrees with Brown.

His reading of two centuries of case law on the contract clause, Eastman says, is that public pension plans can be modified if there's "a real serious fiscal problem, a dire financial need — and the system is underfunded. Given the circumstances in California, I think we would meet the legal requirement."

He adds: "Guys in the Legislature made [pension] promises they cannot fund. Making sure that future generations of taxpayers are not held to that obligation is not a violation of the contracts clause."

You'd think.

Eastman is working with a conservative group to place a more drastic pension overhaul than Brown's on the California ballot next year.

Brown's plan — which analyst Taylor calls "bold" overall — would trim retirement benefits for future employees. Their retirement ages would be increased, and they'd be plugged into a 401(k)-pension mix.

The goal would be to replace 75% of their salaries — still generous by private-sector standards.

But the notion of not being able to alter pension plans for current workers — even force them to contribute more — is nuts. A lifelong contract shouldn't come with an entry-level job offer.

It's hard to believe that's what the Constitution's framers had in mind.

george.skelton@latimes.com

Judge orders release of L.A. County pension data

Rejecting arguments that the records are confidential, he rules that all pension data for 50,000 government retirees must be disclosed. The Times has sought the data for nearly a year.

By Catherine Saillant, Los Angeles Times

November 16, 2011

A Los Angeles judge Tuesday ordered the release of all pension data for 50,000 Los Angeles County government retirees, rejecting arguments by union and retirement system attorneys that the records are confidential.

Superior Court Judge James Chalfant ruled that the Los Angeles County Employees Retirement Assn. must produce several variables that are used to calculate an employee's pension, including years of service at retirement, additional service credits purchased by an employee and the pension formula.

Chalfant also largely denied a request by lawyers for two unions representing sheriff's deputies to keep the names of former undercover officers secret. The union lawyers argued that revealing those names could put the retired officers at risk of retaliation from drug cartels and gang members that they targeted on the job.

But the judge said most of the examples cited by the attorneys were "speculative" and agreed to keep confidential only two names. One of those retired deputies is now in prison and could be threatened by inmates if his name and former position were revealed, said Ricardo Ochoa, an attorney for the Professional Peace Officers Assn.

The Times has sought pension data on the county's 50,000 retirees for nearly a year. In September, the Los Angeles County Employees Retirement Assn., which administers the pension benefits, provided limited information on retirees, including their names, pension payments and the departments from which they retired.

But the release of similar data for 2,527 public safety employees was delayed after a union attorney alleged that its release could endanger the lives of some retirees. Tuesday's ruling compels the disclosure of those records.

catherine.saillant@latimes.com

Thug cops and dirty hippies

by Mark Nichols

Anyone who knows anything about law enforcement work understands that it’s not easy even under optimal conditions. Most people get to go home at the end of a shift without seeing abused kids, victims of violent crime and the panoramic misery officers are exposed to on a daily basis.

Then there are the split second decisions cops have to make that lives depend on, judgment calls that can make or break criminal cases and navigating the world of inner-agency power struggles and other conflicts.
   
Most people don’t have to wonder when they kiss their spouse in the morning if they’re coming home that night.
  
 All that for a meager paycheck and a hostile general public and media.
  
Ironically, those that understand the pressures and challenges of the job frequently feel the most sympathy for police officers when others feel the least.
   
Which brings us to the OWS protests.
  
For a lot of civilians, cops seem like a monolithic group- an intimidating force of men and women with guns and powers of arrest that think and act alike.

This is of course absurd.

But the chants of “who do you protect?” and signs reading “police serve and protect the interests of the one percent,” indicate that the stereotype is a common one.
   
People are generally more comfortable with black or white than gray. As a result the idea that police are enforcing the law in the interest of the powerful as opposed to the powerless is an attractive one for many protestors.

It’s pure fantasy but that’s why it’s such an attractive notion to many. And because the one- percent are largely anonymous and invisible, police get left holding the bag in terms of being on the receiving end of protestors’ rage.

Michael Bloomberg does not do crowd control. He takes a helicopter to lunch. So anger that wasn’t intended for the police gets directed their way because they’re the only available and visible target. 
   
Because Americans live in a free society, many of us don’t even know what it is that police actually do beyond what we see on wildly unrealistic television shows and Hollywood movies. Most folks just don't understand the challenges of controlling an emotionally volatile and disorganized crowd trying to make their voices heard.
  
 “Why don’t the cops just let them protest?”
   
That’s a great idea, right up until the point when someone’s mother gets stabbed and police and EMS can’t get to the scene because the street’s blocked. Then it’s “why didn’t the police get to the scene faster?” when the victim bleeds to death.
   
“Why did they have to use pepper spray on that old lady?”
   
Well maybe that was the best way to deescalate a confrontation that could have left cops and civilians alike with more serious injuries than temporary eye irritation. Have there been some questions raised about particular use of force incidents? Of course. These things are messy, chaotic and generally don’t go according to plan. Those questions will be asked and answered in due course.
  
“Why are the cops so mean?”
   
You try maintaining total composure while people yell all kinds of vile crap about you, your family and your occupation. It’s not as easy as it looks.
   
“Cops serve and protect the one percent!”
   
Really? You think patrol officers spend all their time taking lawn ornament complaints in gated communities? Cops spend the lion’s share of their careers serving and protect the most vulnerable and least advantaged among us.

The so-called one- percent are largely behind the effort to neuter public safety unions. You really think cops want to serve the exclusive interests of individuals that would make their lives more difficult?
  
But when emotions run as high as they do currently, it’s easier for people to go with established black and white narratives rather than engage the gray.
   
It’s difficult for a liberal college student to face the fact that a cop might have lost his or her house to foreclosure and feels just as angry if not angrier about lawlessness on Wall St. than they do. It’s just as difficult for a conservative cop not to buy into the “dirty hippie,” stereotype designed to delegitimize the protests entirely. 
   
The difference between the protestor and the cop, who may in fact be on the same page on a lot of issues, is that the cop does not have the same opportunity as the protester to exercise their first amendment rights. It doesn’t even matter if you’re a protestor or a counter protestor.

If you’re a retired captain from another city it’s a different story. You’re no longer charged with the public safety mission. But one of the sacrifices police officers make to do a really tough job is giving up the right to speak out that many Americans simply take for granted.

So, as is usually the case, policing the protests is largely a thankless task. But it’s important to remember a couple of things. First, although it may not seem like it, there are a lot of civilians that know just how hard police officers are working to maintain public safety in the most difficult of circumstances.

But the evening news crew doesn’t want to interview those people. They want someone with blood on their face and an axe to grind for the ratings.

The second thing to keep in mind is that the professionalism and restraint shown by American law enforcement during the protests is critical to democracy itself.

It’s unclear what the outcome of the demonstrations will be. But if there’s change for the good that comes about as a result, a lot of cops are going to deserve a lot of credit for that progress.

Mark Nichols is the editor of American Police Beat

9th Circuit Court of Appeals rules use of Tasers considered excesive force

NINTH CIRCUIT: USE OF TASERS CONSTITUTED EXCESSIVE FORCE IN TWO CASES
INVOLVING NONCOMPLIANT SUBJECTS

By Michael P. Stone and Melanie C. Smith, Attorneys at Law

The Ninth Circuit has issued a decision finding that excessive force was used in two incidents where officers utilized tasers against noncompliant subjects. Mattos v. Agarano, Docket No. 08-15567, was submitted and decided together with Brooks v. City of Seattle, Docket No. 08-35526.  The opinion was issued on October 17, 2011.  The issue in both cases was whether the defendant officers were entitled to qualified immunity from the plaintiffs’ claims of Fourth Amendment violations for unreasonable and excessive use of force.

The doctrine of qualified immunity shields a peace officer (or other government official) from civil liability for conduct that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Harlow v. Fitzgerald, 457 US 800, 818 (1982).  This balances the “need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”  Pearson v. Callahan, 555 US 223, 231 (2009).

The qualified immunity determination is a two-step test: first, viewing the facts in the light most favorable to the plaintiff, the court must decide whether the officer violated the plaintiff’s constitutional right; if so, the court must decide whether the right was clearly established in the context of the specific case at the time of the event.  Saucier v. Katz, 533 US 194, 201 (2001).

Whether a use of force is reasonable or whether it is excessive is determined by the facts of the situation, and involves balancing governmental interests against the nature of quality of the intrusion on the individual’s Fourth Amendment rights.  Graham v. Connor, 490 US 386 (1989), guides this determination.  Factors involved in determining the governmental interests at stake include: “(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.”  Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994), citing Graham, 490 US at 396.

Whether a right was clearly established at the time of the event depends on whether it was “‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011), quoting Anderson v. Creighton, 483 US 635, 640 (1987).  This does not require that there be case law exactly on point, but “existing precedent must have placed the statutory or constitutional question beyond debate.”  Id.  This takes into account that officers are required to exercise their discretion while performing their official duties and are often called upon to make split-second decisions in uncertain or intense situations.
Applying this test in the Mattos/ Brooks cases, the Ninth Circuit determined that while the facts as alleged by the plaintiffs amounted to excessive force, the defendant officers were entitled to qualified immunity in both cases because the law regarding use of force with respect to tasers was not clearly established at the time of the incidents.

Malaika Brooks

On November 23, 2004, in Seattle, Washington, Brooks was driving her 11 year-old son to school.  Brooks was seven months pregnant at the time.  Brooks entered the 20-mile-per-hour school zone driving 32 miles per hour and was pulled over by police officer Juan Ornelas.  Brooks’ son exited the car to go to school as Brooks gave her license to Ornelas.  When Ornelas cited Brooks for speeding, Brooks insisted she had not been speeding and refused to sign the citation.  Officer Donald Jones then asked her to sign the citation and explained that it was not an admission of guilt but a confirmation that she had received the citation.  Brooks told Jones he was lying and continued to refuse.  Jones advised her that if she did not sign the citation she would go to jail.  Sergeant Steven Daman arrived and also asked Brooks to sign the citation.  Brooks again refused.  Slip op. at 19007-08.

Ornelas told Brooks to get out of the car because she was going to jail.  Brooks refused to get out of the car.  The car was still running at this point.  Jones then pulled out a taser, showed it to Brooks, and asked if she knew what it was.  Brooks indicated she did not know what it was, then informed the officers that she was pregnant.  After learning this, the officers discussed where to tase Brooks.  Ornelas then opened the car door and twisted Brooks’ behind her back, and Brooks stiffened her body and clutched the steering wheel to prevent the officers from pulling her out of the car.  Jones cycled his taser, showing Brooks what it did.  Around this time, Ornelas was able to remove the car keys from the ignition and drop them onto the floor of the car.  Slip op. at 19008-09.

Jones then applied the taser to Brooks’ clothed thigh in drive-stun mode.  Brooks began to cry and started honking her car horn.  Thirty-six seconds later, Jones applied the taser to Brooks’ bare left arm, and six seconds later he applied it to her neck.  Brooks fell over in the car, and the officers were able to drag her out and handcuff her.  Slip op. at 19009.

Brooks did not experience any lasting injuries from the tasing but sustained several permanent burn scars.  Her daughter was born healthy approximately two months later.  Brooks sued the City of Seattle, the police chief, and the involved officers for excessive force in violation of the Fourth Amendment, the City and the chief for negligence, and the officers for assault and battery.  The officers moved for summary judgment on the grounds of qualified immunity.  The district court denied the motion as to the excessive force claim, ruling that Brooks had alleged facts supporting a Fourth Amendment claim and that the officers were not entitled to qualified immunity.  The officers appealed.  Slip op. at 19009-10.

Addressing the excessive force question first, the Ninth Circuit held that a reasonable fact-finder could conclude that the officers’ use of force was constitutionally unreasonable and excessive.  The Court found that Brooks had not committed a serious violation and that she did not pose a threat to the officers.  While acknowledging that Brooks was actively resisting arrest and physically frustrating the officers’ efforts to remove her from the car, and that Brooks bore “some” responsibility for the escalation of the situation, the Court concluded that Brooks’ resistance did not involve violence towards the officer and she was not attempting to flee, so the situation was not urgent.  In further support of this conclusion, the Court cited the fact that the officers were deliberate and thoughtful in their actions, and that no evidence was presented that their presence was needed elsewhere.  Other facts important to the Court’s determination of excessive force, were that the officers knew Brooks was pregnant and that the officers tased her three times in less than one minute, purportedly giving her no time to recover and rethink her decision not to get out of the car.  Slip op. at 19020-23.

This decision begs the question: What were the officers supposed to do?  Let her go even though they had cause to arrest her?  Wait there for hours hoping she would finally comply and exit the car?  Forcibly pull her from the car by the arm, which could have caused more severe and permanent injury than a taser?  Chief Judge Kozinski, concurring in the judgment but dissenting from the determination as to excessive force, stated that Brooks was lawfully under arrest but noncompliant, leaving officers with no alternative.  Slip op. at 19040.  An arrest “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”  Id., quoting Graham v. Connor, 490 US at 396.  Chief Judge Kozinski strongly disagreed with the majority’s dismissive statement that Brooks bore “some” of the responsibility for what happened:

Brooks is completely, wholly, 100 percent at fault.  Had she behaved responsibly, she’d have driven away in a few minutes with no complications.  Instead, Brooks risked harm to herself, her unborn daughter and three police officers because she got her dander up over a traffic ticket.  The officers, for their part, were endlessly patient, despite being called liars and otherwise abused by Brooks.  They deserve our praise, not the opprobrium of being declared constitutional violators.  The City of Seattle should award them commendations for grace under fire.

Slip op. at 19042.  Judge Silverman, also concurring in the judgment but dissenting from the determination as to excessive force, added, “There are only so many ways that a person can be extracted from a vehicle against her will, and none of them is pretty... In this case, tasing was a humane way to force Brooks out of her car, causing her only fleeting pain and virtually no other harm whatsoever.”  Slip op. at 19046-47.

Still, the Ninth Circuit did ultimately determine that the officers were entitled to qualified immunity because the law in this area was not clearly established at the time of the incident.  In November 2004, there were three federal circuit cases dealing with the use of tasers: Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992); Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993); and Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).  None of these cases found a Fourth Amendment violation arising from an officer’s use of a taser.  Therefore, even though the Court did conclude that the tasing of Brooks constituted excessive force and violated the Fourth Amendment, the Court could not conclude that a reasonable officer would have known it constituted excessive force because there were no prior cases that would have given him or her that knowledge.  Slip op. at 19024-28.

Jayzel Mattos

On August 23, 2006, in Maui, Hawaii, Jayzel and her husband Troy had a domestic dispute, and Jayzel asked their 14 year-old daughter to call the police.  Officers Darren Agarano, Halayudha MacKnight, and Stuart Kunioka arrived and found Troy, who was approximately six feet three inches tall and 200 pounds, sitting at the top of the porch steps, smelling of alcohol, with open beer bottles lying nearby.  Officer Ryan Aikala also responded shortly thereafter.  Troy told Kunioka the he and Jayzel had an argument but nothing physical had occurred.  Troy then became agitated and rude as Kunioka continued to question him.  Kunioka asked to speak with Jayzel, and when Troy went inside to get Jayzel, Agarano stepped into the residence behind him.  When Troy returned with Jayzel, he became angry at seeing Agarano inside the house, and yelled at him to get out.  Jayzel had followed behind Troy, but ended up standing in front of him while on her way to the front door to speak with the officers.  Slip op. at 19010-11.

Jayzel agreed to go outside to speak with the officers, but before she could comply with the request, Aikala entered the residence and announced that Troy was under arrest.  Jayzel was standing in front of Troy and did not immediately move out of the way when Aikala approached.  According to Jayzel, as Aikala moved in to arrest Troy, he pushed up against Jayzel’s chest, and she “extended [her] arm to stop [her] breasts from being smashed against Aikala’s body.”  Aikala asked Jayzel, “Are you touching an officer?”  At this time, Jayzel was speaking to Agarano, asking why Troy was being arrested and asking everyone to calm down and go outside so as not to wake her children.  Then, apparently without warning, Aikala shot his taser at Jayzel in dart-mode.  Jayzel and Troy were both arrested - Jayzel for harassment and obstructing government operations, Troy for harassment and resisting arrest.  Slip op. at 19011.

The Mattoses sued the officers for violations of the Fourth, Fifth, and Fourteenth Amendments based on the warrantless entry into their home, the arrests, and the use of the taser on Jayzel.  The officers moved for summary judgment, and the district court granted summary judgment for the officers on all claims except the Fourth Amendment excessive force claim for the tasing.  The district court concluded it could not determine qualified immunity because there were material questions of fact as to whether the tasing was constitutionally reasonable.  Slip op. at 19012.  The officers appealed.

Just as in the Brooks matter, the Ninth Circuit held that a reasonable fact-finder could conclude that the use of force was constitutionally unreasonable and excessive.  The Court has previously determined, in Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010), that a taser employed in dart-mode “constitute[s] an intermediate, significant level of force.”  Slip op. at 19018, 19028, quoting Bryan, 630 F.3d at 826.  (The Court had not determined what level of force is used when a taser is employed in drive-stun mode, as it was in the Brooks incident, and declined to make that determination in the Brooks case due to an insufficient record as to the level of force.)  Slip op. at 19018-19.

The Court determined that, viewing the facts in the light most favorable to the Mattoses, Jayzel’s actions did not rise to the level of obstruction, as she claimed she was putting up her arm to stop Aikala from pressing up against her breasts, so “the severity of the crime, if any, was minimal.”  Slip op. at 19029.  Also important to the Court’s determination of excessive force was the fact that Jayzel was apparently unarmed, did not threaten the officers, and was trying to get everyone to calm down.  Slip op. at 19029-30.  With respect to whether Jayzel was resisting the officers’ arrest of Troy, the Court concluded that her resistance, if any, was minimal, as she was caught between Aikala and Troy and was trying to defend herself from physical contact.  “That being said...Jayzel did not immediately move out of the way to facilitate the arrest.  For the purposes of this Graham factor, however, we draw a distinction between a failure to facilitate an arrest and active resistance to arrest.”  Slip op. at 19030.  While acknowledging that domestic disputes are volatile and pose a potential threat to officer safety, the Court ultimately determined that it was unreasonable for Aikala to tase the “potential non-threatening victim of the domestic dispute whom the officers ostensibly came to protect,” particularly since Aikala gave Jayzel no warning before tasing her.  Slip op. at 19030-32.

Nevertheless, for the same reason as in the Brooks case, the Court concluded that the law with respect to this violation was not clearly established at the time of the incident, so the officers were entitled to qualified immunity.  Slip op. at 19034.


Consequences for law enforcement

The law regarding taser use has only begun to develop in recent years.  As it continues to develop it will impact and shape the use of this device that has now been adopted by most law enforcement agencies as a non-lethal force alternative.  While this case was a technical victory for the officers, in that they were awarded qualified immunity, the Court’s determination of excessive force in both incidents has set a precedent that affects what will be considered permissible use of a taser in situations where officers encounter a noncompliant subject.  Of particular concern is the decision in the Malaika Brooks matter, where it was undisputed that Brooks was actively resisting arrest and physically preventing herself from being extracted from her car, yet the use of non-lethal force causing no lasting injury was determined to be excessive.  This decision appears to have drastically reduced officers’ options for dealing with a physically noncompliant arrestee.

Judge Kozinski’s dissent summarizes the consequences of this ruling for law enforcement:

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force.  My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries.  This mistake will be paid for in the blood and lives of police and members of the public.

Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety.




Slip op. at 19046.

Stay Safe!

Mike Stone
Melanie Smith

Michael P. Stone is the firm’s founding partner and principal shareholder.  He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor and police attorney.

Melanie C. Smith is an associate with the firm and is a graduate of Loyola Law School, Los Angeles.

Reflections on Ohio vote to restore collective bargaining rights for public employees including police

American Police Beat
www.apbweb.com
November 9, 2011
By Mark Nichols

    If you work for Koch Industries or any of their tentacle organizations like Americans for Prosperity, the Cato Institute or the American Legislative Exchange Council (ALEC), yesterday was as big a defeat as the 2010 Congressional elections were a victory.

    The good people of the Great State of Ohio, in a stunning rebuke to the anti-union agenda of Governor John Kasich, overwhelmingly voted down legislation designed to kill public sector unions by a roughly three-to-one margin.

    While there were many significant votes across the country yesterday, none are more important than the defeat of SB-5, also known as issue 2. The victory for middle class teachers, cops, firefighters and other public sector employees is seen by many as an indication that similar legislation in states like Michigan, Florida, New Jersey and most notably Wisconsin are likely to be challenged by voters.

    Also likely to be challenged are the state officials that have enacted union-busting legislation- most notably Wisconsin Governor Scott Walker.

    Here’s what the people of Ohio decided went too far- SB-5 would have abolished the collective bargaining rights of employees of the state, of any agency, authority, commission, or board of the state, and of any state institution of higher education. It would have prohibited the state, agencies, authorities, commissions, and boards of the state, and a state institution of higher education from collectively bargaining with its employees. The legislation also would have abolished the Office of Collective Bargaining.

Kasich saw the writing on the wall months ago when poling indicated that voters were likely to vote his plan down and made desperate pleas for the people who’s right to bargain for wages and benefits he was trying to eliminate to negotiate with the governor.

And perhaps if the legislation had been more restrained, focusing on pension reform rather than throwing the baby out with the bath water and just outlawing unions, labor leaders might have taken mercy on Kasich and started good faith negotiations.

But as the saying goes, you mess with the bull- you get the horns. Labor leaders from all walks of life refused to give Kasich an “out,” by affording him the courtesy and respect he denied them when he passed SB-5 without negotiations.

Kasich, who famously once called a police officer an idiot for giving him a ticket, is now manning the damage control pumps.

“It’s clear the people have spoken,” a forlorn looking Kasich said at a press conference. “My view is when people speak in a campaign like this, in a referendum, you have to listen.”

Another way of expressing that sentiment might be, “I tried to sneak one past my constituents on behalf of corporate interests and my financial backers but I got my butt kicked. Please don’t kick me out of office.”
Wisconsin Governor Scott Walker, another union buster, is so worried about the increasingly likely possibility of being recalled that Walker’s own supporters filed the first recall petition. Why? Because under the law once a recall petition is filed the target can raise unlimited cash to fight off the challenge.

Like Kasich, Walker has connections with the billionaire Koch Brothers that could be tapped to throw millions at undermining efforts of state voters to replace their own governor.

But that’s what’s so significant about the Ohio vote yesterday. It’s a lesson in the timeless strategy of strength in numbers. If Americans for Prosperity had just SB-5 to worry about, they very well may have been able to outspend organized labor in the SB5 campaigns.

But the Koch Brothers want an SB5 and even more drastic legislation enacted in every state in the country. As a result they have to spend their political money accordingly and spread it evenly through their PACs and think tanks. That means that organized labor can outspend, out-lobby and out-campaign groups like the Chamber of Commerce and ALEC at the state level if there’s enough popular support.
At the federal level things are more complicated. Americans for Prosperity says it plans to spend in excess of $200 million on the 2012 election.

Pundits and observers disagree about whether the vote in Ohio represents a shift away from the trend of conservative dominance in public policy and state legislation seen in recent years.

But what’s becoming crystal clear is that the vast majority of Americans, at least in Ohio, didn’t fall for the lie that public sector workers’ wages and benefits are as big a threat to the economy as things like the deregulation of the financial sector and the fact that many billion dollar multi-national American corporations like GE not only pay no federal income taxes- they actually get a check from the IRS.

Atlantic Monthly review of new book on NYPD and drop in crime

The City That Became Safe
By Franklin E. Zimring
Oxford

In the 1960s, ’70s, and ’80s, New Yorkers lived in intense, growing—and entirely reasonable—fear of being robbed, raped, or killed. But in less than a generation, their city has undergone the largest and longest decline in street crime that any major metropolis has ever experienced. Rates of homicide, stranger assault, robbery, and burglary have fallen 80 percent or more—an accomplishment that experts would have thought impossible 30 years ago. In a feat of clear-eyed analysis, Franklin E. Zimring, a law professor at Berkeley, assesses the causes of this unprecedented public-safety achievement. He unpacks his evidence meticulously, synthesizes disparate and difficult materials economically, and addresses counterarguments methodically—and in the process explodes myths and shibboleths embraced by both the left and the right.

Piecing together the demographic data, Zimring shows that the city became safer, but not because of any shift in the ethnicity or income level of its population. In fact, New York’s racial and ethnic profile changed in ways that would normally point to an increase in crime. Moreover, although he’s a political liberal, Zimring demolishes the proposition that a drop in crime depends on an improvement of underlying social and economic conditions. New York’s sustained, broad, and deep drop in violent crime occurred despite the city’s glaring economic inequality, its stubbornly unyielding poverty, educational deficiencies, number of “fatherless high-risk youth,” and the “social isolation” of its underclass.

But if Zimring’s assessment will vex knee-jerk progressives, it will equally irk law-and-order types. Violent crime dropped precipitously in New York, even as the sale and use of illegal drugs remained stable. The city is winning the war on crime without scoring the smallest victory in the war on drugs. And New York achieved its stunning success even as it let a relatively large number of criminals run free on the streets: the rate at which the city filled its jails and the state’s prisons is well below the national pattern.

Policing, it turns out, is the crucial factor in the city’s crime decline—but why, exactly? Zimring can’t put his finger on which specific techniques, strategies, and programs worked. Almost certainly the NYPD’s growth, management reforms, and use of statistical analysis (the so-called Compstat program) helped. Incontrovertibly, Zimring says, the NYPD’s focus on pacifying “hot spots”—areas with long and deep histories of violent crime—and eradicating open-air drug markets stanched crime. But these tactics involve very aggressive street policing, which is a broader strategy entailing a lavish number of “stop and frisks” and misdemeanor arrests. Although New York’s police made half a million such stops and 200,000 such arrests in 2009, Zimring, a scrupulous scholar, is willing to go only as far as the evidence will take him—and he has stated cautiously that this strategy “is the biggest and most costly police change with an unknown impact.” I infer that Zimring suspects that these aggressive street stops were in fact a decisive weapon in the NYPD’s arsenal—and that he’s troubled by that suspicion.

Let’s not pussyfoot: the line between aggressive policing and bullying is very fine, and regardless of the sensitivity of the police and the forbearance of the citizenry, it’s a line that’s perforce crossed daily. Another term for the misdemeanor arrests that Zimring discusses is pretextual arrest. Policing is at best a blunt instrument, and those on the receiving end of police aggressiveness are almost always those with the least recourse to protect their rights and their dignity.

But just as the costs of aggressive crime control are disproportionately borne by the disadvantaged, so too have been the benefits: the reduction in crime is one of the few public goods in New York—that global center of capitalism red in tooth and claw—that is truly progressive, benefiting disproportionately the poor and vulnerable, who need it most.

This is no joke: county moves to make inmates into firefighters to save money

It was really only a matter of time. In Camden County, Georgia there’s a proposal being floated to turn convicts into firefighters. Welcome to the new America.
According to an article on Jacksonville.com, the inmates-to-firefighters program is one of several money-saving options the Board of County Commissioners is looking into.
The idea is to keep county residents’ fire insurance costs down.
Some might think a county government might be pretty desperate to propose such a measure but the Board of County Commissioners says the inmate firefighter program could save as much as $500,000.
There are some critics of the plan, including the real firefighters who would be asked to trust convicted criminals to battle fires with them.
There are some extreme situations where inmates have been used as firefighters in the past. California inmates fought fires in the 1940s, when World War II caused a firefighter shortage. But making inmates first responders as a budget solution is something entirely new.
Traditionally, the low-cost labor performed by incarcerated individuals is relegated to the same kinds of work performed by illegal immigrants. In some states that have instituted get-tough state immigration laws, inmates are already performing the tasks frequently associated with undocumented workers or illegal immigrants.
The Camden program would put two inmates in each of three existing firehouses and they would respond to all emergencies with the actual firefighters.
Several media reports have referred to the actual firefighters as “traditional firefighters.”
The inmates would not be guarded.
For the best indication in terms of just how bad an idea this is, consider the following. In order to turn inmates into firefighters you first have to turn firefighters into corrections officers.
Under the wacky Camden County plan, the “traditional” firefighters will undergo training to guard the inmates.
     County Public Safety Director Dennis Gailey says that one “traditional” firefighter with correctional training can supervise up to three inmates and also help the county make its books look like slightly less of a disaster.
Gailey said there is a lot of contention among local firefighters about working alongside inmates. Geeze, ya think?
One firefighter, Stuart Sullivan, spoke to county commissioners during a recent meeting and pleaded with them not to wreck the department he is so proud to be a part of.
     Sullivan asked the commissioners if they would favor inmates coming to their homes for an emergency in the middle of the night.
"If you vote to bring these inmates into our working environment, you jeopardize not only the employees' well-being, but the safety of our citizens," he told the board.
But in our current race to the bottom, particularly in rural areas with low tax bases and fierce opposition to tax increases, reputations, public safety and tradition are secondary concerns at best. Right now the mantra is, “cut spending to the bone and pray it’s not a disaster.”
County Commissioner Jimmy Starline did his best to sell the program using unnamed sources that say many inmates could turn into hard-working dedicated public safety professionals.
"I've been told these inmates are very enthusiastic about being a firefighter. It's an opportunity to break that cycle," he said. "This is not like a chain gang. Life at a fire station could be a whole lot more pleasant than life in jail."
In Starline’s view, apparently turning cons into smoke eaters not only saves the county money, but also makes like more pleasant for criminals. Sometimes you just have to marvel at the political mind.

Mitigating negative coverage of in-custody death

Could Agency Have Done a Better Job Mitigating Negative Coverage of Officer Indictments for Murder and Manslaughter?

Staying Ahead of the Story in the Internet Age

By Neal Baldwin
American Police Beat
November 2011

Recently, the Fullerton (Ca) Police Department has been in local and national news in regards to an in-custody death. Almost all of the publicity has been negative. The incident has left the department damaged and it will take a long time for the damage to be repaired. 

As a retired Fullerton P.D. officer, I have followed the story closely.
 
It all began on July 5, 2011 when six Fullerton Police officers took a mentally ill, homeless man (Kelly Thomas) into custody. Exactly what happened during the scuffle that ensued will be sorted out later in court.  What isn’t in dispute is that at the end of the struggle, Kelly Thomas was having difficulty breathing. He was rushed to the hospital and placed on life support. Several days later he was removed from life support and died. After a ten week independent investigation by the Orange County District Attorney’s Office, two of the officers were indicted. One for murder and the other for manslaughter.
   
The purpose of my writing this article is not to speculate on what happened that night. I do not intend to pass judgment on the actions of the officers involved nor the District Attorney’s decision to indict.  Rather, I want to look at how the Fullerton Police Department handled the press in the aftermath of Kelly Thomas’ death to see if there are any lessons we can all learn from.
 
In the weeks following the incident, the Fullerton Police Department was the object of extremely negative press coverage. 

For example, several weeks after the incident, I did an Internet search using the words Fullerton Police  Department  and Fullerton Police beating.  There were over forty hits and every one of them cast a very bad light on the Fullerton P.D.  I could find nothing of a positive nature.  This raises the question, could some of this negative press been avoided, or at least minimized?

Before we explore that question, let us start by talking about how things worked in the “good old days”.  Not that many years ago, it was a commonly held belief that the best way to handle a negative story in the press was to ignore it.  When asked, the department simply said “no comment”, and we never gave our version of the events.  The theory was that anything the department said only added to the life of the story and kept it on the front page even longer. By refusing to comment, we hoped that the press (newspapers and television) would soon grow bored and then move to another, newer story.  For the most part, this approach worked well and did so for many years.  But no more.

The old rules no longer apply. There is now a new set of rules and these new rules are a direct result of new technologies. 

We now live in the age of FaceBook, Twitter, YouTube, and the Internet.  In addition, everyone carries a cell phone and every cell phone is a video recorder. This combination of new technologies has completely altered how news is now gathered and disseminated.  An individual or a group no longer needs to convince a local newspaper or TV station that a story is worth running. 

They can simply “self-publish” their story by skipping over the main stream media and running the story themselves on the Internet, often attracting tens of thousands of viewers in a matter of days. 

They can create chat rooms that disseminate information, much of which is unfounded rumors.  They can post pictures or video that may not accurately reflect the facts of the case.  In effect, they “self-publish” the story and then spin the story the way they want it to go.  In this new world, the “old media” is no longer in charge of the media.  It now belongs to anyone with a computer and that includes a lot of people with personal agendas, including some who want to damage the police.
        
In response to this new paradigm, police departments can no longer sit back while a story spins out of control across the Internet (sometimes in just a matter of hours). To do so is to invite disaster. It places us in a position where we are reacting, as opposed to being proactive about important stories. 

By not being proactive, we put ourselves in a position of constantly playing “catch-up” in the news. This drip, drip, drip of false accusations, followed by official denials, makes us look like we are hiding something or at the very least, withholding embarrassing information.
 
In this new world, law enforcement agencies must take an immediate lead when potentially controversial events occur. First, someone from the department must make some type of public statement in front of the cameras.  If possible, this should occur the day of the event and in all cases, no later than the following day (a written press release is no longer enough).  Second, the more controversial the event, then the higher the rank of the person going on camera. (in most cases, this means the Chief or Sheriff). Third, put out a press release that same day.

Your press release should accomplish all of the following.  (1) Tells the public that the department is aware of the situation and recognizes its controversial nature.  (2) Assures the public that the department will be conducting an immediate, thorough, unbiased investigation into the event.  (3) If you decide to bring in an outside agency to conduct an independent investigation, be sure you’re the one who makes that announcement.  Also, make it clear that you will be fully cooperating with the independent investigators.  (4)  Promise the public that if the investigation uncovers any wrong doing on the part of officers it will be dealt with immediately.  (5) Keep in mind that the Chief/Sheriff can express a strong concern over the incident without pre-judging the officers’ actions. ( “…What I saw on the video greatly concerned me also and that is why I ordered an immediate investigation..” )
 
Both the on-camera statement and the press release should be similar in nature.  Both are designed to “calm” the public while helping maintain the communitys’ confidence in the department.  Simply put, the public needs to hear from the Chief/Sheriff that everything is being handled and their concerns are being addressed.  
By following the above suggestions, an agency can avoid the pitfalls of letting a story overwhelm them.  However, I believe that agencies can do even more.  Rather than resist this new world of technology, I believe that police departments should embrace it.  Departments should join the new world of social media and take advantage of all the opportunities for two-way communication it has to offer.
  
Rather than having a web site that simply contains generic information about the department (a computer based brochure), have one with a chat room where people can ask questions and receive timely answers.  A chat room where damaging rumors and false information can be corrected before it takes on a life of its own.  One that makes us look like we have nothing to hide.

In addition, when the Chief of Police does an on-camera interview, post it on YouTube.  For many young people, the social media is the only place they get their news.  When the department puts out a press release, post it on the Internet for everyone to read.  Don’t just send it to the major news outlets.

Another idea might be allowing the public to follow the Chief/Sheriff on a Twitter account.  What better way of showing the public that the C.E.O. of the organization is aware of and handling breaking news events.  What about the Chief/Sheriff having a FaceBook page?  It could humanize the Chief/Sheriff while providing a source of two-way communication with the young people in the community.
  
Some of my suggestions about using social media may make you smile.  The Chief on Twitter?  Please!  But when you’re done smiling, know this.  The story is going to get out one way or the other.  We can be in front of it (and to some degree control it) or we can be behind it and completely lose control.

 I remember my range master saying that the first person to get a round off in a gun battle usually wins. I think the same is true of the battles that take place in the press.  Let’s start being first.          

Lt. Baldwin retired from the Fullerton Police Department in 2005. He was a police officer for thirty-two years. He holds both a B.A. and M.A. degree from California State University, Fullerton where he teaches in the Political Science/Criminal Justice Department. He can be contacted at nebaldwin@fullerton.edu

The new surveillance state means the police are being watched and recorded too

American Police Beat
Editorial: November issue, 2011
www.apbweb.com

The new surveillance state
Everyone is being watched, tracked, monitored, including the police

In the up and running American surveillance state everyone is being watched, tracked, monitored and recorded. And if you thought police officers were the exception to the rule, think again.

We currently live in a society where the citizenry is under constant surveillance. Because of radical changes implemented through legislation like the Patriot Act, every email, financial transaction and phone call made by Americans is monitored, tracked and stored not only by the law enforcement and intelligence communities, but by corporations as well.

If there’s anything in the way of a backlash from those changes, it could very well be the increased surveillance of police officers in the performance of their duties by citizens.

If you’ve been following the Wall Street protests, a lot of the video shows cameras in the hands of the majority of the protestors and cops as well.

The law enforcement culture is not used to this kind of exposure and generally reacts with hostility to the notion that citizens should be able to film police.

This rubs a lot of civilians the wrong way for a variety of reasons. When a municipality and a law enforcement agency install closed circuit cameras in a high crime neighborhood or housing project, there is usually some criticism and cries of “big brother.” The police response is invariably, “Well if you’re not doing anything wrong, what are you worried about?”

The issue of civilians taping cops on the job has turned that question on its head.
The fact of the matter is that citizens taping cops, and the sometimes negative publicity those incidents produce, are going to increase exponentially in the future.

It’s a rock and a hard place for law enforcement professionals. On the one hand, cops understand that a society where the state can monitor every aspect of the lives of citizens without oversight in the name of “fighting terrorism,” has the potential to devolve into some kind of nightmare described in the works of great authors like George Orwell and Franz Kafka.

On the other hand policing is hard enough without looking over your shoulder every two seconds to make sure no one’s recording them and likely interfering with an arrest or investigation.

The question for law enforcement and the public alike is one of balance. How do we maintain the freedoms guaranteed all Americans in the Constitution and Bill of Rights without exposing law enforcement personnel and agencies to risks in the field and in the courts?

These issues need to be addressed quickly and thoroughly because while law enforcement culture is slow to change, technology and its impact on modern life are not.

One important thing to keep in mind is the fact that these issues and conflicts are largely the result of consumer technologies like cell phones equipped with video recording capabilities.

Thirty years ago anyone that said someday soon that 90 percent of Americans will all be able to record video at anytime would be considered crazy. Today it’s a reality.

Whether or not it’s a good idea to charge civilians for taping cops using laws designed for prohibition era policing is a good idea is largely beside the point. So too is the issue of intent on the part of the individual taping a police officer in the course of their duties.

Those issues will be resolved in scores of court cases currently in the pipeline and for years to come.
The critical thing to consider here is the fact that technology and people’s ideas about privacy are changing rapidly.

Law enforcement has to adapt to those changes with greater speed if we’re going to avoid gridlock in the courts with respect to issues of surveillance and counter surveillance.

Eulogy for NYPD Captain Barry Galfano by Roy Richter, President, Captain's Endowment Association

This eulogy was delivered at Barry Galfano's funeral service by Roy Richter, the president of the Captain's Endowment Association. You can read more about Barry's phenomenal career with the NYPD and his heroic actions on September 11 and the weeks and months afterwards in the book, Brave Hearts: Extraordinary Stories of Pride, Pain and Courage. www.braveheartsbook.com. He paid for his courage with his life.

My name is Roy Richter and I am the President of the NYPD Captains Endowment Association. I recently had the privilege of working with Barry to create a video that tells Barry’s story in his own words.  

When we interviewed Barry for the video this past March we asked him “How do you want your family to think of you?

Barry responded “I want them to realize that I was a fighter.  Never give up.  Set goals and set out to achieve them, and never accept an answer that isn’t right for you.  And I tell my kids – As long as you’re happy, as long as you made the decision with all the facts that you have.  That’s what life is about.”

What I am about to read is Barry’s letter to Cynthia Brown who interviewed Barry in 2008 for the book Brave Hearts: Extraordinary Stories of Pride, Pain and Courage.

“In His Own Words”

Since my interview with you in 2008 my life has changed in so many ways. I was diagnosed with small intestine cancer in November 2008 and had a 9 hour surgery to remove a tumor that was completely blocking the opening. The doctors also removed a portion of my small intestine and a duct that connects to the pancreas. I needed a second surgery to stop fluid from draining into my body and to close the staples and sutures that had ruptured when they did a C.T. scan of my body.

I was in the hospital for a total of 25 days and lost 30 pounds. I left the hospital on December 9, 2008. It took 2 months for my surgery to heal and my intestines to start working normal again. By now I had lost a total of 40 pounds. I had a P.T. scan in February 2009 that revealed the cancer had metastasized to my liver and right lung and I began chemotherapy in February. I had six months of chemo and then my immune system crashed and I was hospitalized for a week in North Carolina while on a family vacation. When I returned my doctor stopped the chemo and said I needed to regain my strength and immune system back.

For the next six months I worked out and gained 30 pounds back and regained my immune system but when I had another scan in December, they found 5 new tumors in my lung. I then went to several doctors to get other opinions and was told that chemo would not prolong my life and there is no cure for intestinal cancer.  Once it spread to my liver and lungs there isn't much they can do for me. Instead of giving up I got MAD and started doing my own research into natural immune system boosters, and natural herbs and mushrooms, and other supplements that have shown some success in shrinking tumors.

My biology degree finally became useful and I (red) read hundreds of science journals and medical studies on various natural supplements. In January 2010 I started using about 25 to 30 different supplements and concentrated on building my body and my immune system up to keep my cancer in check.

I had another scan in February and it indicated that the tumors in my lung were still there, but two may have shrunk a little bit. The good news was that my intestines and liver were still clear - so I took it as a success and really hit the supplements hard since then. I take six different types of mushrooms, ten types of herbs, and a total of thirty types of supplements and believe that when I go back at the end of May for my next scan - that my tumors will be gone or smaller than they were.

I just ran the NYPD - Police Memorial 5k on Sunday May 16th and was able to run the complete 3.1 miles. Last August I barely was able to walk the Sgt. Ferguson Memorial run over the Brooklyn Bridge and almost passed out afterwards. In May of last year I couldn't walk up a flight of stairs in my house without passing out.

So knowing that I can run three miles and workout five days a week has me believing that I will beat cancer down and show others how to take control of their bodies and fight it naturally. When the doctors told me that there is nothing that they can do for me because I have incurable stage 4 cancer, they awoke the fighter in me and I knew that it was up to me to save my life. For twenty-five years as a cop I felt that I had to save the lives of others. Now it is my life that I need to save and I'm NOT going down without a fight.

I have never lost hope.  I never felt "why me".

I only felt that it was a blessing to have cancer because it made me set priorities and spend quality time with my family. I am closer with my family now and I truly believe that I am a better person today than I was before I got sick. I have faith in God, faith in my family and friends, and faith in myself. I fear nothing and believe in the saying, "that which does not kill you, makes you stronger".

On behalf of the entire NYPD family THANK YOU Captain Barry Galfano for your service.

Barry Galfano opens up about the enormous stress suffered by first responders on 9/11

From the book: Brave Hearts: Extraordinary Stories of Pride, Pain and Courage

NYPD Captain Barry Galfano opens up about the stress suffered by first responders to the attacks of September 11, something he discovered only after intensive work with a therapist. Excerpted from Brave Hearts (braveheartsbook.com) by Cynthia Brown

In 2006 Galfano retired from the NYPD. It was not long after that before the emotions he thought were buried came flooding back.” I was exercising a lot and my new job as security director for the United Nations Plaza complex was demanding. I was busy. But every time I heard or saw anything about 9/11, I would completely break down. That’s when I decided to seek professional help.”

“It was during my visits to the counselor that I began to understand what we had all been through,” he said. “A sudden death, or bad accident or act of violence is one thing. It’s usually over in an instant and you can slowly recover with time. But there were a lot of us who worked at Ground Zero walking that pile every day, looking for remains of our friends who died, finding more body parts or even just small pieces of tissue, then calling the medical examiner to come and take it away. We had to deal with it over and over again.”

Barry’s therapist told him that to her knowledge there had never been an incident where first responders had to go back to the scene of a terrible crime where thousands of people died, day after day, week after week, month after month. The endless wakes and funerals only added to the extended emotional trauma. Barry attended over forty funeral services for close friends and colleagues in those first months after the attacks. There was no way to escape from the sadness and grief so he buried it deep inside.

In talking it out with the therapist, Barry began to understand the stress he was under had taken its toll on his family. His decision to sleep at Floyd Bennett Field so he could be closer to the site, meant he did not return home for weeks. He shut out his wife and children by not talking to them about what he was going through. The few times he did go home when he had a day off, things did not go well.

“I remember my first day off,” Barry said. “I couldn’t sit still. I kept calling my guys asking them if they found anything. My wife kept staring at me while I was on the phone. After a few hours she told me to go back to work. She said it was obvious it was where I wanted to be. So I left and went back to the site. It was my first day off and I was so restless I could not make it through a whole day at home.”

“The bonds we formed over those months working at the site were extremely close but they worked against us too,” Barry said. “On our days off, we didn’t know what to do with ourselves.” 

When he did go home, his wife kept after him to talk to her, but he just couldn’t open up. Ultimately, their marriage did not withstand the stress and Barry and his wife filed for divorce.

New Jersey Police Chiefs Speech

June 22, 2011
Speech for New jersey Police Chiefs Association

Thank you so much for inviting me to speak to you tonight. It’s the first time I have been asked to talk to such a prestigious group and I am truly honored.

First I’d like to tell you about my journey that landed me here tonight.

In the mid 1970s, I accepted a part-time job working on an early community project with the Boston Police Department. My job was in a very busy police station in one of the most crime-ridden areas of the city.

At that time there were very few women or minorities on the force and it seemed like every one of the two hundred officers assigned to the station where I worked were very outspoken about their conservative views on everything from the Vietnam War to women’s rights to homosexuality. One officer actually told me he didn’t think “girls” should have driver’s licenses.

It was quite a culture shock for a me – an ultra liberal-minded young woman who came of age in the 1960s - to find herself plopped down in the middle of this strange world.

I worked there for three years, helping to organize meetings between residents and the cops who patrolled their neighborhoods.

During that time I saw first hand what all of you do for us - the constant efforts to protect us against armed assailants, drug dealers, drunks, gangs, the homeless, truly crazy people, and a whole range of garden-variety crooks.

I was continually amazed at the restraint, humor, humanity and most imnportant integrity those incredible people showed as they went about their difficult tasks.

I saw more acts of human kindness and sacrifice in that police station than I had ever witnessed among my affluent, liberal neighbors in the Cambridge neighborhood near Harvard University where my husband, Jim, was a professor of economics at the Kennedy School.

One time I came back to the station and found an older officer sobbing — the kind where your whole body heaves. He had just returned from a call where he found a three-month-old baby dead in a bathtub.

The day of Christmas Eve the first year I worked there, one of the guys took home a particularly violent eleven-year-old boy so he wouldn’t have to spend Christmas Eve alone in a cell. The boy was black. The officer, who had six children of his own, was white.

Then there was the cop I saw over in the corner of the roll call room reading the book Against Our Will: Men, Women, and Rape, Susan Brownmiller’s seminal history of the crime of rape, after he responded to a brutal sexual assault of an older woman near a church. When I asked him about it, he seemed a little embarrassed. After all Susan Brownmiller was a radical, militant 1960’s feminist. He told me, “I’m just trying to figure out why it would happen. My daughter told me to read this book.”

I have so many memories and experiences I could share but by far the most memorable  and a real watershed experience for me was an incident that captured the immoral and even dangerous ways the press, politicians and others twist and distort something the police were forced to do with the best information they had at the time, all in a split second of time.

It was just a week after two white Boston cops shot and killed a 12-year-old African-American boy. The press went wild with the usual stories – cops gun down unarmed teen, family and friends remember their son and friend, etc. Department was under tremendous pressure.

One of the things they did was organize a community meeting in a neighborhood where the boy lived. The city was suffering from the blow back of court ordered busing to integrate the schools and the racial situation was very tense. The news reports indicated violence was imminent.

Expecting there might be trouble, the department sent more than the usual contingent of uniformed officers, along with a sergeant, lieutenant and the commander of the district. As  this entourage entered the church basement – lit must have looked like some sort of armed invasion - everyone in the room stood and applauded.

The police were totally dumbfounded.

As the meeting progressed, we learned the youngster who died had repeatedly assaulted and robbed people. He targeted the most vulnerable -  young kids and the elderly.

At some point one of the people at the meeting stood up and actually read a list of the other bad kids in the neighborhood. He wanted to know if the cops could take them out too. The rest of the time that evening was spent with the police explaining why that was not an option.

The media, who was there in force,  never reported that any of this took place. To me this seemed like an interesting turn of events. Who knows why they didn’t put that in their news stories.

You all may have some interesting theories about that.

After those three years in that station, I knew I wanted to do something that would help the law enforcement profession. Several years later when I founded American Police Beat, my goal was to create a publication so  cops around the country  could communicate with one another about the most pressing issues affecting their personal and professional lives. Today, 18 years later, American Police Beat is the leading law enforcement magazine in the United States.

And as many of you in this room know, five years ago I began working on a book about police work which was published this past November. My mission with Brave Hearts, Extraordinary Stories of Pride, Pain and Courage,  was to introduce Americans to all of you wonderful people and let them know about the amazing job you do for us and the price you pay to do it.

So  . . .   for someone like me . . .  who has spent my life advocating for you and doing my best to spread the word about the tremendous job you do for your communities and country, you can imagine how enraging it has been for me to watch the powers that be scapegoating you all for our current economic problems.

Your pay and benefits, which have absolutely nothing to do with the current mess we are in, are being blamed for the recession, the sub prime mortgage crisis, your city’s bond ratings and everything in between.

A lot of people think the war on police officers, fire fighters and teachers is a Republican effort and certainly when you look at the political party of Chris Christie along with the governors of Wisconsin, Ohio and Michigan, it’s true there’s no Democrats.

But I believe there’s a larger truth here. 

It certainly would make all our lives easier if there was one political party that took public safety and the standard of living for law enforcement professionals seriously and another party that did not.

Then the choice would be easy.

Sadly that’s just not the case.

What we have here is more like a class war. It’s the top two percent of the richest  people in the country versus everybody else. In a representative democracy like we think we have in the United States, the richest two percent of the population does not get to call all the shots. But increasingly that looks like the reality we’re dealing with.

I think that the safest way for all of us to approach politics these days is to just assume that anyone running for public office who wins ends up with another boss – and it’s not you or me.

I say forget all those cliches,  “Democrats are big government spenders,” or “Republicans are serious about the national debt.” 

Most of what we are seeing is a dog and pony show that’s increasing cultural divisions or just plain distracting us so we can no longer recognize our common interests.

Somehow we have to find a way to see past party labels, and all the screaming and bombast, and take a look at the deeper, darker alliances that are changing the very fabric of American life.

The evidence that were are at each other’s throats rather than working together to take back our country is everywhere. In my state, Massachusetts, a place that routinely votes to raise taxes to improve essential services like schools and public safety, the Democratically controlled State House of Representatives just outlawed collective bargaining over health care for state employees.

Granted that’s not as egregious as what we’re seeing in other states, but this is pro-union, liberal Massachusetts!
   
There is some good news here. And that is that I believe  you guys are well suited for the battle ahead.

I think it’s pretty obvious that one of the things the powers that be might not have taken into consideration before they decided to scapegoat you for the recession and our lingering financial crisis by  portraying you as budget-busting welfare queens who are cashing outrageous pension checks every month at taxpayer expense, is the reality of what you do.

Your work is challenging on levels that people outside the profession can not understand.

To be sure you do have victories.

Abducted kids are located and reunited with their families.

Violent criminals who terrorize communities are investigated, charged and prosecuted.

Dangerous drugs on their way to neighborhoods are intercepted and destroyed and the dealers are arrested.

But there’s the losses and defeats too. Three-time losers on parole gun down fellow officers in cold blood. Babies choke to death after swallowing a bottle cap as responding officers race up 15 flights of stairs in an apartment building with a broken elevator. Convicts released early from jail return to wreak havoc on communities because of budget cuts or cutting a deal with a prosecutor.

So much of your job is about sadness and loss.

But no one knows better than all of you in this room tonight that winning is not what a career in public safety is about.

Despite the seeming futility of the war on drugs, the complications involved in arresting someone like a mayor’s nephew and the revolving door of the criminal justice system, you show up day after day to do the work.

A lot of times it’s rewarding. More often it seems frustrating — like the Greek king Sisyphus who was forced for eternity to push a rock up a steep hill only to watch it roll back to square one.

But like Sisyphus, people who have chosen a career in law enforcement have perseverance and commitment. That’s why you’re all built perfectly for the fight ahead and why you will persevere against the Chris Christie’s of the world.    

The assault by wealthy corporate interests on the rights of the American middle and working class did not start with the elections of last November and it won’t end in 2012.

For many people, seeing such powerful individuals and entities amassing against their interests is just too overwhelming. How can a mother of three making $40,000 annually compete with billionaires and all their think tanks and propaganda? It’s not hard to understand why some would just give up the fight and hope for the best.

But you guys are different.

You hold grudges.

You take being lied to seriously.

It doesn’t matter if it’s a street fight or a war for the hearts and minds of America,  you definitely aren’t the folks people should think about going into a long protracted battle with.

Maybe the Governors of Wisconsin, Michigan, Ohio, and your very own Chris Christie here in New Jersey don’t really know any law enforcement professionals and simply don’t understand.

That might be why they figured that once the ball got rolling, cops would just hang their heads, tell their kids there’s no money for college and essentially just give up.

But law enforcement people are fighters.  You  know when you’re being lied to. If the Koch Brothers and their hired guns like your governor thought they could just screw you over and fly off on their private jets, I believe they were sorely mistaken.

This battle is not  a sprint. It’s a marathon. And like the Greek philosopher Persius said, “He conquers who endures.”

American Police Beat will do everything we can to help and support you. So please free to call me anytime if there is something I can do.

In parting I would like to say that I hope you never forget that all of you have dedicated yourselves to the most noble profession. You are the people who bring justice to those who want to harm us.

You are the lynch pin of our great country and our democracy.

The right to be safe is our first and most important civil right and that’s the right you give to all of us at such great risk and cost to yourselves.

Without safety which is what you do, we really don’t have anything else.

You do the most important job and the toughest job out there.

Don’t you ever forget that.

American Police Beat co-sponsors ground breaking event

John Jay College hosts first of a kind meeting between law enforcement and the media

Social media is having a big impact on the law enforcement profession in a myriad of ways both positive and negative. A day long seminar on the subject co-sponsored by American Police Beat and hosted by the John Jay College in New York City provided an unusual opportunity for law enforcement leaders and representatives of the media who cover the police to talk about their respective missions as well as conflicts and misunderstandings that often characterize relationships between the two groups. Long considered the nation’s premier school of criminal justice, John Jay added a few feathers to its already crowded cap by creating an opportunity for the media and the police to sit down at the same table and talk it out. Below is Cara Tabachnick’s (managing editor of The Crime Report) write up on the meeting.
— Cynthia Brown, Publisher, American Police Beat

Public Safety and Crimefighting in the Age of Twitter
By Cara Tabachnick, Managing Editor
The Crime Report (the official online publication of the John Jay College)
May 18, 2011

Law enforcement agencies around the country are increasingly reaching out to the public through social networking tools. But navigating cyberspace poses new challenges for cops—and the reporters who cover them.
If the nation’s law enforcement agencies are not using social media networking, they’re missing out on a key tool for connecting with the public and the press, one of the nation’s top police experts warned yesterday.
“Either listen in and join the conversation, or they get to talk about you behind your back,” said Capt. Mike Parker, who heads the media and marketing efforts of the Los Angeles County Sheriff’s Department―the largest sheriff’s department in the world.
Parker was addressing a unique roundtable attended by over 40 New Jersey law enforcement officials and journalists held at John Jay College of Criminal Justice in New York.  
The special event, hosted by John Jay’s Center on Media, Crime and Justice and the Intercollegiate Studies Institute, was aimed at helping police and journalists navigate the brave new world of 24/7 crime news coverage in the “Age of Twitter.”  The conference was co-sponsored by American Police Beat magazine.
Social media has drastically changed the landscape for law enforcement and the media who cover them, observed  Nancy Kolb, senior program manager for Community Safety Initiatives at the International Association of Chiefs of Police (IACP), which recently established a Center on Social Media to assist law enforcement agencies in establishing policy guidelines for the use of social networking tools.
More than 1,800 police agencies are now listed in the IACP’s online directory, Kolb noted, adding that as police increasingly use social media for criminal investigations and for reaching out to their communities,  law enforcement managers need to develop proper strategies for their use.

Both Kolb and Parker noted that there were many examples of police officers improperly or unwisely using personal Facebook or Twitter in ways that reflected poorly on their agencies―which makes it imperative for police leaders to establish clear guidelines.
Nevertheless, said Kolb, “social media is not a fad.”
“It is not going away,” she added. “Now, the community expects it.”
Kolb listed some of the ways these tools could be beneficial for agencies:
* Vetting potential recruits;
* Cutting down the number of calls to dispatchers;
* Updating the public and media constantly without being tied 24/7 to a desk.
Parker, who has pioneered the use of tools such as Twitter and Facebook for the Los Angeles County Sheriff’s Department, pointed out that social media represents one of the “greatest opportunities” for modern policing strategy in many years.
And it’s hard to avoid if police want to make headway in today’s crowded information landscape.  Twitter gets more than 300,000 new users every day. The average Facebook user has 130 friends and is connected to 80 community pages, groups and events.  Approximately 250 million users log on to Facebook at least once each day.
In the process, it has also radically transformed the traditional relationship between law enforcement and journalists.  Parker admitted that he will often use social networking tools to connect directly to the public on breaking news stories or on news about his department―often in effect bypassing traditional news outlets.
“We want to be able to tell our story,” he said, joking that  news editors sometimes treat him as a “managing editor.”
Steve Johnson, senior regional editor for New Jersey Patch.com, an AOL chain of hyper-local news sites, agreed that news media who similarly deploy social networking tools, need to develop their own strategies for covering crime and justice stories that take into account how law enforcement agencies are operating in the new media landscape.
“We will be glad to work out these relationships,” he said.
But some of the traditional suspicion between reporters and police surfaced during the roundtable, as several journalists pointed out the difficulty they had in getting police to confirm information or provide key details.
At a session entitled, “Public Safety Professionals, Old Media, New Media: Can We All Get Along?” Capt. Parker was joined by Capt. Jeff Paul from the Morris County (NJ) Prosecutor’s Office; Ted Gest, president of Criminal Justice Journalists; and Tom Meagher, computer-assisted reporting editor for The Newark Star Ledger, the state’s largest daily, to discuss how to improve communication between cops and reporters.
Gest pointed out that the headline-driven landscape of social media can sometimes lead to incomplete reporting, and noted that the public’s need for accurate, context-driven information  was still paramount.
And the onslaught of social media technology doesn’t replace the necessity of developing a personal relationship between reporters on the crime beat and police.
“I’m going to provide more information to reporters who take the time to establish a personal relationship, who I can trust,”  said Paul, who holds down the twin jobs of heading tactical operations and spokesperson for the Morris County prosecutor.

Cara Tabachnick is managing editor for The Crime Report, an official online publication of the John Jay College.

Why cops are suited for the fight ahead

“You beat Nicky with fists he comes back with a bat. You beat him with a knife he comes back with a gun. And if you beat him with a gun you better kill him because he'll be coming back and back until one of you is dead.” – from the film, Casino

One of the things the powers that be might not have taken into thorough consideration before they decided to paint cops as budget-busting welfare queens and union thugs is the nature of a career in law enforcement.

The working life of a cop is challenging on levels that people outside the profession could never understand.

To be sure there are victories. Abducted kids are located and reunited with their families. Violent criminals who terrorize communities are investigated, charged and prosecuted. Dangerous drugs on their way into neighborhoods are intercepted and destroyed.

And then there are the losses and defeats. Three-time losers on parole gun down fellow officers in cold blood. Babies choke to death after swallowing a bottle cap as responding officers race up 15 flight of stairs in an apartment building with a broken elevator.

Convicts released early from jail return to wreak havoc on communities because of budget cuts or cutting a deal with a prosecutor.
In short, “winning,” isn’t what a career in public safety is about.

    But despite the seeming futility of the war on drugs, the complications involved in arresting someone like a mayor’s nephew and the revolving door of the criminal justice system, cops show up day after day to do the work. A lot of times it’s rewarding. More often it seems frustrating — like Sisyphus pushing the rock to the top of the hill only to watch it roll back to square one.

    That’s what you call perseverance. That’s what you call commitment. These are qualities law enforcement officers possess in greater amounts than others.

    And that’s why cops are built perfectly for the fight ahead.
    The assault by wealthy corporate interests on the rights of American employees didn’t start last November and it won’t end for decades.
And for many people, seeing such powerful individuals and entities amassing against their interests is just too overwhelming. How can a mother of three making $40,000 annually compete with billionaires and all their thinktanks and propoganda?

Feeling outmatched and defeated, it’s not hard to understand why some would just give up the fight and hope for the best.
    Cops are different. They hold grudges. They take being lied to seriously. And they definitely aren’t the folks you want to go into a long protracted battle with. It doesn’t matter if it’s a street fight or a war for the hearts and minds of America.
    Maybe the Scott Walkers, John Kasichs, Nikki Haleys and Rick Snyders of the world don’t know any law enforcement professionals and simply don’t understand.

    That might be why they figured that once the ball got rolling, cops would just hang their heads, tell their kids there’s no money for college and essentially just give up.

    But police officers are fighters.  They also know when they’re being lied to. And if Scott Walker and the Koch Brothers thought they could just screw us over and fly off into the sunset on private jets, they were sorely mistaken.

    This battle isn’t a sprint. It’s a marathon. And like the Greek philosopher Persius said, “He conquers who endures.”

Will police layoffs lead to chaos and anarchy?

Will police layoffs lead to chaos and anarchy?

Thousands of police officers have been laid off all across America since the current economic crisis began. Thousands more are getting ready to be laid off. So could we be on the verge of a new era of chaos and anarchy in America as crime runs wild and there are just far too few police to respond to it all?
That is the message that one blood-smeared billboard in Stockton, California is trying to get across. Paid for by the Stockton, California police union, the message of the billboard is chillingly clear: "Welcome to the 2nd most dangerous city in California. Stop laying off cops."
As state, city and local governments across the United States continue to be devastated by the ongoing economic crisis, budget cuts are becoming much deeper and police forces have suddenly become a very popular target.
Officer Steve Leonesio, the president of the Stockton Police Officers Association, has announced that the police union plans to spend approximately $20,000 on at least 20 more billboards.
Why is the union putting up all of these billboards?
Well, it turns out that Stockton has been considering a plan to lay off 53 police officers in an effort to eliminate a $23 million budget deficit.
But law enforcement in Stockton has already been cut to the bone. Recently, the Stockton Police Department dropped this bombshell: "We absolutely do not have any narcotics officers, narcotics sergeants working any kind of investigative narcotics type cases at this point in time."
Do you think drug dealers will be flocking to Stockton after they hear that?
But the truth is that so many of these local governments around the nation are just flat broke at this point. Even major cities are having to admit that they have accumulated such large debts that they cannot even afford to provide the most basic services any longer.
In Oakland, California the battle over police layoffs has made national headlines over the past couple of weeks. Oakland has laid off 80 police officers, and now the police chief says that there are some crimes that his department simply will not be able to respond to.
In fact, Chief Anthony Batts has compiled a list of exactly 44 situations, including grand theft, burglary, car wrecks, identity theft and vandalism, that his officers will not be available to handle any longer.

What in the world?
Once upon a time in America you could get a police officer to come out for just about anything - including for getting a cat down out of a tree. But those days are long gone. Today it is very hard to get a police officer to come out for anything short of murder.
The following is a partial list of crimes that police officers in Oakland will no longer be responding to: burglary, theft, embezzlement, grand theft, false information to peace officer, required to register as sex or arson offender, AND loud music to name a few. Not that Oakland wasn't already a mess, but now how long do you think it will be before total chaos and anarchy reigns on the streets of Oakland?
But Oakland is far from alone.
The Sheriff's Department in Ashtabula County, Ohio has been slashed from 112 to 49 deputies, and there is now just one vehicle remaining to patrol all 720 square miles of the county. So what are the citizens of that county supposed to do to protect themselves? Well, when asked about what they should do, Judge Alfred Mackey gave  this stunning piece of advice: "Arm themselves."
Is American society degenerating into a "Road Warrior-style" wasteland where we are all left to fend for ourselves? Consider this:
*Acting State Police director Jonathon Monken has announced that the Illinois State Police will lay off more than 460 troopers and close five regional headquarters by this fall.
*Atlantic City Mayor Lorenzo Langford has proposed a plan to lay off 40 police officers.
*The police department in Vallejo, California will temporarily suspend its K-9 and SWAT programs at the end of the month in a move to delay officer layoffs.
*Last year, 18 special police units in Toledo, Ohio  including the gang task force and the mounted patrol were eliminated or  downsized in an effort to replace the 130 patrol officers who were laid off because of a $20.7 million budget deficit.
*Of 315 municipalities the New Jersey State Policemen's union canvassed, more than half indicated that they were planning to lay off police officers.
*Four police officers in one town in New Jersey were greeted at work this past Monday morning with notices informing them that they will be laid off on August 31st.
*Police in Phoenix, Arizona have been told that more than 400 officers could be impacted by layoffs if "the worst case scenario" plays out.
    *Police and firefighters in Flint, Michigan decided that layoffs were preferable to taking a 15 percent pay and benefits cut.
*The city of Maywood, California laid off all 68 of its employees July 1st and is now "contracting out" police services.
*In Colorado Springs, dozens of police positions are going unfilled and the police helicopters were put up for sale on the Internet.
The sad thing is that as local police forces across America are being stripped down or dismantled, many communities are opening their arms wide to increased federal law enforcement "assistance."
In recent years, we have seen a large number of examples where the U.S. military is being used for domestic law enforcement, which is supposed to be against the law. In addition, federal government agencies are increasingly taking over the financing, training and  even command of local law enforcement agencies.
This commentary was posted on “The Economic Collapse” blog. Link is: http://theeconomiccollapseblog.com/archives/will-thousands-of-police-layoffs-unleash-chaos-and-anarchy-across-america