A Fire ICE Act

ICE is rotten to the core. Basically everyone who works for it is a corrupt, racist, bad cop, with no regard for the rule of law who lacks moral character.

Democrats in Congress should sponsor the Fire ICE Act. This would:

1. Immediately terminate the employment of every single employee and contractor working for ICE.

2. Permanently bar every former ICE employee from working for any federal government agency or any federal government contractor in any capacity, even as an unpaid volunteer or as prison labor.

3. Permanently bar every former ICE employee from receiving security clearances.

4. Permanently bar every former ICE employee from receiving federal financial aid for higher education.

5. Permanently bar every former ICE employee from eligibility for SBA loans.

6. Permanently bar every former ICE employee from serving as a sponsor for any immigrant.

7. Retroactively downgrade every former ICE employee who is a military veteran to dishonorably discharged status.

8. Permanently bar every former ICE employee from receiving federal farm aid.

9. Permanently bar every former ICE employee from receiving federal housing or disaster assistance, including FHA and VA loans.

10. Revoke all non-vested employee benefits of the ICE employee from any federal government employment.

11. Extend the statute of limitations for civil liability and criminal liability committed in connection with service as an ICE agent to 50 years.

12. Create a private cause of action, including minimum statutory damages of $50,000 and attorneys' fees, for any violation of federal law committed by an ICE agent while employed by ICE or a contractor for ICE. This would include any wrongful deportation and any detention made without probable cause. And, allow any vested retirement funds or homestead property to be used to satisfy any such judgment even if it would otherwise have been exempt from creditors. Make any such debts non-dischargeable in bankruptcy.

13. Bar all companies that provided deportation transportation services to ICE from all future government  contracts.

14. Make all former ICE employees ineligible to serve on the board of any 501(c)(3) organization, or as an officer or paid employee of any such organization.

15. Revoke the visas of any ICE employee who is not a U.S. citizen.

16. Prohibit former ICE agents from owning or possessing firearms.

17. Bar former ICE officers from making new applications for federal disability benefits.

18. Prohibit federal civilian employees and federal government contractors hired in any law enforcement role from wearing masks, or enforcing the law in unmarked cars, subject to very narrow exceptions that are heavily reported upon, required all sorts of red tape, and are limited to circumstances that never include immigration enforcement.

19. Create a list of places like hospitals, court houses, churches, and immigration offices, where immigration enforcement is not allowed.

20. Allow any state or city to prohibit federal immigration enforcement from taking place in their jurisdiction, subject to very narrow exceptions for people convicted of serious felonies within the last five years.

21. End all grounds for denaturalization and punish people who secured U.S. citizenship by fraud with criminal penalties that do not revoke their U.S. citizenship.

22. Place former ICE agents at the bottom of the priority list to receive organ transplants, at at the end of the line for any Medicaid, Medicare, or VA medical benefit for which there is a waiting list.

23. Prohibit former ICE agents from receiving any honor or recognition from the federal government and revoke any honor or recognition that the former ICE agent was previously awarded by any federal government entity, military or civilian.

24. Deny former ICE agents any benefit of U.S. international child custody treaties.

25. Prohibit former ICE agents from notarizing any document used in the federal courts or submitted to a federal government agency.

26. Make former ICE agents ineligible for all federal licenses, including but not limited to, patent examiners, SEC licenses, BLM grazing permits, FCC licenses, interpreter qualifications, pilot's licenses, federal firearms dealer's licenses, and federal fishing or hunting licenses.

27. Prohibit former ICE agents from being buried in military cemeteries.

28. Prohibit former ICE agents from being granted patent or trademark applications.

29. Prohibit former ICE agents from serving as officers of any federally recognized employee unions.

30. Prohibit former ICE agents from attending any federal educational institutions.

31. Prohibit former ICE agents from making mining claims.

32. Impose a 50% excise tax on any vested, deferred compensation payable to former ICE agents on top of any other applicable taxes.

33. Enact a rebuttable presumption in any federal discrimination case that a former ICE agent intended to engage in illegal discrimination.

34. Prohibit former ICE agents from serving a registered lobbyists.

35. Require former ICE agents to disclose their employment with ICE to all future employers, in any commercial contract, in any campaign for public office, and prior to being issued a marriage license.

36. Make status as a former ICE agent an aggravating factor under the federal sentencing guidelines.

37. Prohibit former ICE agents from entering federal parks and federal landmarks.

38. Prohibit former ICE agents from serving as officers or directors of any publicly held company.

39. Prohibit former ICE agents from purchasing cyptocurrencies or selling crypocurrencies that were not owned prior to the enactment of the law.

40. Prohibit former ICE agents from obtaining any federal loan or bailout of any kind.

41. Disclose all internal ICE records and a list of all former ICE agents to the public on a publicly available database that disclosed all internal affairs information, all service information, and all contract information of former agents.

42. Immediately release everyone in ICE detention who isn't an undocumented immigrant convicted of a crime within the last five years that is a felony or worse. Transfer the rest to the federal Department of Corrections.

43. Ban all future private prison contracts of any kind.

44. Deny all de minimis tariff exemptions for former ICE agents.

45. Formally authorize private sector employers and state and local government employers to discriminate against former ICE agents.

46. Give cases in which former ICE agents are plaintiffs, the lowest scheduling priority in federal court.

47. Require disclosure of former ICE agent status in every lawsuit filed by a former ICE agent, and as part of the witness testimony of every former ICE agent in any federal court or federal administrative agency proceeding.

48. Prohibit former ICE agents from participating in clinical trials for new drugs and medical devices.

49. Prohibit former ICE agents from receiving any new federal tax credits.

50. Prohibit former ICE agents from serving as employees or unpaid volunteers in federal funded schools at any level.

If this bill is introduced as a bill in Congress, and secured enough co-sponsors in the House and Senate to have some credible chance of being seriously considered, it doesn't even matter if it passes. 

It will still powerfully discourage people considering employment with ICE from doing so. Every if some provisions are subsequently invalidated by the courts and are severed from the larger bill, the uncertainty would seriously chill anyway from applying to work for it.

Guns v. Knives

When law enforcement shoots someone armed with a firearm, there is rarely any question that using deadly force was reasonable. But when law enforcement shoots and kills a woman armed with a hunting knife, admittedly after TASERs failed, I doubt their competence.

Officers shot and killed a woman who was holding a large, hunting-style knife at an intersection in downtown Denver on Sunday, police said.

Officers used a Taser on the woman twice but she began advancing toward them as they tried to back up from her, Denver police Chief Ron Thomas said a news conference near the scene. Three officers fired at her, he said.

The shooting will be investigated and the results will be sent to prosecutors to decide if the shooting was lawful, he said.

“My belief is that the officers perceived a significant threat and responded to that threat,” Thomas said.

The shooting happened near Triangle Park at the intersection of Lawrence Street and Broadway. Thomas said a Denver Park Ranger was among the first to call and report the woman was in the intersection around 11:45 a.m. Sunday.

From the Colorado Sun.

Biden World

Welcome to Biden world.

Inflation is modest (3.4%). Economic growth is high (4.9% annualized, seasonally adjusted). Unemployment is low (3.8%).

Teen birth rates in the U.S. are at an all time historic low.

Violent crime was near a 25 year low before the pandemic in 2019, and is returning to the trend line after a pandemic surge:

The murder rate in big cities that bounced up in the pandemic (2020-2021) has fallen again (down 5% in 2022 and down another 12% so far this year compared to the same time period in 2022) to return to almost pre-pandemic levels.

The war on marijuana is almost over and Biden is working to remove its Schedule I controlled substance status (which would end punitive federal taxation of the industry and allow marijuana businesses to use banks):

Russia's conventional military might has crumbled and NATO is stronger. The U.S. is out of Afghanistan. Israel's continued existence is not seriously threatened. China has not invaded Taiwan.

COVID deaths are way down.

More than a thousand people have been held criminally accountable for the January 6, 2021 attempted self-coup and even the people at the top are being held accountable.

Bad cops are being held accountable at much higher rates in recent years.

Coal consumption in the U.S. is down more than 50% from its 2008 peak, and continues to fall. Renewable generation surpassed coal and nuclear in the U.S. electric power sector in 2022:

According to J.D. Powers & Associates:

Sales of electric vehicles (EVs) in the United States rose by two-thirds in 2022, comprising 5.8 percent of all new vehicles sold. This represents a significant increase from the 3.2 percent market share in 2021.

This is expected to increase substantially again in 2023. 

Barriers To Suing Bad Cops

The law is full of unreasonable traps for the unwary trying to seek relief for harm they suffer from misconduct at the hands of law enforcement.

West Virginia used-car dealers file motion to suppress evidence obtained during search, and four years later a court agrees that the state trooper who applied for the warrant omitted important facts and made misleading statements and dismisses the criminal charges (failing to disclose to customers that their cars had been totaled before being refurbished) with prejudice. 

Fourth Circuit: But it's too late for them to sue the trooper over the unconstitutional search. They should have sued while the criminal case was still pending.

From here.

Colorado Supreme Court Favors Weaker Interpretation Of Governmental Immunity

In the case of Cisneros v. Elder, 2022CO13, the Colorado Supreme Court today chose an interpretation of the state's governmental immunity statutes that is less protective of jail guards. The official syllabus states:

In this case, the supreme court considers whether section 24-10-106(1.5)(b), C.R.S. (2021), of the Colorado Governmental Immunity Act ("CGIA") waives sovereign immunity for intentional torts that result from the operation of a jail for claimants who are incarcerated but not convicted.

The court now concludes that section 24-10-106(1.5)(b) waives immunity both for intentional torts and for acts of negligence resulting from the operation of a jail for claimants who are incarcerated but not convicted. In reaching this determination, the court concludes that the statutory language waiving immunity for claimants who "are incarcerated but not yet convicted" and who "can show injury due to negligence" sets a floor, not a ceiling.

In contrast, in many circumstances, governmental immunity is waived for negligent acts of governments and government officials that cause injury, but not for intentional acts.  

The Colorado Supreme Court also rejected the argument that governments themselves should not be responsible for the intentional wrongs of their employees, basically on that theory the intentional wrongs are beyond the scope of the authority of these officials and that suing particular government employees for "willful and wanton" acts is expressly permitted in Colorado under CGIA. In this case, the court reasoned, the government was not being held vicariously liable for the willful and wanton misconduct of its employees, but for its own intentional wrongs as a matter of policy.

The underlying case involved the El Paso County Sheriff refusing to release an inmate who had posted bail, without authorization to do so, in connection with an alleged immigration hold that was held to be improper in separate litigation  resulting in the inmate's release four months later. 

The inmate was represented by the Colorado ACLU and Holland & Hart, LLP, one of the largest law firms in the state (presumably pro bono).

The decision of the Colorado Supreme Court was unanimous and followed a 2-1 decision against the inmate in the Colorado Court of Appeals which was reversed.

The damages in this individual case aren't huge, perhaps a few hundred thousand dollars at most, and possibly much less. But, the principal will probably significantly influence how sheriffs manage jails in Colorado going forward.

Video Recordings And Crime

Commercial Video and Crime

Someone shot and killed three people, seemingly at random, in a Walmart in Thornton, Colorado yesterday evening.

Because the store and its parking lot are covered with cameras, primarily intended to catch shoplifters, we can say with great confidence that the man arrested, a 47 year old man by the name of Scott Ostrem, is very likely the man who committed the shooting, even though this is one of the very rare cases where a multiple homicide shooter did not die in the act and was not captured at the scene of the crime.

His actions from the time he entered the store, to the shooting in the store, to his departure from the store in his vehicle, were all caught on camera, and the quality of security video has increased greatly from the days when it was introduced.

Whether or not Ostrem is guilty of a homicide crime, and which homicide crime he is guilty of, may depend upon a potential insanity defense and questions of the nature of his intent. But, there will be no reasonable basis upon which to doubt that he was the shooter whose firearm killed the three victims.

Dash Cam Video And Law Enforcement Liability

Video recordings are also significantly increasing the extent to which law enforcement officers are prosecuted and sued for crimes, even when they lie about the facts. For example, as the official synopsis of an opinion in the United States Court of Appeals for the 9th Circuit yesterday explained:

The panel held that in this case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack. Although Higgins testified that Zion was trying to get up, the panel determined that in light of the video footage to the contrary, the issue of whether Zion attempted to flee or attack involved a dispute of fact that had to be resolved by a jury.

The relevant portion of the opinion itself says (legal citations omitted, emphasis added):

Plaintiff doesn’t challenge Higgins’s initial nine-round volley, but does challenge the second volley (fired at close range while Zion was lying on the ground) and the head stomping. By the time of the second volley, Higgins had shot at Zion nine times at relatively close range and Zion had dropped to the ground. In the video, Zion appears to have been wounded and is making no threatening gestures. Lopez Video 3:04. While Higgins couldn’t be sure that Zion wasn’t bluffing or only temporarily subdued, Zion was lying on the ground and so was not in a position where he could easily harm anyone or flee. A reasonable jury could find that Zion was no longer an immediate threat, and that Higgins should have held his fire unless and until Zion showed signs of danger or flight. Or, a jury could find that the second round of bullets was justified, but not the head-stomping. 

Defendants argue that Higgins’s continued use of deadly force was reasonable because Zion was still moving. They quote Plumhoff v. Rickard: “[I]f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” But terminating a threat doesn’t necessarily mean terminating the suspect. If the suspect is on the ground and appears wounded, he may no longer pose a threat; a reasonable officer would reassess the situation rather than continue shooting. This is particularly true when the suspect wields a knife rather than a firearm.2 In our case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack. 

Higgins testified that Zion was trying to get up. But we “may not simply accept what may be a self-serving account by the police officer.” This is especially so where there is contrary evidence. In the video, Zion shows no signs of getting up. Lopez Video 3:01. This is a dispute of fact that must be resolved by a jury.

[2] It may be that, once on the ground, Zion had dropped the knife. Whether the knife was still in Zion’s hand or within his reach, and whether Higgins thought Zion was still armed, are factual questions that only a jury can resolve.

In the days before video of these incidents was frequently available, this excessive force lawsuit would very likely have been dismissed on the strength of the law enforcement officer's sworn lie in videotapes that the trial court had apparently sealed.

Even with video, the trial court judge granted summary judgment in favor of the police officer in the face of video evidence flatly contradicting the officer's testimony:

What happened next is captured in two videos taken by cameras mounted on the dashboards of the two police cruisers.1 Zion is seen running toward the apartment complex. Lopez Video 2:58. Higgins shoots at him from about fifteen feet away. Higgins Video 3:25. Nine shots are heard and Zion falls to the ground. Lopez Video 2:54. Higgins then runs to where Zion has fallen and fires nine more rounds at Zion’s body from a distance of about four feet, emptying his weapon. Id. at 3:00–03. Zion curls up on his side. Id. Higgins pauses and walks in a circle. Id. at 3:05. Zion is still moving. Id. at 3:00–12. Higgins then takes a running start and stomps on Zion’s head three times. Id. at 3:11–20. 

Zion died at the scene. His mother brought suit under 42 U.S.C. § 1983, claiming Higgins used excessive force. She also claims Higgins deprived her of her child without due process. She raised a separate substantive due process claim on Zion’s behalf, municipal liability claims and various state law claims. The district court granted summary judgment to defendants on all claims.

[1] The videos can be viewed at https://www.ca9.uscourts.gov/media/ 15-56705/evidence/Lopez (Lopez Video) and https://www.ca9.uscourts. gov/media/15-56705/evidence/Higgins (Higgins Video).

The appellate opinion also ordered that: "The videos—Exhibits A and B—shall be unsealed."

The simple truth is that the trial judge in this case (Central District of California District Judge James V. Selna) to whom the case has been remanded, a George W. Bush appointee, has no business serving as a judge in this case after ignoring the fact that two video recordings flatly contradicted the police officer's testimony and nonetheless finding his testimony to be credible. This dishonest and reprehensible conduct by judges in cases involving police officers, is, unfortunately, all too common.

Is Crazy A Discrete Or A Continuous Quantity In Politicians?

Some politicians are crazier than other politicians, with the term "crazy" in this sense, referring to someone whose views and worldview are very far outside the mainstream.

When I was in college, we had Representative James Traficant (who was initially a Democrat and became an independent later on), from Youngstown, Ohio a town that was hard hit by the decline of manufacturing in the rust belt, who ended his off the wall floor speeches in Congress with his trademark line from Star Trek, "Beam Me Up Scotty." 

At the moment, we have lots of other crazy politicians.

We have President Donald Trump who has no difficulty calling white black on a daily basis.

We have Vice President Pence, who worries about being corrupted by having lunch alone with a woman on professional matters and advances a Dominionist ideology.

Ted Cruz, in his campaign for the 2016 Presidential nomination somehow thought that banning birth control was one of the nation's most urgent priorities.

Further down the pecking order, is Butler County Sheriff Rick Jones, who among his many extreme and misguided positions, refuses to equip his deputies with Narcan, a drug which can almost miraculously prevent someone from dying from heroin overdoses, because he thinks that people who overdose on drugs deserve to die.

Somehow (and political theory can explain in part why this is particularly prone to happen in a two party system with closed primaries for each political party), extremists are vastly overrepresented in public office (as well as people who commit crimes).

Of course, there are plenty of politicians who aren't nearly so crazy. To pick one example from the other side of the aisle here in Colorado, former Attorney General and Colorado Springs Mayor John Suthers is not nearly as extreme as many of his Republican peers. I still disagree with him on most issues, but he comes from the establishment wing of the Republican Party, not the Conspiracy Theorist wing of the party.

The question I'm wondering about today, which spurred this post as a reminder to keep investigating it (I won't answer it in this post), is whether "crazy", as I've loosely defined it, among politicians holding elected office, is basically a smooth continuum, or if it instead is more of a discrete quantity with clearly clustered levels of crazy?

If crazy is a discrete quantity, then the ways to address it in our political system and ideally, to minimize its importance in the process, leads to one kind of approach (e.g. well informed screening processes for candidates to remove bad apples and effective processes to remove existing officials who "cross the line" too far, too many times).

If crazy is a continuous quantity in elected politicians, in contrast, then the ways to address it in our political system are probably different (e.g. movement politics and shifts in the behavior or character of the median voter in each district). This is because if crazy is a continuous quantity, then developing institutions that deprive the very most extreme politicians from power doesn't do much good as it only incrementally changes to political balance.

Lots of Cops Still Evil

The ACLU of Connecticut is suing state police for fabricating retaliatory criminal charges against a protester after troopers were recorded discussing how to trump up charges against him. In what seems like an unlikely stroke of cosmic karma, the recording came about after a camera belonging to the protester, Michael Picard, was illegally seized by a trooper who didn’t know that it was recording and carried it back to his patrol car, where it then captured the troopers’ plotting.

From here.

Police Killings Of Civilians

The bad news is that "Since the beginning of the year, police have killed 343 people. That’s 343 people in 110 days." In most developed nations, it is an order of magnitude smaller. 

The good news is that the U.S. isn't the Philippines, a country of about 100,700,000 people (about third of the population of the U.S.) where police killed about 7,000 civilians last year in the course of their war on drugs backed by President Rodrigo Duterte, who like President Trump is a small minded man with bad ideas who somehow got elected President.

The war on drugs approach also hasn't gone well for Mexico which has one of the highest murder rates in the world.

GOP Favors Let God Sort Em Out Approach To Wrongful Convictions

One of the strangest conceits of US law enforcement is the idea that punishing the innocent is a close substitute for punishing the guilty.

- Matthew Yglesias via Fully Myelinated.

This comes in response to an effort of the current administration to roll back Obama Administration efforts to exonerate wrongly convicted individuals.

Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.

In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.

Louisiana Makes Rare Finding That Sentence Is Unconstitutionally Excessive

A life imprisonment sentence entered for a man with three prior non-violent felonies (twenty, fifteen and eight years old respectively) for taking $15 out of a car set up by police as a "bait-vehicle" was vacated as excessive under the Louisiana constitution, but would have probably survived 8th Amendment review under the U.S. Constitution.

Both 8th Amendment jurisprudence, and the criminal statutes that make this kind of sentencing possible, are deeply flawed. It also represents a gross abuse of prosecutorial discretion in New Orleans (no doubt for reasons not unrelated to  the defendant's race), and the law enforcement tactics used to tempt someone who might not otherwise have committed the crime at all to commit a technical felony are dubious, even if this ruling upheld their legality.

Walter Johnson reached into a “bait-vehicle” and stole $15. The jury convicted him of simple burglary of a vehicle, a violation of La. R.S. 14:62. In due course, following Mr. Johnson‟s adjudication as a fourth felony offender under the provisions of La. R.S. 15:529.1 A(3)(b), the district judge sentenced him to imprisonment for the remainder of his natural life, which is the statutorily mandated minimum sentence. His life sentence, as imposed, was without the benefit of parole, probation or suspension of sentence. . . . 

Mr. Johnson appeals his life sentence without benefit of parole, probation or suspension of sentence as excessive, violating our state‟s constitutional protection against such sentences under La. Const. art. 1, § 20. The sentencing judge found that none of Mr. Johnson‟s four felony convictions involved any violence. Because we find that the “hidden death penalty”1 imposed in this case is unconscionable and shocks our sense of justice, and is thus excessive, we vacate the sentence as imposed. We remand this matter with instructions to the district judge to conduct an evidentiary hearing on Mr. Johnson‟s motion for downward departure from the statutory minimum sentence and to impose a sentence which is not, in the constitutional sense, excessive. . . .  

A police task force situated a Jeep Cherokee vehicle on a street in Uptown New Orleans. The Jeep was outfitted with interior and exterior surveillance equipment. The Jeep‟s driver side window was left down and its doors unlocked. A $10 bill and a $5 bill, the serial numbers of which were recorded by police, as well as a laptop computer were situated in the vehicle such that any passer-by could easily observe the money and the device. On the video surveillance tape, Walter Johnson is seen to be walking past the bait-vehicle and glances into it. He immediately reappears in the videotape and is seen snatching something from inside the Jeep. He then moves out of camera range. Shortly thereafter, the police officers confronted him and located the same two bills on his person. The laptop was undisturbed in the vehicle. . . . 

Our state constitution prohibits any law that subjects an individual to “cruel, excessive, or unusual punishment.” La. Const. art. 1, § 20. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. Cf. U.S. Const. Amend VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). This “deliberate inclusion by the redactors of the Constitution of a prohibition against "excessive‟ as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.” State v. Baxley, 94-2982, p. 4 (La. 5/22/95), 656 So. 2d 973, 977 (citing State v. Goode, 380 So. 2d 1361, 1363 (La. 1980)). 

A sentence is excessive and therefore unconstitutional if “it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” See State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (internal citation omitted). Thus, even though an imposed sentence may be within the statutory sentencing range, and therefore “legal,” it may still violate a defendant‟s constitutional right against excessive punishment. See id., at 1280; State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). And, although we give great deference to the legislature‟s authority to determine the appropriate punishment for a crime, we emphasize that “no penalty is per se constitutional.” Solem v. Helm, 463 U.S. 277, 290 (1983); see also State v. Pernell, 14-0678, p. 4 (La. App. 4 Cir. 10/15/14), 151 So. 3d 940, 944. 

B  

At the outset, we note that Mr. Johnson was sentenced under a provision of the Habitual Offender Statute that mandates a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence as a fourth felony offender. See La. R.S. 15:529.1 A(4)(b). Thus, the sentence imposed on Mr. Johnson is “legal” in the sense that it falls within the statutory range. See State v. Gibson, 16-0132, pp. 8-9 (La. App. 4 Cir. 3/16/16), 192 So. 3d 132, 137-38.  

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.2 

2 Notably, the United States Supreme Court has stated that an unconstitutional sentence “is not just erroneous but contrary to law and, as a result void.” Montgomery v. Louisiana, 577 U.S. ---, ---, 136 S.Ct. 718, 731 (2016). Thus, a sentence which is unconstitutionally excessive is also illegal. 

Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.  

We acknowledge that Mr. Johnson‟s life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. See State v. Johnson, 97-1906, p. 7 (La. 3/4/98), 709 So. 2d 672, 677. Legitimate sentencing goals notwithstanding, Mr. Johnson‟s status as a fourth felony offender “cannot be considered in the abstract.” Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. See id., at 297; see also Johnson, 709 So. 2d at 676. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged.  

Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft. See La. R.S. 14:67 B(4). Notably, the grades of theft are divided based on the amount misappropriated—the legislature set the maximum amount for misdemeanor theft at $750. The amount in this case is relevant— fifteen dollars is extraordinary in its triviality. 

We do not deny that, as a recidivist, Mr. Johnson should face some form of punishment. The inquiry of whether a sentence is grossly disproportionate, however, focuses on whether “a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal.” Rummel v. Estelle, 445 U.S. 263, 288 (1980) (emphasis added) (POWELL, J., dissenting). Although a lifewithout-parole sentence may well serve to deter recidivism, the immense severity of the punishment does not fit the crime(s) in this case.  

 “[L]ife without parole is the second most severe penalty permitted by law.” Graham v. Florida, 560 U.S. 48, 69 (2010) (internal quotation marks omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)). Only a sentence of death, which is not authorized in this case, exceeds it. Cf. La. R.S. 14:30 C (providing for capital punishment in first degree murder convictions).3

3 The United States Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)(citations omitted).  

Thus, Mr. Johnson has received the harshest punishment possible for his crimes. And, even though he is not subject to capital punishment, his sentence is comparable in that it irrevocably forfeits his life, freedom, and any aspirations he had for the future. Indeed, “[l]ife in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Graham, 560 U.S. at 79.   

Mr. Johnson is thirty-eight years old. He has three prior felonies: simple burglary in 1996, possession of heroin in 2001, and distribution of cocaine in 2008. Notably, the provision under which Mr. Johnson was sentenced subjected him to the same sentence as repeat violent offenders and sexual predators, despite his history of non-violence. The life-without-parole sentence imposed on him forgoes any possibility for redemption, and means that any character improvement or good behavior on his part is immaterial; he has been determined to be irredeemably and irreparably corrupt. And, barring the remote possibility of executive clemency, Mr. Johnson will spend the rest of his days in prison. See Solem, 463 U.S. at 303 (“Recognition of [the] bare possibility of commutation would make judicial review under the Eighth Amendment meaningless.”). We cannot condone a sentence which condemns Mr. Johnson to a life—and inevitable death—within prison walls, in light of his non-violent criminal history and the extraordinarily minor crime in this case.4  

4 Indeed, Louisiana courts have recognized that some sentences imposed legally under the state‟s Habitual Offender Statute are nevertheless unconstitutional. See, e.g., State v. Mosby, 14-2704, p. 1 (La. 11/20/15), 180 So. 3d 1274, 1274 (thirty-year sentence for seventy-two-year old nonviolent offender is “unconscionable.”); State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (twenty years for non-violent habitual offender may be excessive); State v. Ladd, 15-0772, p. 16 (La. App. 4 Cir. 4/13/16), 192 So. 3d 235 192, 244 (seventeen-year sentence excessive for defendant with history of drug possession convictions); State v. Combs, 02-1920, p. 6 (La. App. 4 Cir. 5/21/03), 848 So. 2d 672, 675 (life sentence excessive for defendant with history of non-violent offenses); State v. Burns, 97-1553 (La. App. 4 Cir. 11/10/98), 723 So. 2d 1013, 1019 (twenty-five-year old defendant sentenced to life as fourth felony offender is “young enough to overcome his addiction” and has “the possibility of a productive future.”). 

We thus vacate the life-without-parole sentence imposed on this defendant and remand for resentencing.  

Full opinion here.

Johnson's fate is now in the hands of a trial court judge in New Orleans who has immense discretion in sentencing in this case, but unlike the original verdict, has some discretion. In all likelihood, the final sentence will not be life in prison without parole, but will probably, at least, be the maximum sentence for the offense without a habitual offender enhancement.

Background

A local newspaper story has more background on the case.

He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law. 

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no chance for parole. . . .

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases. 

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. 

Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't "exceedingly rare" enough to allow a sentence below the mandatory 13-year minimum under the statute. 

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more often than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to data analyzed by the Pew Charitable Trusts. 

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. 

"If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law." 

According to a state corrections spokesman, Johnson has returned to prison frequently on probation and parole violations, as well as new charges, since his first conviction, in 1996, for simple burglary. 

He has shuttled in and out of prison, with convictions for heroin possession in 2001 and cocaine distribution in 2008. His record also includes a conviction for possession with intent to distribute counterfeit drugs, records show. . . . 

[Appeals panel] Judge Joy Cossich Lobrano agreed with them in denying Johnson's bid to overturn his conviction — he had argued entrapment — but declined to declare his life sentence excessive. Lobrano said she would have ordered Herman to hold a hearing first before making that determination.

Colorado Habitual Sentencing Compared

Colorado's recidivist sentencing regime is not as draconian as that of Louisiana.

* One problem with the Louisiana statute is that it classified an offense that should have been a misdemeanor as a felony. Colorado law would not classify removing $15 from a vehicle without breaking into the vehicle as a felony. It would be a class one petty offense, see C.R.S. § 18-4-401 and would not be eligible for habitual offender enhancement which apply only to felony offenses.

In Colorado, this offense by this offender would have resulted in up to a six month jail sentence (about half of which could be reduced for good behavior in addition to any credit for time served), a $500 fine, court costs, and restitution or seizure of the $15 stolen.

* Another problem is that Louisiana unreasonably elevated a prior mere drug possession offense to a felony, something that states like Colorado are moving away from now. One of this man's prior felonies, possession of heroin, is currently a misdemeanor in Colorado, although it would have been a felony at the time.

* A third problem is that it allows life imprisonment without parole for less serious new offenses and prior offenses. Colorado's statutes require more serious priors, or more recent priors, or do not carry a life imprisonment consequence and instead have an enhanced sentence proportionate in some way to the current offense. No habitual criminal statute in Colorado carries a life without possibility of parole sentence.

Colorado's life in prison with parole after forty years for habitual criminals statute requires that the current conviction be for a class 1 felony (first degree murder or aggravated kidnapping), a class 2 felony (e.g. second degree murder), or a class 3 violent felony (e.g. armed robbery), specifically excludes burglary offenses, and requires two prior convictions of similar seriousness, or a current conviction for a violent felony and has a previous habitual criminal conviction. C.R.S. § 18-1.3-801(1) and (2.5).

None of this man's priors wold have counted for the purpose of this Colorado statute even if he had committed a felony this time.

Colorado's other general habitual criminal provisions requires a felony conviction two prior felonies within the last ten years that are not of the least serious (class 6) class, and triples the maximum sentence, C.R.S. § 18-1.3-801(1.5), or to a felony conviction other than a minor drug conviction with three prior felonies that are not the least serious at any time resulting in quadruple the maximum sentence, C.R.S. § 18-1.3-801(2).

He would have only one prior for the purpose of tripling statute, but might have been eligible if he had committed a Colorado felony for the quadrupling statute.

Colorado's habitual burglary statute includes only first or second degree burglary, not lesser burglary offenses, requires a prior serious burglary offense to be within the last ten years, and sets a maximum sentence of double the usual offense, and a minimum sentence equal to the usual maximum sentence. C.R.S § 18-13-804.

He would have had no priors for the purpose of this statue in Colorado.

Colorado's habitual offense statutes, unlike those of some states, also only allows one strike for criminal episode, even if multiple convictions for felonies resulted from that criminal episode.

* Finally, don't take this blog post as a definitive statement of Colorado recidivist sentencing law. While I capture the highlights, there are several fine details not applicable in this fact pattern that are relevant.

Arrests Are Often Deadly

Official statistics have in the past put justifiable homicides at the hands of law enforcement in the hundreds. But, a lot more people die when being arrested:

An estimated 1,900 people died while being arrested by police in America in 2015, according to new figures from the federal government. The deaths include both those who died directly as a result of police use of force and those who died while being restrained by police, by suffering a heart attack for example. 

Sixty-four percent of the deaths were homicides, including justified homicide by a law enforcement officer. Eighteen percent were suicides, 11 percent were accidents, and less than 2 percent were natural. The rest of the deaths were undetermined, unknown, or subject to an incomplete investigation. While past reports issued by the Bureau of Justice Statistics addressed the demographics of those who died during arrest, the report published last week did not include such a breakdown. 

The numbers are the first to be published since the Bureau of Justice Statistics overhauled its arrest-related death-counting methods in 2015. The data now better aligns with newspapers’ and activists’ estimates, which historically were much higher than the federal government’s, FiveThirtyEight reports. And it helps to fill a long-growing desire among activists and officials for better government data on police use of force in general.

There were about 10,800,000 arrests in 2015.  There were about 19 deaths per 100,000 people arrested in 2015.

What Is Wrong With Denver DA Mitch Morrissey?

Moses-EL spent 28 years in state prison for a 1987 rape in Denver’s Five Points neighborhood that he has said he didn’t commit. The only evidence against him was that the victim said his identity came to her in a dream – after she had named three other men as her possible attackers. The first man she named, LC Jackson, since has confessed to the assault. 

Partly because of an error made by district attorneys, Denver police threw all the DNA evidence in the case in a dumpster. 

A Denver district judge vacated Moses-EL’s conviction last December. Despite a lack of evidence against Moses-EL – and Jackson’s sworn confession in court – DA Mitch Morrissey’s office said last winter it will re-prosecute the case.

From the Colorado Independent.

The trial is set to begin November  7, 2016, two months before his term ends and a day before he becomes a lame duck.

It is hard to see how this prosecution produces a conviction that can hold up.

Morrissey's departure won't be a moment too soon.

In Other Colorado Criminal Justice Injustice News

A former Sterling Correctional Facility inmate suffering multiple physical disabilities repeatedly asked to be transferred away from an inmate who threatened him and choked him with his own cane, but instead guards put him in the same cell with the man. 

Soon after Anthony Cipriano was placed in a cell with Kirk Popken, the man Cipriano feared, Popken attacked him from behind, fracturing his skull and nearly killing him.

On Friday, Boulder attorney Alison Ruttenberg filed a civil lawsuit on behalf of Cipriano naming two correctional officers, identified only as “Sgt. Nelson and Officer Brown,” as defendants. 

Cipriano, who is currently on parole in Southern Colorado, is seeking damages and attorneys fees, claiming that his Constitutional rights to be free of cruel and unusual punishment were violated.

From here.

The victim's physical disabilities are also largely attributable to events during previous periods of incarceration for the same offense.

The lawsuit says that a prison health care worker also took away Cipriano’s wheelchair in retaliation after Cipriano called her “fat,” requiring him to walk with excruciating pain because a piece of metal was lodged in his right foot, the lawsuit says. 

Cipriano was sentenced to four years in prison in 2011 for a conviction of stalking and violating a protection order. He broke his hip in the Douglas County jail and was required to wear adult diapers following an infection in his pelvis because he had no bowel control, the lawsuit says. He also suffered from the foot infection.

The case number in the U.S. District Court for the District of Colorado for Cipriano v. Nelson is 1:16-cv-02510. It was filed on October 7, 2016

Former Colorado Springs Sheriff Finally Indicted Last Week

The former Sheriff of El Paso County, in which Colorado Springs is located, was indicted last week. The only real mystery is why prosecutors waited until he had been out of office for months when his misconduct was widely known.  This particular incident involves a women who was a victim of domestic violence at the hands of a cop.  As Colorado Pols explains:

Terry Maketa, former El Paso County Sheriff, was indicted Wednesday, May 25, 2016, by a Grand Jury on six felony counts, including extortion, tampering with a witness, and second-degree kidnapping. The latter two charges stem from Maketa and codefendants Paula Presley and Juan San Agustin intimidating a witness to keep her from testifying against her abuser, a deputy under Maketa’s supervision. From Benzel and Sun’s Gazette reporting: 

After a sheriff’s deputy was arrested in August 2013 for assaulting his girlfriend, Maketa directed the woman to recant her story and tell investigators she “instigated the incident in order to allow (the deputy) to get his job back,” the indictment alleges. When the woman, a civilian jail employee, followed his instructions and provided a false confession about being “the aggressor,” she was arrested on suspicion of domestic violence, assault and driving under the influence.  

“Detective Lisa Kaiser, the interviewing and arresting officer, did not believe she had probable cause to arrest (the woman) for either crime, but arrested (her) because the order came from her superiors,” the indictment says. 

Maketa was booked and bonded out of jail on Thursday, May 26 . Maketa had resigned in disgrace in 2014, ahead of a recall effort, amidst charges of sexual misconduct, corruption, and incompetence in his office.

Previous coverage here.  He threatened to deport detainees when the federal government failed to do so.  He was also a constitutional sheriff, which basically means that he was willing to engage in treason by declaring war on federal officials, a problem that hasn't gone away as NPR reports today.

Chicago Ignores The Right To Counsel

Colorado used to make misdemeanor defendants plea bargain before having counsel appointed, which federal courts subsequently held was unconstitutional.  So, Colorado district attorneys have had to reform their practices.

Chicago is worse.  Only 1% of people incarcerated in its jails have seen a lawyer, in a clear violation of the constitutional right of indigent criminal defendants to be represented by counsel at public expense.  Of course, this isn't the only thing rotten in Chicago, which is also violating numerous other constitutional rights of its citizens in its criminal justice process.

OFF TOPIC BUT RELATED:

The criminal justice system is notorious for defending police officers who behave badly no matter how obvious it is that they have screwed up.

A recent case out of San Diego (in which the police lost an appeal to the 9th Circuit) in which police mounted a massive armed raid on a 7 year old girl's birthday party despite quickly learning that the tip that they received had no connection to reality is typical.  Police authority evaporates almost instantly in the absence of probable cause or a reasonable suspicion of criminal conduct, but police aren't at all good at backing down when they learn that a situation is far different from what their tip led them to believe.  Yet, the government has strenuously defended the bad police conduct at trial and on appeal, to no avail, rather than conceding that obvious misconduct was wrong.

Cowardly Chicken Little Colorado Sheriffs

I have pretty much no respect whatsoever for the 41 Colorado Sheriff's who have written a letter to President Obama explaining that they are terrified that Guantanamo Bay inmates held in a maximum security prison in Colorado would "significantly - and unnecessarily - endanger our citizens."

This simply does not pass any reasonable reality check and makes this prisoners out to be comic book supervillains, rather than the bunch of mostly low level, mostly Yemeni al-Queda functionaries who haven't even committed any war crimes, that most of them are in fact.

The notion that some dangerous al-Queda fifth columnists would try to spring these detainees from a Colorado prison is simply laughable.  They would stand out like a sore thumb and have a very long way to go to a safe haven, unlike the current site in Cuba, where the Cuban government would likely embrace with open arms any escaped detainee and could do so with impunity.

The letter says much more about how cowardly and detached from reality most of these local government elected officials in Colorado are, than it does about the realities of the policy issues involved.

This is simply partisan demagoguery at its worst.  The politicians, including a few Democrats, who have given any credibility to this argument, deserve similar scorn.

Oklahoma Court To Execute Probably Innocent Man

Richard Glossip is probably innocent. But, it is a travesty even if he is merely possibly innocent. No reasonable jury would have convicted him of murder applying the beyond a reasonable doubt standard, and sentenced him to death (which arguably invokes an even higher standard of proof) if they had had access to the relevant evidence. This was a weak case almost entirely supported by testimony from a confessed killer who actually did the killing, who received a life sentence in order to secure testimony that they fed to the confessors killer to make the case that Glossip put him up, to it in the absence of any other meaningful evidence. There is strong evidence that the confessed killer would have recanted his story if he didn't believe that he could receive the death penalty for doing so. It is a case of clear law enforcement and prosecutorial misconduct.

But, after an extraordinary two week stay issued four hours before his execution, the Oklahoma Court of Criminal Appeals (the highest court in the state in criminal matter) has denied him relief by a 3-2 vote and he is scheduled to be executed on Wednesday at 3 p.m. local time.

Rocky Ford a.k.a. Bad Copville

Rocky Ford is not a town with a good track record of quality control.

For the past few years, until a few months ago, the small town in Southeast Colorado was known for the disastrous listeria ridden cantaloupes called "Rocky Ford Sweets" from Jensen Farms that killed thirty-three people in 2011.

Now, it has another claim to infamy.  It turns out that the town made it its business to hire cops who had already been discovered to be bad apples.  Four out of ten officers on the force have prior serious criminal records or histories of discipline in previous law enforcement jobs.

In November of 2014, one of those bad cops with a history of using excessive force shot an unarmed man in the back, killing him, and then pepper sprayed the man and fled, while on duty.  Unlike most cases of this type, the bad cop who did it was fired and charged with second degree murder in a prosecution that is currently in progress.

This "second chance" hiring policy may have been modeled on the Vatican's policy of relocating priests who sexually abused children to new posts where families of new potential victims didn't know about the priests' prior crimes.  The policy didn't work out well for the Roman Catholic Church.  It turns out that their second chance priests (and often there were many "second" chances), had a strong tendency to reoffend and require the church to engage in more cover ups.

It also doesn't turn out to be working that well for Rocky Ford.

There is absolutely room in the world for giving people second chances in life.  But, giving someone a second chance in life doesn't mean that one should give that person who has proven himself to be ill suited for a task a second chance in a position of public trust ripe for a repeat of the mistakes that this person made the last time.  A second chance like that is just another name for corruption.

If you give a priest who abused children a second chance (and that second chance should come only after the priest and the church apologizes to the victims, tries to compensate the victims, reports the incident to authorities and punishes the priest), that second chance should be an a monastery or a prison ministry, not a parish serving young families or a youth camp.

If you give a cop who screwed up a second chance, it should be in a position that doesn't involve giving him a gun, or putting him in a position of authority over others, like driving a truck, working on a farm, or framing new apartment buildings.

Of course, as the Denver Post's excellent investigative journalism on this story (credit where credit is due in an increasingly understaffed newspaper) points out, the Colorado Board of Peace Officer Standards and Training, the licensing body for state and local law enforcement officers in the state, is also to blame.  At least 39 other states make it harder for bad cops to remain licensed as law enforcement officers and at least 18 other states require employers of bad cops to inform state authorities when police officers are fired or resign.  In contrast, "Colorado will not even share the employment history it does have with the chiefs wanting to know about an applicant's background."

If the state licensing authority for law enforcement tells law enforcement offices that an individual meets state standards to do the job, it is natural that offices with tight budgets, like Rocky Ford, are going to hire bottom of the barrel candidates in order to make it possible for them to pay bottom of the barrel salaries.

Yet, when the government puts someone on the street with expanded authority relative to an ordinary person to use deadly force, qualified immunity from civil liability, and deadly weapons, privacy should take a back seat to public safety.

Not all tragedies can be prevented.  Some are inevitable.  But, we need to do a better job at preventing the tragedies that are eminently predictable.

Bad Cops At Large In Pennsylvania

Collingdale, Pennsylvania policeman Carl White whose conduct is recounted in a recent federal court opinion is yet another glaring example of what is profoundly wrong with police conduct in the United States.  Hat Tip to VC.

The Judge whose background is in civil litigation (Gerald McHugh, of the Eastern District for Pennsylvania, nominated by President Obama and confirmed and commissioned in March of 2014 by the U.S. Senate), recounts the record in the case:

On February 22, 2014, Defendant Officers Carl White and William Eckert went to Plaintiffs’ home in response to a call made by their next-door neighbor, who allegedly complained that Mr. Gaymon’s mother (a guest in their home at the time) had parked her car so that the front tire was on the curb in front of the neighbor’s house. Upon arriving, the Defendant officers confronted Plaintiffs as they were leaving for a family outing. According to the Complaint, Defendant White began yelling at them in an aggressive manner, asking who spit at their neighbor. 

Plaintiffs Mrs. and Mr. Gaymon explained that they had done nothing wrong, and that their neighbor falsely accused them of spitting at her. Defendant White then allegedly approached Mr. Gaymon in an antagonistic way, placing his face within inches of Mr. Gaymon’s face while yelling at him. 

Mrs. Gaymon, concerned about the officer’s aggressive conduct, took out her cell phone and began making a video recording. Officer White approached Mrs. Gaymon, at which point she moved inside her home, continuing to video White by either leaning around the storm door or through the window in the door. 

According to the Complaint, White ordered Mrs. Gaymon to stop videotaping him, and declared that her doing so violated Pennsylvania’s wiretap statute. Her husband and daughter, who were standing in front of their home, told White he was incorrect, and Mrs. Gaymon had a right to record. White told Mrs. Gaymon that if she did not stop taping him, he would enter her house, seize her phone, and arrest her. 

Mrs. Gaymon told White he was not permitted to enter her home. He walked up the stairs to the front entrance, but before entering, he grabbed her daughter Sanshuray, handcuffed her, placed her under arrest, and threatened to deploy his Taser against her. Officer Eckert then removed Sanshuray from the scene. 

Officer White is next alleged to have entered Plaintiffs’ home and ordered Mrs. Gaymon again to stop videotaping him. Mrs. and Mr. Gaymon reiterated that they did not consent to his entry, and he was not permitted to be in their home. Ignoring them, Defendant White allegedly grabbed Mrs. Gaymon, pushed her up against the wall, and held his Taser to her chest. 

At this time, Defendant Officers Eckert and others identified as “John Does” joined Officer White and placed Mrs. Gaymon under arrest. They removed Mrs. Gaymon from her home, placed her in a separate police vehicle from her daughter, and drove both women to the Collingdale Police Station.

Criminal disorderly conduct charges were summarily dismissed after the magistrate heard Office White's testimony, and this suit followed.

What is going on here is far deeper than just a hot headed police officer going off the handle.  It is a case of a police culture that is so disconnected from the law and reality that the two have almost no connection.

People like Carl White have no business wearing a badge or carrying a gun or taser. They are a disgrace to our country. In cases like these, civil liability is almost secondary to the relief that we as members of the general public really need, which is to permanently black list people like him from bearing arms in any capacity, or serving in a law enforcement or security position, public or private.  We don't need criminals with a badge like Carl White in any office of trust or honor in the United States.  His acts are an insidious form of a corruption that is too common and needs to stop now.

An across the board ban on gun possession to people found civilly liable for civil rights violations akin to the current prohibition on individuals with restraining orders against them, misdemeanor convictions, felony convictions, and people who have been involuntarily committed would be completely appropriate.

Law enforcement officers do not have to be the enemy.  But, in the United States, a lot of them are trying damn hard to be.  The reasonable, law abiding civilians need to be back in charge.  Shamelessly, the borough's website boasts that it had a "world-class police department" consisting of eight officers and one other employee, at least two of whom were involved in this incident.

The prosecutors who acceded to the officer's request to press disorderly conduct charges should also be sanctioned.  Civil liability is largely barred by absolute prosecutorial immunity, but that wouldn't preclude a federal criminal civil rights prosecution, state bar ethics sanctions, or disciplinary action from the DA such as being fired from their at will employment with that office (as a result of conduct that has imposed a significant financial burden on a local government in their jurisdiction).

This is the point at which the defense lawyers representing the defendants should tell his clients to dig deep into their pockets (or more realistically, that of the municipality that will almost surely indemnify them) and offer to settle the case promptly.

Alas, it is far more likely that they will instead double down and continue to try to defend indefensible conduct in a way that will run up the legal fees for both sides that the defendants will ultimately end up paying.  There is no way to put lipstick on this pig.

Denial of qualified immunity is usually an issue that can immediately be appealed, and I fully suspect that the issue will be, because fighting the merits is a lot less pleasant than trying to argue that legal cases are ambiguous if you twist them just right.  Then again, it wouldn't be a bad legal strategy for the defense to confess liability and leave the jury to a canned admission, two minutes of your client on the stand apologizing profusely, and a damages case that doesn't necessarily support a huge dollar award due to a lack of major physical injuries or property damage, particularly if they could find a favorable "cop friendly" jury in the larger jury pool of the federal courts than the state court, by making challenges to cause and pre-emptory challenges to anyone else.

One other key bit of factual background from a conservative blog reporting on the incident:

When you read about the citizens you will read they are a married man and wife, both college educated, living with their family. You will read they live in a home for many years, and they both of nice jobs. You will read they owned their own home. You will read they responded normally and attempted to de-escalate the situation. You will read they retreated from the police officers and were pursued. You will assume they are a normal white suburbia family (I did). Another reason you would assume they were white is the articles or the judges opinion ever even mention race or racism. In a way that is refreshing, and another reason we are passing this on to you. They just mention this storm trooper cops assaulting another American family in their home. Well they are not white. They are a black family and the cops that savaged them were white. 

Video is available at the blog link.

About Collingdale

Collingdale is a middle class (by income, working class to poor by housing values), recently majority black, first ring streetcar suburb of Philadelphia with 8,786 residents in the 2010 census, and less than one square mile of land, all of which is in Delaware County, Pennsylvania.

The proportionate growth in the black population of Collingdale is recent.  The borough was 92% white in 2000, was 56% white in 2010, and has since that time dropped below 50% white.  Almost all non-white individuals in the borough are black.  Sometime between 2000 and 2010 the neighborhood reached a "tipping point."

In 1998, the average housing price was a mere $61,000 and now just $82,000.  It is a fair guess that the city is historically white Catholic and only in the last two or three decades has seen itself go from being a working class white neighborhood, to a majority middle class black one (not that you would ever guess that from images posted on the borough website).

Eleven term Mayor Frank Kelly and police chief Robert Adams (both white as are all the police officers with photos on the municipality's website) have all sorts of power to throw the bad cops under the bus and disavow their actions to protect the city from the consequences of their conduct, but it is highly unlikely that he will do so.  All seven members of the borough council are white, as is the District Judge for the borough who is apparently related to a councilman, the borough constable (who is on the borough council), the borough manager (the equivalent of a city manager), and pretty much all of the other officials (some related to each other) with the exception of at least one black fireman.  As of 2007, the borough had no or almost no black owned businesses (out of 498 total).

If this all sounds a lot like Ferguson, Missouri, you are not imagining things.  The recently majority black small municipality has an almost entirely white slate of elected officials and city employees in a roster that shows heavy signs of nepotism.

An Unnecessary Police Homicide In Boulder, Colorado

Once again, law enforcement unjustifiably kills a suspect who was not obedient to them, and was rude as well, but did not pose a real threat.  Hundreds of such incidents have taken place so far this year.  British police have killed just 53 people in the last 155 years. Most European police departments, the Japanese police, and many other world police departments, have similar records of using deadly force extremely sparingly.

You would think that the heightened awareness that these incidents, whose frequency is mostly a result of greater media coverage and more widespread availability of video recordings to disprove police lies about these incidents (which remain common), would have lead to restraint by police officers nationwide.  But, if you thought that, you would be wrong.  These incidents just keep happening, even in places like Boulder, where the local governments are controlled by liberals and the police are used to dealing with unruly college students.

What does it take to bring about change?

The incident describe below happened at this balcony in the apartment building shown below.

[P]olice were called to an apartment at 1841 19th Street in Boulder at around 10:30 p.m. on a report of a man thought to be under the influence of LSD who was attacking others with a knife. Upon their arrival, officers found an injured party who was taken to the hospital and is expected to recover. . . . 

[The Boulder Daily Camera] reports that officers encountered [Sam] Forgy [a 22-year-old who was majoring in applied mathematics at CU Boulder] as they were climbing the stairwell to his apartment, on the second floor of the complex. He was nude and holding a hammer. The cops maintain that they repeatedly ordered Forgy to drop the hammer. 

Police feared Forgy was going to jump onto them with the hammer, the Daily Camera notes — so one officer tried to Tase him. When the Taser failed to fell Forgy, a second cop fired his gun, killing him. The number of shots hasn't been specified to date; witnesses estimate that there were between three and five. Moreover, one person who heard the exchange said the shooting of the gun and the Taser were close to simultaneous.

Via Westword citing a Boulder Camera story. An eye witness account of what happened in the Daily Camera story was less favorable to the police.  In that account, Forgy, who was also naked, was already unarmed when he was Tased and shot by the police:

[Nikki] Larsen said she and her husband witnessed the shooting from their deck about 75 yards away. She said they saw police officers run up the stairs before stopping and ordering the suspect to come out. 

"We just saw (officers) all running and heading up the stairwell, and they paused on the landing just before the top," Larsen said. Forgy "came out and was standing on the landing, and the officers said, 'Put the hammer down! Put the hammer down!' And he sort of squatted and put the hammer down." 

Larsen said she heard the suspect yell, "I'm so tired," then turn to his right and make what appeared to be a lunging motion. 

That's when Larsen said she heard what she believes was a Taser, then three gunshots.

Sam Forgy was killed when police shot him on Monday.

I understand that sometimes people point guns at or shoot police, or rush at them with knives, and that responding with a firearm may be their only choice.

It is very hard to conclude that a naked guy on drugs holding a hammer precariously standing alone on a fifteen foot high stairway balcony railing poses the same kind of threat.

Are the Boulder police incapable of backing off and trying to defuse the situation?

Do they not realize that a hammer is rarely a deadly weapon when wielded by a naked college student on drugs who can barely maintain his balance on a balcony railing if they stay several yard away from him?

Are they so unsure of their own physical prowess that they think that two of them, after all the training that they have received, fully clothed and armed with batons and mace are no match for a naked college student on drugs with a hammer?

I am very skeptical of the police claim that Forgy was armed with a hammer when he was Tased and shot when a publicly named, third party eye witness has given a contrary statement to the press.

The officer who fired this shot does not belong on a police force, anywhere.  His actions were at a minimum cowardly and proof of his incompetence.  Worse, they tend to show a deeply flawed culture in the force, that shoots first, and considers other options only after the suspect is dead. Arguably, this is really a case of simple unpremeditated, perhaps heat of passion, murder.

There is simply no version of the facts available to us in which this shooting was justified as self-defense or to carry out an arrest.

The Boulder Police Department should promptly fire the officer who killed Sam Forgy and then an independent individual should review the case to see if criminal charges should be brought. Rather than an independent individual, however, the key decisions in this case will be made by DA Stan Garnett and police Chief Greg Testa, both of whom have a long term strategic interest in siding with police who engaged in misconduct whenever possible.

The Boulder Police Department and other investigators know which officer fired the shot, but have not disclosed this information to the public and the press:

A spokeswoman for the city of Boulder told CBS4 the officer who fired his weapon has been with the Boulder Police Department since 2013 and is now on paid administrative leave while officials investigate, which is standard procedure.

Inexperience may have played a part, or this officer may have been a bad cop cycling from one department to another. This relevant information hasn't yet been disclosed, although it will almost inevitably come out at some point.

UPDATE (June 31, 2015): The police who fired the shot was identified as Dillon Garretson in today's Denver Post.