Monthly Archives: March 2016

How Officers Get Away With False Arrest

By David “Double D” Devereaux

The latitude given officers in cases of false arrest is often troubling. Take the case of Adam Miller, a motorcyclist from Richland, Washington, that was recently arrested based on an officer’s false identification of Miller. An officer was looking for a black motorcycle that he claims he had clocked at 126mph multiple times throughout the day. Miller was riding a red motorcycle and exiting a parking lot when he was detained and then arrested by a Washington State Patrol trooper. Although Miller was found not guilty based on this obvious detail in traffic court, what recourse does Miller have to recover costs related to his seemingly false arrest?

A Case Of Mistaken Identity and False Arrest

Miller, writing to the MPP, describes the incident in detail:

“Back on Memorial day of this year, in Richland, Washington, I hopped on my RED 2010 VMAX for the first time in a week, and went to WINCO to rent a couple of movies. I was leaving the parking lot when a state trooper pulled up behind me and flipped on his lights. I didn’t think much of it, and pulled over across the street. I was not dressed for much more than a short ride, red t-shirt, blue jeans, helmet and boots.

He accused me of doing 126mph, and that he had clocked me multiple times throughout the day doing various illegal speeds. He claimed he had the entire area looking for me, and that I was being a menace to the holiday traffic by riding the way I was. I asked how in the world he would look in a grocery store parking lot to find me even If I was running and or speeding like this? He made it very clear the reason he knew I was there was that another officer had reported me in the parking lot.

From here I am booked and had to pay 1000 bucks to get out.

I absolutely did not do this! I never approached the speeds I was accused of.”

The Trooper Was Looking For A Black Bike, Not A Red Bike!

Miller was given a public defender, but decided to hire an attorney anyway. Upon discovery, it became apparent that Miller was falsely identified. Miller writes, “The discovery painted a much much different picture than the one this officer painted in his report. First, a state patrol vehicle had no audio and no video of anything. It wasn’t functioning.” Conveniently, technology intended to provide public accountability related to police activity was inoperable depriving Miller, and the general public, a way to corroborate some elements of the story.

Miller continues, “Second, the [other] officer he claimed called in my location doesn’t exist. In fact, the video evidence even corroborates this, given that the only other officer on scene didn’t show up till after I was in the process of being pulled over and arrested. In fact, I was damn near in cuffs by the time the second officer even showed up.

Third, this officer called out, not once but twice, a BLACK BIKE, with black helmet. Google a 2010 VMAX, and see for yourself, my bike is bone stock, no mods visual or otherwise. IT’S RED! The last call out before he arrests me, and I quote, “same bike, red shirt”.”

In traffic court, Miller prevailed. Clearly Miller was not riding a Black bike and was not the individual the WSP trooper thought he was. Miller writes, “The case has now been tried, and a not guilty verdict returned. The officer was proven to be “less than forth coming”, aka lied through his teeth.”

Despite Not Guilty Verdict, Legal Costs Threatening Financial Ruin

According to Miller, despite being found not guilty, he incurred almost $5k in legal costs and as a Veteran and current student he is near financial ruin.

“I have a spotless record minus some MINOR speeding infractions, I have never been arrested, I am a veteran of Bosnia, OEF, and OIF. I am a full time college student currently, and my budget is quite fragile, the 4500 this has cost me, not to mention the personal leg work I have done to save costs, is set to put me into financial ruin, I have less than a month before I am no longer viable financially, and that 4500 would certainly bridge a gap. This situation has caused some serious undo stress and emotional entanglement, . . . My life is being ruined by an officer who chose to act instead of think.”

Can Miller File Suit For False Arrest?

So what recourse does Miller have? He was arrested and shouldn’t have been. But it’s not that simple. Establishing that there was not reasonable suspicion to stop Miller may be difficult because it requires demonstrating that the officer specifically targeted Miller knowing that he wasn’t the individual he was looking for. Miller says, “I have had 3 different lawyers look at this case now, and all of them are of the same conclusion. “This officer lied, and this case doesn’t hold water.” I inquired of my lawyers about a civil suit, and they said that unless I can prove the officer specifically targeted me I have no case.”

According to findlaw.com, false arrest is “the claim that is most often asserted against police”. These claims are based on police violating Fourth Amendment rights against unreasonable seizure. “If the officer had probable cause to believe the individual had committed a crime, the arrest is reasonable and the Fourth Amendment has not been violated. Police can arrest without a warrant for a felony or misdemeanor committed in their presence.”

But what about cases like Miller’s, where the information the officer relied upon turns out to be false? Or the officer is mistaken or confused? According to findlaw.com, “even if the information the officer relied upon later turns out to be false, the officer is not liable if he believed it was accurate at the time of the arrest.”

So the question in Miller’s case is, “What did the officer believe at the time of the detention and arrest?” In other words, did the officer believe that Miller was the motorcyclist that he claims he observed doing 126mph? Was he merely confused because of the black helmet? Was Miller just in the wrong place at the wrong time?

Was Miller Specifically Targeted?

On the other hand, the WSP trooper’s probable cause arguably relies on questionable foundations. Miller was riding a Red motorcycle and radio transmissions clearly prove that the trooper called in a Black bike. Maybe with this alone, the trooper still has plausible deniability. Maybe he made a mistake. But, according to Miller, other factors reveal that the trooper relied on blatantly false claims to bolster probable cause.

Remember the other trooper that allegedly called in Miller’s presence in the WINCO parking lot that, upon discovery, does not appear to exist? Or what about the fact that all of the video and radio transmissions were inoperable/not functional eliminating the opportunity for accountability? Was this trooper upset with the actions of a speeding motorcyclists earlier in the day, so much so that he targeted the first sport bike rider he saw?

Conclusions

The standards for establishing false arrest give so much deference to law enforcement that victims like Miller are often not given the opportunity to recover attorney fees or other damages incurred as a result of their arrests, despite being found innocent of any wrongdoing. Miller has approached 3 attorneys that all believed the trooper lied to establish probable cause. But they also believe proving the trooper targeted Miller would be difficult to establish. There ought to be an avenue for victims like Miller to recover attorney fees and expenses related to an arrest relying on the foundation of inaccurate information or an officer’s mistake, however unintentional the mistake is claimed to be. A trip to the store should not cost anyone thousands of dollars due to a mistake made by law enforcement.

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Fort Worth Officer Pepper Sprayed Bikers, is this Attempted Murder?

By David “Double D” Devereaux

Many are familiar with the recent video depicting a Fort Worth police officer, now placed on administrative leave, pepper spraying a pack of motorcycles as they ride by. The bikes are forced to veer into another lane attempting to avoid being sprayed. This is clearly a case of officer negligence and excessive use of force. But could this be considered deadly force or even attempted murder? Pepper spraying moving motorcyclists on a roadway could easily lead to serious injury or death. This is just another incident in a well-established pattern of evidence justifying a law addressing motorcycle profiling in Texas.

Officer Violated Reasonable Use of Force Standards

The officer’s actions clearly fall outside the lines of legal behavior. It is not an officer’s job to punish suspects. Suspects, even those arrested, are presumed innocent until proven guilty. Punishment in our criminal justice system is determined in the judicial arena, after an individual has been found guilty. So an officer’s use of force is confined to effectuating an arrest or detention or a threat to public safety or the officer.

An officer can use force in order to arrest or detain an individual. An officer may use only that force which is both “reasonable and necessary to effect an arrest or detention.” Anything more is excessive force. Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). Clearly spraying pepper spray at a pack of passing motorcycles is not reasonable or necessary. In fact, he had a truck detained at the time the motorcycles passed.

  • There is no indication that the officer was attempting to arrest or detain the passing motorcycles. The bikes were not moving at a high rate of speed or driving recklessly at the time they were sprayed. The officer makes no attempt to have the motorcycles pull over if he did believe some violation had occurred.
  • There is no indication that the passing motorcycles are an immediate threat to the officer or the public’s safety. There is no obvious justification for the use of force. And there is definitely no justification to use this level of force.

Fort Worth Officer Pepper Sprayed Bikers…Was This Deadly Force?

In fact, it was the officer that represented a threat to public safety and arguably was initiating deadly force. Although it’s true that pepper spray will likely not kill anyone, consider the totality of the circumstances. Motorcycles were moving in a pack on the roadway with many motorcycles and other vehicles. This officer attempted to spray the moving motorcycles with pepper spray which, if effective, creates a very high likelihood of an accident resulting in serious injury or death.

The circumstances do not conform with judicial guidelines on the constitutional use of deadly force. These motorcyclists are not threatening the officer or another person with a deadly weapon and they do not pose a threat of serious physical harm or death to the officer or another person. And even if a threat could be articulated, the officer made no attempt to give a warning before initiating deadly force.

In Tennessee v. Garner, 471 U.S. 1 (1985), the Court articulated “three circumstances when an officer can use deadly force: first, when the officer is threatened with a deadly weapon; second, when the officer has probable cause to believe that the suspect poses a threat of serious physical harm or death to the officer or to another; or third, when the officer has probable cause to believe that the suspect has committed a crime involving threatened or actual serious physical harm or death to another person. The Court also noted that, when feasible, a warning should precede the use of deadly force. (See Law Enforcement and the Law with Ken Wallentine, September 5, 2007)

Was This Attempted Murder?

As commonly understood, “attempted murder is the incomplete, unsuccessful act of killing someone.” In most jurisdictions, attempted murder charges consist of two elements: First, the offender took some action towards killing another person. Second, the offender’s act was intended to kill a person.

The first test has been explained. The officer took actions towards killing another person. But the second test requires intent. The video shows the officer emerging from his vehicle with spray canister in hand and he deliberately points it towards the moving motorcyclists and begins spraying. The well-known effects of pepper spray are debilitating and extreme. Pepper spray causes intense pain, burning, and even loss of vision. An accident would have been more than the probable outcome if the officer’s attempts were successful. Indeed, an accident would have been highly likely. What other outcome other than serious injury or death did the officer hope to achieve?

Texas Need An Anti-Motorcycle Profiling Law

Motorcycle profiling is an epidemic in America and Texas is no exception. The pattern of evidence is undeniable. In addition to this incident, consider the undisclosed settlement after Chris Moore sued authorities for $1 million dollars after falsely arresting Moore and using excessive force when arresting him. And let us not forget Waco, where 177 individuals were mass arrested with no individualized probable cause, just generic cookie cutter warrants, and all given $1 million dollar punitive bonds to send a message. Representing profiling on a massive scale, the commonality of those arrested was membership in motorcycle organizations and clubs.

Legislators in the state of Texas should take note. The model law adopted unanimously in Washington State in 2011, and now on the verge of being law in Maryland, is highly effective, has no fiscal impact, and does not impact law enforcement’s ability to do their job. What it does do is substantially reduce incidents of profiling. This in turn reduces the state’s exposure to civil liability, the current gross mismanagement of public resources currently being used to profile motorcyclists, and secures the rights base of nearly a million people in the state of Texas.

See the video here:

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Maryland’s Motorcycle Profiling Bill Moving Through Legislature

By David “Double D” Devereaux

Maryland Motorcycle Profiling Bill Pictures from Rally and Hearing

A bill to address motorcycle profiling is quickly moving through the state legislature putting Maryland on the threshold of becoming the second state in America to adopt a law to condemn and prevent motorcycle profiling. SB0233 passed the Senate on a 47-0 vote on 3/3/2016 and now has been assigned to the House Judiciary Committee where 18 members, including the committee chair Delegate Vallario, are sponsors on the identical cross-filed House bill, HB0785. HB0785 received a public hearing on 3/10/2016 and was again unopposed by law enforcement. The final step in the process is nearing and passage by the entire House chamber seems likely considering that HB0785 has 62 delegate sponsors in total.

The hearing on March 10th was very well attended by the Maryland motorcycling community and many came from as far as Washington State. As everyone gathered at the Navy Memorial Stadium in Annapolis, the sense of unity in the community was undeniable. Motorcycle club members and independents were responsibly assembling in order to protect their collective rights base by participating in the democratic process.

At 1pm the House Judicial Committee hearing room began to fill up. There wasn’t a single seat available. It was standing room only with motorcyclists lining every wall. It was an impressive demonstration of grassroots manpower, impossible to ignore, magnifying the testimony of the two individuals selected by the community to testify in support of the legislation.

The Motorcycle Profiling Project, founded by David “Double D” Devereaux and Bill “Colt” Kaitz, was created for the purpose of replicating the successful process used to pass the first law addressing motorcycle profiling in Washington State. What’s happening in Maryland proves that both the policy and strategy promoted by the MPP, a movement based on grassroots manpower and unification, is highly effective at securing critical civil liberties for motorcyclists. So it was appropriate that Colt and Double D were chosen to testify and represent the community.

After the legislation was introduced by the primary sponsor Delegate Anderson, Colt began by outlining a persuasive pattern of evidence demonstrating that motorcycle profiling was common and pervasive in the state of Maryland. From mass profiling stops at the “Blessing of The Bikes” conducted under automatic weapon cover to multiple agency helmet pretext stops, the tangible evidence is irrefutable.

Double D was next, articulating the underlying Constitutional and fiscal implications of motorcycle profiling and testifying about the empirical success of this model policy first adopted in Washington State in 2011. Simply put, this law is highly effective, has zero fiscal impact and does not impact law enforcement’s ability to do their jobs.

The movement to end motorcycle profiling in America has gained momentum and the issue is becoming recognized as a legitimate policy issue in the eyes of legislators coast-to-coast. Every state that successfully passes laws condemning motorcycle profiling makes the next state’s success more likely. Washington State and Maryland utilized the exact same blueprint, from beginning to end, and that blueprint can be applied to your state greatly increasing the likelihood of success in the legislature. That, after all, is the primary reason that the MPP was initially created.

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Kansas Law Would Hide Police Misconduct

By David “Double D” Devereaux

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In response to House Substitute for Substitute Senate Bill 18, which would exempt police vehicle and body camera footage from the Kansas Open Records Act (KORA), essentially hiding police misconduct, the Kansas Confederation of Clubs (KCOC) has issued a press release opposing this provision.

The Motorcycle Profiling Project agrees with the KCOC. There are valid concerns with such an exemption. Video footage of police performing their duties can be key to accountability and public policy. A global exemption would prevent exposure of police misconduct to the media and general public. This information is absolutely critical to an informed citizenry and to establishing tangible evidence proving a pattern of abusive practices.

This Proposed Law Would Only Serve to Hide Police Misconduct

Supporters, particularly the law enforcement lobby, argues that body and vehicle camera footage should be exempt due to privacy concerns. First, there is clear precedent that an officer has no reasonable expectation of privacy, particularly while performing their duties, in the public domain. (See Manny Garcia v. Montgomery County, MD). Second, redacting any footage that is truly private in nature is already accommodated under KORA. Third, victims of police misconduct are often stripped of their privacy interests, and oftentimes other constitutional rights, through the actions of officers.

Statutorily defining all body and vehicle camera footage as a criminal investigation record in order to exempt all footage from public scrutiny is a clear abuse of the criminal investigation exemption under KORA. The criminal investigation exemption exists to protect law enforcement from revealing sources or investigative materials important to an active criminal investigation. Many discriminatory profiling incidents are the result of a pre-textual traffic stop, not an active criminal investigation. Traffic stops are the most prevalent and common interaction between police and the citizenry. Exempting footage under the criminal investigation exemption would be saying that every individual stopped for a traffic infraction is under criminal investigation. And that is simply draconian.

Dash and Body Cam is the Most Effective Means of Proving Police Misconduct

In terms of motorcycle profiling, police vehicle video footage of police misconduct was an important element proving that profiling was occurring in Washington, previous to the state’s law addressing motorcycle profiling adopted in 2011. An anecdotal story rarely has the impact of changing policy. But video validates a story making it undeniable. Public access to this footage helps inform the citizenry and also mobilizes grassroots legislative movements resulting in positive change.

Freedom of the press is a linchpin of a free and democratic society. The proliferation of video technology has been directly correlated with a massive increase in awareness related to police misconduct. This awareness, magnified by the media, can help shape and motivate public policy. Mandating body cameras for all law enforcement in Kansas can be an excellent tool advancing the interests of personal liberty and police accountability. But this is only true if body camera and vehicle footage is not exempt from KORA.

Police Video was Intended for More Transparency

This is a time when the public should be demanding more accountability, not less. Democrat Senate member Gail Finney of Wichita says, “Senate Bill 18 was originally brought up to require all officers on-duty, to wear body cameras. But, they gutted the bill. Now, this bill is about FOIA (Freedom of information) no longer applying to police video. Don’t we want this (video) stuff released to the public? And this amounts to less accountability for law enforcement to the public. With all the police-involved shooting recently across the country, we should be having more transparency, not less.” (as quoted by KSN News, April 15, 2015)

Restricting access to only those individuals that appear on vehicle and body camera footage means than the media will be denied access to much of the footage. What about cases that are settled, many times without fault assigned? Will not releasing these videos become part of settlement conditions, at least in those cases that can still be proven?

Restricting Access to Police Video Contradicts the First Amendment

The press has been so heavily protected in order to advance the freedoms of citizens in our democracy. In the words of Hugo Black, Associate Justice of the Supreme Court of the United States, “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.” (See New York Times Company v. United States, 1971).

Full Kansas Confederation of Clubs Press Release:

Visit the Kansas Confederation of Clubs Website

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Seizure Of Outlaws MC Patches Upheld by Appeals Court

By David “Double D” Devereaux

An Illinois Court of Appeals in affirmed a lower court ruling in People v. Black in Color Leather Vest with Attached Outlaws Motorcycle Club Patches, 2016 IL App (2d) 150495 (February 23, 2016), saying that 3 Outlaws Motorcycle Club patches were properly seized under the state’s Streetgang Prevention Act after defendants pled guilty to aggravated battery and mob action. This decision does not say that the government can take all Outlaws MC patches. This decision does say that motorcycle club colors may be seized from individuals wearing them during the commission of a crime.

This Decision Does Not Apply to All Outlaws MC Patches, BUT There is Always a Catch:

People v. Black in Color Leather Vest with Attached Outlaws Motorcycle Club Patches, 2016 IL App (2d) 150495 (February 23, 2016) McHenry Co. (SCHOSTOK) Affirmed.

Claimant, the Outlaws Motorcycle Club, appeals from circuit court judgment ordering that 3 black leather vests with attached Outlaws’ patches be forfeited. Time frame in Section 40 of Illinois Streetgang Terrorism Omnibus Prevention Act to initiate forfeiture proceedings begins to run when trial court enters a conviction in underlying criminal proceedings. Defendants pled guilty to aggravated battery and mob action, and agreed to forfeit their jackets. As State initiated forfeiture proceedings within 60 days of date that Defendants pled guilty, State’s action was timely. Wearing vests facilitated Defendants’ goal of intimidation, to be achieved by violent means, if necessary, to show their dominance to others. Thus, court properly found that vests and patches were derivative contraband subject to forfeiture.(ZENOFF and SPENCE, concurring.)

Although this is not the same as seizing a club’s trademark, the court says, “Wearing vests facilitated Defendants’ goal of intimidation, to be achieved by violent means, if necessary, to show their dominance to others. Thus, court properly found that vests and patches were derivative contraband subject to forfeiture.”

The Outlaws’ also contended “that as the patches on the vests belonged to the organization, not its individual members, they were not subject to forfeiture.” But the court disagreed and concluded, “Illinois law provides that property that is put to an illegal use can be confiscated without regard to the owner’s culpability.”

The court also conceded that “testimony clearly demonstrated that the defendants’ wearing their vests did not cause the violence.” However, the court argued expert “testimony showed that wearing the vests facilitated the violence. As this is all the statute requires, the trial court did not err in granting the State’s complaint for forfeiture.”

What Does This Mean for the Outlaws MC and All Patch-Holders?

The implications of the court’s conclusions are concerning. Merely wearing a patch on your vest can be considered intimidation through the threat of violence. What does this mean for concepts like self defense and deadly force?

  • Does this decision mean that someone can claim self defense for pulling out a gun and killing someone wearing a MC patch during a verbal altercation and then claim self defense saying they were intimidated and feared violence?
  • Does this decision justify felony-style stops of individuals wearing MC patches on their vests at gunpoint for simple traffic infractions because the officers are intimidated and fear violence?

Seizure of patches is becoming a more frequent element of prosecuting motorcycle clubs and their members. With the number of instances growing, there currently seems to be a legal bright line emerging concerning patch seizures. Individuals that have themselves been found guilty of committing a serious crime while wearing club insignia may have that property permanently seized.

Although authorities are attempting to move the bright line so they can seize an entire club’s name and trademark from all members, and they are spending millions of dollars attempting to achieve this goal, currently individuals that have not been found guilty of a serious crime are not subject to having property with club insignia seized.

But always remember that everything can easily change with the next court decision.

The entire People v. Black Leather Vest decision can be found here:

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/2ndDistrict/2150495.pdf

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