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Four years ago I wrote an article for PoliceOne that was highly critical of a Ninth Circuit Federal Court of Appeals decision in George v. Morris. [1] This case resulted in a 2-1 decision in which the majority judges ruled against law enforcement officers and failed to comprehend the danger they faced from a subject holding a firearm and refusing to drop it. [2] Now federal judges from the Eighth Circuit, citing George as persuasive authority, have compounded the Ninth Circuits uninformed mistake in a new decision titled Cole v. Hutchins. [3]

In George, officers from the Santa Barbara (California) Sherriffs Office responded to a call from the subjects wife that her husband had a gun and was distraught because of serious illness. Officers found him in the back yard holding a semi-automatic firearm. An officer told him to drop the gun, but George refused. George was holding the gun pointed at the ground. An officer said he raised the gun and pointed it directly at him. Three officers fired at George and he was killed. A firearm containing hollow-point bullets was recovered next to his body.

The lower court in the lawsuit that followed refused to grant the officers summary judgment based on qualified immunity. The judge, following pre-trial procedural rules, declined to accept officer testimony that George raised and pointed the gun before they shot him. Instead, the court accepted as true Georges wifes claim that George was too weak to raise the pistol from his side.[4]

The lower court ruled that if the officers shot a man holding a gun pointed toward the ground after telling him to drop it, they violated clearly established Fourth Amendment rights. The two-judge appellate majority agreed with the lower court and ruled, If the deputies indeed shot the sixty-four old decedent without objective provocation with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment. I said in my 2016 article that the Ninth Circuit judges were wrong and cited a scientific study, titled Reasonableness and Reaction Time (Blair Reaction Time Study) to prove my point. [5]

The Blair Reaction Time Study was conducted by Dr. J. Pete Blair, executive director of the Advanced Law Enforcement Rapid Response Training (ALERRT) Center and criminal justice professor at Texas State University. The study involved 30 college students who played the role of suspects and 24 experienced police SWAT team members. Each SWAT team officer was told they were responding to a man with a gun call and to individually approach 10 different suspects, one at a time, who were placed in separate areas of a building. They were told to approach each suspect with their Glock training pistols (which fired marking cartridges) up and pointed at each suspect from a distance of 10 feet. Each suspect had a similar pistol either pointed at their own head or down at their side pointed at the floor. The suspects were told to shoot the officer after being ordered to drop the gun. [6] The officers were told to shoot as soon as each suspect made a move to shoot at them.

The suspects with the guns at their sides were able to raise and fire at the officers in an average of .36 of a second. The officers were able to fire their up and pointed pistols in an average of .38 of a second. The suspects with guns at their heads were able to lower, point and fire in an average of .38 of a second. Officers fired back in .38 of a second. The study proves that once the suspects started movement with the gun from down at their sides or away from their heads, the officers would be shot, regardless of their attempts to return fire. [7] This raises the rhetorical question, were the officers in immediate danger of death or serious bodily harm when the suspects had the guns pointed down at their sides or at their heads? Were the officers in the George case in a life-threatening situation when George held the gun at his side and before George pointed his gun at them?

Now Eighth Circuit judges in the newly decided Cole v. Hutchins case have erroneously adopted the Ninth Circuits unscientific approach in George. In Hutchins, Officer Hutchins of the Little Rock (Arkansas) Police Department, responded to a 911 call from neighbors that there was an altercation in the front yard of the Underwood residence.

Darrell Underwood and his nephew Roy Richards became involved in a physical altercation on Underwoods front lawn around midnight. Before arriving, officer Hutchins was told that Richards was armed with a long gun. Hutchins and a second officer parked a short distance away from the house and approached on foot because of their concern for the gun. A neighbor saw the officers approach and informed the combatants who were still fighting that the police had arrived.

From here the facts are disputed. However, the lower court in the lawsuit that followed this incident was required by pre-trial procedural rules to assume the truth of the plaintiffs version of the facts. [8] In that version, the fight continued for about 10 seconds before stopping by mutual consent. Underwood walked toward his front porch while Richards walked to his vehicle parked in the driveway.

Richards grabbed what appeared to be a rifle from the drivers side of his vehicle. [9] Underwood walked up the steps of the front porch and Richards walked around the back of his car holding the gun vertically and approached the porch. Richards started up the steps, but Underwood entered the home and slammed the front door. Richards walked back down the steps and started back toward his vehicle. According to Underwood roughly five seconds after he closed the front door, he heard five shots. Those shots were fired by Hutchins at Richards and he was killed. [10] It is alleged that Hutchins fired without warning Richards to drop the gun.

Cole, the personal representative for Richards estate, sued Hutchins and the City of Little Rock in federal court pursuant to 42 U.S.C. 1983 for allegedly violating the Fourth Amendment for using excessive force on Richards. The trial judge rejected Hutchins summary judgment motion based upon qualified immunity grounds. He ruled that the law was clearly established at the time of the shooting that an officer could not use deadly force against a person who posed no immediate threat to cause serious physical injury or death. Hutchins appealed to the Eighth Circuit, which affirmed the trial judges ruling.

The Eighth Circuit stated that police use of deadly force is objectively unreasonable absent probable cause to believe the suspect poses an immediate threat of death or serious bodily injury to others. The court stated that a suspects mere possession of a firearm is not enough to establish probable cause that he/she poses an immediate threat of death or serious bodily harm. Instead, the court opined that the suspect must also point the firearm at another individual or take similar menacing action. The court ruled that Hutchins's shooting of Richards was not objectively reasonable because Richards, with his gun pointed either toward the ground or the sky, retreated down Underwoods front steps and turned away from his front door. The court failed to mention or discuss that while the immediate threat to Underwood had lapsed, Richards still presented a deadly immediate threat to Hutchins and his fellow officer. To support its decision, the court cited an earlier Eighth Circuit opinion in which the court declared a police shooting unreasonable and not an immediate threat when the suspect held a gun to his head and began to move it away from his head when shot by police.[11]

The court was also critical of the failure of Officer Hutchins to warn Richards before firing at him. The court observed that a warning is necessary when feasible before an officer uses deadly force. The court explained that while the failure to warn when feasible does not automatically render use of deadly force unreasonable it does exacerbate the circumstances and militates against finding use of deadly force objectively reasonable.

The Eighth Circuits decision ignores the danger Richards posed to the on-scene officers during this incident. The courts focus was on the cessation of a deadly threat to Underwood when he entered his home and slammed the door. The fact that seemed irrelevant and inconsequential to the judges was that Richards was still in possession of what appeared to be a rifle and was walking toward his vehicle, a location that was about to give him the tactical advantage of cover behind the engine block or a vehicle pillar. Moreover, the opinion erroneously takes the position that in order for a suspect holding a firearm to be an immediate threat to an officer or others, he must point it at them or make a similar menacing action (whatever that is?).

This opinion and the earlier opinion of the Ninth Circuit in George demonstrates just how uninformed and out of touch many federal judges are regarding the threat posed to officers by persons holding a firearm, pointed at innocent persons or not, due to the deadly reactionary gap. In fact, Richards would still be a deadly threat to the officers before he reached cover behind his vehicle. He can decide to fire at the officers, rapidly turn, point the gun and fire so quickly that the officer will not be able to react in time. Reaction time studies show that once a decision to shoot is made and the firearm is pointed, a round can be fired in .3 tenths of a second. [12] This means that once the suspect points the weapon approximately four shots could be fired at the officer in 1.06 seconds.

Regarding the issue of a warning before an officer can fire. The Supreme Court in Tennessee v. Garner[13] made clear that warnings should be given if feasible. Common sense tells us that it is not feasible to warn if a reasonable officer believes it would place him in greater danger to warn. If the officer is standing without cover in the open in close proximity to the shooter raising or pointing a firearm, a warning is not feasible. If the suspect has his back to the officer but is holding a firearm, a warning may not be feasible.

In cases like this, it is imperative that attorneys representing accused officers present expert affidavit testimony to enlighten and educate the court in summary judgment motions and appeals concerning the action v. reaction concept, aka the deadly reactionary gap. [14] Moreover, scientific evidence from studies on the deadly reactionary gap, like the findings from the Blair Reaction Time Study and the many reaction time studies conducted by Force Science Institute Executive Director Dr. William J. Lewinski [12] establish beyond question that an officer who waits for a gun to be pointed at him/her can be shot before they can react. This scientific factual evidence must be communicated to all judges involved in cases of this kind.

Police chiefs associations should endeavor to be invited to speak about these matters at federal and local judicial conferences so that skeptical judges are apprised of scientific developments before becoming involved in similar matters.

References

1.736 F.3d 829 (9th Cir. 2013).

2. Callahan M. What the Ninth Circuit got wrong in George V. Morris (and why it still matters now). PoliceOne.Com.

3. (No. 19-1399). (8th Cir. 5/28/20).

4. After the shooting Mrs. George told the police that before they arrived, she tried to physically take the gun out of her husbands grasp but was unable to do so. This contradicted her claim that he was too weak to raise the gun. The court apparently ignored this information by limiting itself to the plaintiffs set of facts.

5. Blair P. Reasonableness and reaction time. Police Quarterly, Vol. 14, Issue 4, pp. 323-343.

6. Eighty percentof the suspects were told in advance to fire and the remainder were told in advance to surrender. The officers were not told how the suspects would react to the order to drop the gun.

7. This assumes accurate shot placement. From a distance of 10 feet, accurate hits are highly probable.

8. When a defendant in a civil rights lawsuit files a pre-trial motion for summary judgment, asking the judge to decide the case on legal or qualified immunity grounds without permitting a jury trial, the legal procedure requires the judge to accept as true for purposes of deciding the motion, the plaintiffs version of material facts when those facts are disputed by the parties.

9. All witnesses believed [it to be] a rifle but later learned it was a pellet gun after the incident was over.

10.Hutchins fired with his patrol rifle.

11.SeePartridge v. City of Benton, 929 F.3d 562, 565-567 (8th Cir. 2019).

12. Lewinski W, Hudson W. Time to start shooting? Time to stop shooting? The Tempe study. The Police Marksman, Sept-Oct 2003 edition. According to a later Lewinski study, every subsequent shot will be delivered in .25 of a second intervals.

13. 471 U.S. 1 (1985).

14. Even if the court refuses to officially consider the scientific study testimony at the pre-trial stage because of legal procedural rules, the judge will nonetheless receive important education on this critical topic.

Link:
Eighth Circuit judges fail to comprehend threat rifle-bearing subject poses to police - Police News

On Tuesday evening, as a large group of peaceful protesters marched over the Manhattan Bridge, members of the New York Police Department parked on opposite ends of the span, trapping 5,000 people over the water for nearly an hour. The night before, in Dallas, police officers corralled protesters on the Margaret Hunt Hill Bridge before arresting 674 of them (they were released later that night, with at-large charges for blocking traffic). That same night in Washington, D.C., police officers drove protesters into a crowded intersection of Swann and 15th NW with teargas. All over the country this week, police officers have surrounded protestersand then refused to let them leave.

This tactic is called kettling, a word you might have seen popping up in social media posts from and about the protests. The term evokes a boiling tea kettle, but it actually comes from a German military term referring to an army thats completely surrounded by a much larger force. Kettling is a law enforcement tactic specifically applied when the police have chosen to criminalize existence in public spaces, says Blake Strode, Executive Director of ArchCity Defenders, a legal advocacy group that has handled kettling cases in St. Louis. So separate and apart from who is caught in them and how people are impacted, which is all true and well-stated, it is also fundamentally about police dictating whom is allowed to be where and when.

Ostensibly a form of riot control, kettling occurs when police officers block off streets and push people into confined areas, like a city block or a bridge. While protest and riot management traditionally focuses on dispersing crowds, kettling is all about containment. When youre kettled, you have no access to bathrooms, very little space, and no place to go. Critically, no one gets to leave until the police say so. Basically, its a pressure cooker without a valve, said civil rights attorney Javad Khazaeli, ArchCity Defenders co-counsel on kettling cases.

In theory, the technique allows police officers to slowly release small groups out the kettle as a way of defusing tension. In practice, however, its deeply problematic. Youre interfering with peoples right and ability to do what the first amendment protects, which is to go out in the street and tell the government what you think, says Jonathan Smith, Executive Director of the Washington Lawyers Committee for Civil Rights and Urban Affairs. It also punishes the innocent for the misconduct of the few. That is also constitutionally infirm. To seize somebody, under the fourth amendment, you need to have a basis for doing so. But when kettling happens, large swathes of people are grouped together indiscriminately.

But kettling is particularly insidious for the way it elevates tension, rather than defusing it. The tactic of completely surrounding a group of civilians leads to panic and increases the likelihood of a physical confrontation between the citizens and the police, said ArchCity Defenders attorney Maureen Hanlon. Tensions run high in a kettleprotesters can become agitated, giving police officers grounds to employ more violent tactics and conduct arrests. Such was the case in Brooklyn this Wednesday, when police officers circled a peaceful protest at Cadman Plazaand then descended with batons. The danger is even greater while battling a pandemic: in addition to garden-variety aggressive policing, kettling is also the opposite of social distancing.

If kettles mark a new phase in this summers wave of protests, they are not a novel strategy for police. One of the first major instances in the United States took place at an anti-globalization and anti-war protest in Washington, DC in 2002, when officers protesters and random civilians alike in Pershing Park. Police hogtied some of those detained and posed for pictures. In 2017, DC police officers kettled protesters at Donald Trumps inauguration. That same year, police officers kettled protesters marching against the acquittal of former police officer Jason Stockley, who fatally shot Anthony Lamar Smith. ArchCity Defenders and Khazaeli are still handling those cases. Perhaps the most infamous kettle took place in London in 2009, when police attempted to contain 10,000 people protesting the G20 summit for several hours. The UK courts subsequently ruled that the maneuver was illegal, and that kettling could only be used as a last resort catering for situations about to descend into violence.

If kettling has been on the rise this week, so has the outcry against it, from AOC (No, this is dangerous, she tweeted, before heading to the bridge) to Mark Ruffalo. But NYC Mayor Bill De Blasio defended the Manhattan Bridge kettle on Wednesday morningsuggesting that, at least in New York, kettling isnt likely to go away any time soon. So what should a protester caught in one do? The Network for Police Monitoring acknowledges that kettles can be hard to anticipate, but youre at less of a risk if you move quickly. To that end, the Be Water protest strategy employed in Hong Kong is usefulan agile pop-up protest model based on movement and frequent digital communication.Situational awareness is the only real way to prevent it, Smith advised. If you feel like youre being trapped, take an exit route. Thats the safest thing to do.

Read the original post:
What Is Kettling? Explaining the Police Protest Tactic - GQ

The killing of George Floyd and the ensuing civil unrest have placed journalists at the center of

large-scale protests and demonstrations across the United States, including in major metropolitan

centers throughout Texas. In the course of covering these protests, many journalists have found

themselves in harms way, and members of the press corps have been assaulted, detained, or

arrested in the line of duty. The press has a responsibility to cover these public events, and the

First Amendment protects journalists ability to cover public demonstrations, such as those going

on in response to the death of George Floyd. The following outlines First Amendment

protections as they relate to coverage of protests and demonstrations.

Does the Press Have a First Amendment Right to Cover Protests?

Yes. In general, journalists have a First Amendment right to cover protests and demonstrations.

Members of the press cannot be excluded from public spaces simply because they are journalists.

Similarly, law enforcement cannot prevent journalists from reporting, and law enforcement or

government officials cannot retaliate against journalists for doing their job.

At the same time, these First Amendment protections do not place journalists above the law.

Journalists are still generally subject to the same laws and restrictions as the public, including

PAGE 2

orders regulating the time, place, and manner of First Amendment activity. Furthermore,

members of the press typically do not enjoy special access to places or information that are not

accessible to the public, and the First Amendment does not allow journalists to trespass or

otherwise break the law, even if they are doing so in furtherance of newsgathering efforts or to

report on protests or demonstrations.

Can Journalists Record Law Enforcement Activity at Public Protests?

Taking photographs or video of people or events that are visible in public is permissible and

constitutionally protected. Journalists who are lawfully present in a public space have the right to

record anything in plain viewincluding police activity, so long as the press activity is not

interfering with legitimate law enforcement operations. By contrast, when an individual is on

private property, the owner of the property may restrict anyones ability to record or require

individuals to leave for any reason.

As stated above, First Amendment protections to engage in newsgathering activity do not entitle

journalists to break the law, such as laws against trespassing. Journalists should also be familiar

with Texas wiretapping statute, which prohibits surreptitious recording of private conversations

without consent. Under Texas Law, a person may only record audio of conversations if those

conversations are in a public place where there is no reasonable expectation of privacy, or if at

least one party to the conversation has consented to the recording. As a matter of best practices,

journalists should clearly identify themselves as members of the press and remain open and

transparent about their use of recording devices.

When Can Journalists Be Detained or Searched?

If a law enforcement officer has a reasonable suspicion that a person is involved in criminal

activity, that officer can temporarily detain him or her in what is known as a Terry stop, (also

known as a stop and frisk). During such a stop, a law enforcement officer may conduct a patdown to ensure that a detainee is not armed and dangerous. For a law enforcement officer to

arrest someone, the officer must have probable cause to believe that the person committed a

crime. This is a higher standard than the reasonable suspicion required for a temporary stopand-frisk.

The Fourth Amendment protects individuals from unreasonable searches or seizures of their

property. Furthermore, the Privacy Protection Act of 1980 prevents law enforcement officers

from searching and seizing a journalists work product, including notes, photographs, and video

footage, without a warrant. If a law enforcement officer demands to inspect such newsgathering

materials, journalists should clearly identify themselves as members of the press and explain that

they are covered by this law. Furthermore, in the absence of a warrant, journalists may withhold

consent for law enforcement to search their belongings or work product, including the contents

of recording devices and cellular telephones.

What Should Journalists Do if Confronted by Law Enforcement?

Journalists should exercise extreme caution covering protests and demonstrations. Members of

the press have reported incidents in which journalists have been targeted by law enforcement for

covering protests. Members of the press have been detained or arrested, shot with rubber bullets,

PAGE 3

and sprayed with tear gas or pepper spray in the course of their reporting in the field. Journalists

should remain alert and mindful that they may face hostility from both demonstrators and law

enforcement when covering these protests.

Journalists should be sure to carry a government-issued identification, as well as contact

information for attorneys or organizationsincluding the Texas Press Association or the

Reporters Committee for Freedom of the Pressthat can provide legal resources and guidance to

journalists. Journalists should clearly identify themselves as members of the press and

prominently display all press credentials. Members of the press should remain alert and

cognizant of potential threats, and should calmly and respectfully discuss their rights with law

enforcement if they feel that their First Amendment rights to engage in newsgathering activity

are being violated.

Furthermore, journalists in the field should stay apprised and mindful of any dispersal orders or

curfews that may impact their ability to be in public spaces. Many state and local curfews

contain exemptions for members of the media, but members of the press should stay aware of

any developments that may impact their ability to safely or legally be at the scene of a public

demonstration.

Texas journalists should contact the Texas Press Association at 512-477-6755 or the Reporters

Committee for Freedom of the Press at 800-336-4243 or rcfp@hotline.org.

Originally posted here:
First Amendment Protections for Journalists Covering Protests - The killing of George Floyd and the ensuing civil unrest have placed journalists at...

I want to begin by expressing my sincere respect and confidence in our police, and recognize their dedication to protecting our lives, our property, and our freedom. At the same time, it is clear that there is something systemically wrong with the law enforcement and justice system in the United States. The rule of law at all levels of government is being undermined and the respect for the law is eroding among the population. This must change.

In September 2007, the Private Security Company (PSC), Blackwater, operating under contract with the U.S. Department of State, opened fire on a crowd of civilians at Nisour Square, Baghdad Iraq, killing 14. The use of force was unnecessary, excessive, and tragic. In addition to the loss of life, it fundamentally changed our relationship with the Iraqi people and damaged the reputation of the United States. After this event, legislative and departmental remedies were implemented to uphold accountability under the law for misconduct by PSCs. Noteworthy among these was the Congressional requirement to develop business and operational standards relevant to private security providers. At that time, I was the U.S. governments technical expert on Private Security and the development of such standards fell to me.

Congress primary concern was the assurance that companies were competent and capable of performing their contracted services. The Defense Department went beyond that, incorporating provisions of the recently concluded Montreux Document, an international framework covering private military and security companies. We worked with the State Department and the Department of Justice, along with other stakeholders from the PSC industry, academia, human rights organizations, and representatives from other governments, incorporating respect for human rights as integral to all aspects of private security company operations. The most critical aspect of this work was the one element that distinguishes private security from any other business or government contractor. The use of force, up to and including deadly force.

The Department of Defense issues very specific rules for the use of force. These are orders specifying when force may be used, the limitations on that force, and the requirement to de-escalate force as soon as it is safe to do so. Since 2008, contractors accompanying the armed forces have been subject to military justice, making those rules enforceable by both U.S. civilian and military law. Most PSCs, however, are not Defense Department contractors, or work for any U.S. agency or foreign government. The standards, therefore, needed to address the use of force applicable to any legal context by any PSC from any country. We began with the firm understanding that PSC personnel do not have the right to engage in combat and under no circumstances did they possess combatant immunity. The use of force by PSC personnel is restricted by their civilian status, similar to police. We were guided by two fundamental principles: There is an inherent right to life, which includes the right of self-defense and the defense of others against unlawful attack. Any use of force must be necessary and reasonable. That is, it must be necessary to use force to protect lives and property and the force used must be reasonable in intensity, duration, and magnitude.

Prior work in this area was critical to success. This work included existing use of force procedures in Defense Department directives and the UN Basic Principles for Use of Force and Firearms by Law Enforcement Officers. Most important was review and comment by the U.S. Department of Justice. The language of the standard includes clear requirements to follow local law, when it is operative and wherever it is more restrictive than the standard, and to report any use of force. Soon after publication, the use of force guidance in the standards formed an integral part of the UN Office of Drug and Crime sponsored Handbook on the Use of Force for Private Security Companies. Since the publication of these documents, inappropriate use of force by PSC personnel has gone from usual to exceptional.

Considering that we based the standards requirements on the use of force principles common to U.S. police departments, and considering the success of these standards, recent police actions are very concerning. This includes the recent murder of George Floyd by Derek Chauvin and the other policemen with him. Sadly, this tragedy was not unique. There are frequent reports of the use of force by police that appear inconsistent with what is necessary and reasonable. Even if Chauvin and those like him represent only.01% of police, the effect of that misconduct adversely affects the relationship of the police with a large segment of the population, creating a spiral of fear and distrust. Such incidents, however, do not appear out of nowhere. They are the result of a long chain of events. A chain which could be broken at any link. What were the links that led to Minneapolis, or St. Louis, or New York, or Atlanta? I do not claim to have the right answers. I can try, however, to ask the right questions.

News about the murder of George Floyd is displacing news about another recent event; the death of Breonna Taylor in Louisville as the result of a No-Knock warrant. A no-knock warrant is an exception to the normal procedure called, knock and announce. In no-knock, police are allowed to execute forcible entry, often with a battering ram and considerable destruction of property. The justification is a situation where the official requesting the warrant provides evidence that knock and announce would place police at risk of serious injury or death or would allow the destruction of the evidence the warrant is intended to seize. There are an estimated 20,000 no-knock warrants every year in the United States. There are strong indications that the widespread use of these warrants is not necessary and may violate Supreme Court restrictions on their use. Does the proliferation of no-knock warrants indicate a rapid movement away from the rule of law and erosion of trust and confidence in the police?

No-knock warrants are also dangerous. The American Civil Liberties Union cited the dangers of no-knock warrants in 2015, arguing, No-knock warrants pose a danger to the lives of police officers as well as innocent civilians, In most states, homeowners are allowed to use deadly force to resist persons breaking and entering while the premises are occupied. The ACLU noted, If the police do not successfully communicate their identity in the split-second when they kick down the door, they are likely to encounter gunfire from citizens who believe they are justifiably defending their homes from lawless intruders.

This is what happened in Louisville. Just after midnight on March 13, 2020, plainclothes narcotics officers conducted a no-knock raid at the home of Breonna Taylor. Taylors boyfriend woke up and grabbed his legally owned firearm. He fired at the perceived intruders, and the police returned fire, shooting at least 20 bullets. Eight of these hit Taylor, killing her. The boyfriend was arrested for the attempted murder of a policeman, but charges were later dismissed. There were no drugs and the person the police were looking for was already in custody at the time of the raid. What risk analysis justified violent entry into Breonna Taylors residence?

This isnt a matter of a few rogue policemen. The Fourth Amendment to the U.S. Constitution requires a warrant for any search. Like any warrant, no-knock warrants have to be approved by a judge. The information provided, under oath and penalty of perjury, must be factually correct and must be specific. Warrants cannot be fishing expeditions. In 1997, the Supreme Court placed further restrictions on no-knock warrants. The unanimous decision clearly stated, The Fourth Amendment does not permit a blanket exception to the knock and announce requirement for felony drug investigations. The decision requires an issuing court to evaluate the reasonableness of each warrant request, examining the facts and circumstances of the particular entry justifying why knocking and announcing would be dangerous or futile, or that it would inhibit the effective investigation of the crime. How did the court fulfill this responsibility in issuing the warrant for Breonna Taylors residence?

Unfortunately, in 2006 the Supreme Court undermined the effectiveness of this requirement, ruling that even if the police violate the knock-and-announce rule, they can still use any incriminating evidence found inside. This was a significant blow to both demanding reasonableness in no-knock entry and the protections of the 4th Amendment.

We are faced with a situation where the Supreme Court created ambiguity, judges allow no-knock entries without confirming necessity, and police use force that may appear unreasonable in intensity and magnitude. In executing these raids, police create the risk of being misidentified as burglars, and inviting a lethal response by the residenta particularly unwarranted risk in the 10 percent of cases where the police raid the wrong residence. In some cases, the justifying information is provided by an informant; information that sometimes proves to be misleading, false, and tragic. The outcome of this chain of events does not only affect the African-American community. Almost half of all no-knock raids are against Caucasian subjects and households.

These are just some potential links in a long chain leading to the death of Breonna Taylor. A chain that may also produce a culture attaching low importance to necessity and reasonableness and undermines of lack of commitment to the rule of law. This appears in less violent encounters, too, such as rough handling and handcuffing of cooperative subjects. The death of George Foley began as a non-violent arrest.

Returning to private security, the internationally accepted standard modeled its use of force language on that used by police departments throughout the United States. The language that requires the use of force, any force, must be determined as necessary for the protection of lives and property. Where the use of force is necessary, it must be limited to that which is reasonable in intensity, duration, and magnitude. Further, there must be a continuum of force, de-escalating as soon as higher degrees of force are no longer necessary. For private security providers who adopt these standards, and the organizations that hire them, this has been successful. Sadly, it seems to be less successful in the law enforcement organizations we modeled. Why do PSCs seem more successful in applying the use of force principles than the police?

I do not propose to have any solution for these recent and ongoing tragedies. I can only propose questions we can ask as we carefully examine the chain of eventsand break or repair links whenever we a defect.

Link:
Necessary and Reasonable - International Policy Digest

Remember when Donald Trump took a walk from the White House to St. Johns Episcopal Church to pose for a picture with a Bible? Well, to get to the church, he dispersed protesters from the area with tear gas and projectiles. Now, as a result, his little stunt has gotten him, and his administration sued.

Thursday, the Washington, D.C., chapter of Black Lives Matter filed a suit in conjunction with the American Civil Liberties Union against Trump and his administration. The lawsuit alleges the administration violated the organizations civil and constitutional rights. Monday, during the groups peaceful protest, they were forced out of Lafayette Square by U.S. Park Police, and the National Guard, who used horses, projectiles, and gas. Journalists and protesters were gathered in the square to demonstrate peacefully against police violence in the wake of George Floyds death, NBC News reports.

BLM and ACLU are asking for a jury trial in the U.S. District Court of the District of Columbia. Their suit alleges that the administration violated their First and Fourth Amendment rights, which protect the right to protest and protect against unreasonable search and seizure. Both parties of the suit claim authorities shot flash-bang shells, tear gas, smoke canisters, pepper balls, and rubber bullets into the crowd.

Out of all the devices used, the U.S. Park Police has disputed the use of tear gas.

The conspiracy targeted Plaintiffs protected First Amendment activities because Defendants held animus towards Plaintiffs viewpoints, the lawsuit said. The violent actions of the conspirators directly and unlawfully interfered with these activities. The suit also claims that the administration conspired to deprive them of their civil rights and protections.

The groups are also asking for a judge to grant relief by issuing an injunction to stop the administration from continuing to use force against protesters.

According to NBC News, Attorney General William Barr, who is named in the lawsuit, defended the use of force on the protesters Thursday. Barr alleged that the administration was provoked by increasing violence. On Monday, we were still facing very large demonstrations that were belligerent and throwing projectiles, Barr said, adding that its very important to use sufficient forces, law enforcement, to establish law and order in a city when you have riots running. If you use insufficient resources, its dangerous for everybody.

However, multiple news outlets in attendance on Monday disputed these claims and said protesters were in the park for hours without any incidents.

Defendants actions to shut down the Lafayette Square demonstration is the manifestation of the very despotism against which the First Amendment was intended to protect, the suit said.

Continued here:
Black Lives Matter Chapter In DC Sues the Trump Administration for Violating Their 1st & 4th Amendment Rights - balleralert.com