Archive for the ‘Police Litigation’ Category

Racial Profiling: Who’s Stereotyping Whom?

Wednesday, July 29th, 2009

(Printed in The Trenton Times Op-Ed Section, July 27, 2009)

As a former big-city police officer, a former police misconduct investigator, a bi-racial African-American, and as an attorney who defends both police officers and the criminally accused,  I have a unique perspective on the touchy subject of  “Racial Profiling,” an issue which has recently been debated in the Times editorial pages by Ewing Attorney Donald Roscoe Brown and Lawrence Township Police Chief Daniel Posluzny.

Since any public discussion of racial profiling usually ends in a predictable stalemate, with familiar arguments and little new insight, I will make an effort to advance this discussion.  Like Mr. Brown, I feel I would “be doing a gross disservice by not writing of my personal experience.”

For three years in the mid 1990s, I served as a police officer in a high-crime neighborhood in Boston.  I was a “working cop,” so I stopped many cars and people for many different reasons.  Some people got arrested, but most did not.  While sometimes race was a factor in my decisions to stop someone, it was never the only factor.

I worked in a predominately black neighborhood with known areas of illegal drug dealing.  If I saw a young white male drive up to a young man late at night on a known drug corner, stop momentarily, and make an exchange, I might stop the driver.  Race would be a factor in my decision, but I think justifiably so.  Other genetic characteristics, such as age and gender, also played a role in my decisions.

Although race played no role in most of my decisions, I was frequently accused of racial profiling.  Of course I knew such accusations were false, but I also knew that I could never really prove my true intentions to the satisfaction of my accusers.  As an eager and idealistic rookie, I would try to explain myself, and I made it a point to be excessively polite.  But nothing worked.

Eventually, I realized that it wasn’t about me at all.  Ironically, I was the one being stereotyped.  It didn’t matter that I am not a racist.  Certain people with pre-formed beliefs about police officers were going to accuse me of racial profiling no matter what the facts were.

The essence of the job of a police officer is to make judgments – dozens on any given day.  Those judgments are informed by the circumstances at hand, common sense, academy and field training, but mostly experience.  For cops on the beat, it is a challenge to determine the truth of any given situation.  Sometimes, police officers draw mistaken conclusions from their observations.  Since no human being is perfect – and yes, cops are human beings – mistakes and misperceptions are inevitable.

One response to this inevitability is to grant police officers the benefit of the doubt with the understanding that such mistakes are minimized through training, supervision, judicial scrutiny, and experience.  Police officers, prosecutors, many judges, and a large portion of the general public tend to give police the benefit of the doubt and presume that they act in good faith, unless credible evidence shows otherwise.

A contrary response to the inevitability of police mistakes is to use them to forward a personal or political agenda.  Espoused by Al Sharpton, the ACLU, the news media, and some people who have been stopped by police, this agenda-based approach posits police mistakes, combined with historical inequities, as conclusive evidence of racial profiling.  Conveniently, the actual existence of racial profiling in any given case can rarely be conclusively proved or disproved because the evidence lies solely in a police officer’s mind.  The perfect circularity of this argument makes it an effective fund-raising tool, political rallying cry, and a profitable source of headlines.  But unfortunately, the truth becomes secondary.

Which brings me to Mr. Brown.  In his opinion article, “Driving While Black in Lawrence Township,”  (June 18) Mr. Brown accuses a Lawrence Police Officer of pulling him over because he is black.  He was wearing a suit, and was otherwise driving safely.  The officer told him he thought he was not wearing his seatbelt.  When he realized the seat belt was engaged, he sent Mr. Brown on his way.  By Mr. Brown’s own description, the officer was “very respectful and polite,” and the stop lasted about 30 seconds.  In his July 10 response article. “Lawrence Township Policing Is Equitable and Fair,” Chief Posluzny informs us that the stop occurred during the nationwide “Click it or Ticket” campaign in which police all over the country were instructed to ticket drivers not wearing seat belts.

Mr. Brown concluded that “but for my blackness, I probably would not have been stopped.”  The irony is that Mr. Brown drew conclusions based on his stereotypes of police officers.  Without any factual basis, Mr. Brown assumes that “perhaps [the officer] wasn’t aware of some subconscious views he might possess regarding the unwarranted belief that blacks, in general, are predisposed to committing crimes and unlawfully operating motor vehicles.”  It’s disappointing that an intelligent and accomplished person like Mr. Brown would make such a serious accusation based on nothing more than his own stereotype that white police officers harbor “subconscious” racist views that influence their professional decisions.  But, I wonder whose subconscious is influencing whom.

It would be foolish for me to argue that there are no racist cops.  But, it is equally foolish to accuse a police officer of one of the most serious offenses in the profession based on nothing more than a stereotype.

Trooper Higbee’s Trial for Vehicular Homicide Is Set to Begin in Cape May

Monday, April 20th, 2009

All eyes in the New Jersey law enforcement community will be riveted on the upcoming trial of Trooper Robert Higbee.  On September 27, 2006, Trooper Higbee’s cruiser crashed into a mini-van, killing two young sisters, Christina and Jacqueline Becker.  Though this event was clearly a horrible tragedy, questions are always raised in the law enforcement community about the fairness of criminally prosecuting a police officer for a fatal traffic accident that occurred while the officer was on duty, and clearly acting in good faith.   While the Higbee trial is technically about the events on the night of September 26, 2006, the underlying policy question remains: should our communities seek severe criminal punishment for police officers who are involved in traffic accidents, when there is no indication that the officer purposely did anything wrong?

The facts will become more clear as the trial progresses, but The Press of Atlantic City has reported the following scenario.  Trooper Higbee claims that he was trying to catch up with a speeder aroung 10:00 pm on the night in question.  He had not yet activated his lights and siren when he passed through a stop sign at approximately 60 mph, colliding with the mini-van on the front driver’s side.  According to the defense, the New Jersey Police Vehicular Pursuit policy states, in part, that when a police officer is attempting to stop a vehicle, the officer “shall, when possible and without creating a threat to public safety, close the distance between the two vehicles prior to activating emergency lights and an audible device.” 

There can be little argument that the Becker family is due civil damages under a civil negligence standard.  Indeed, the State Police has already resolved the civil case with a $2 million settlement.  Of course, money cannot bring back the two girls, but such a settlement would not be unusual if the person who struck the mini-van was not a police officer, and alcohol was not involved.

The question is whether Trooper Higbee committed a criminal act by “recklessly” passing through the stop sign.  During this trial, there will be testimony from eye-witnesses, some of whom may have actually seen the collision, whereas others will have only seen events leading up to and subsequent to the crash.  There will also be experts who will describe the speed and direction of each vehicle and will try to re-create the circumstances of the crash.  There will also be experts discussing police pursuit policies and whether or not Trooper Higbee abided by those polices.  But at the end of the day, after all the facts of the case are in, the jury’s final decision will turn on its understanding of the term “reckless” and how it applies that understanding to the facts.  In other words, what was the officer’s state of mind when the accident occurred? 

The notion of a culpable state of mind can be an intellectual quagmire, but can be summed up as follows.  There are four states of mind: purposeful, knowing, reckless, and negligent.  “Purposeful” conduct is something done consciously and purposely, like first-degree premeditated murder.  “Knowing” conduct is similar to purposeful conduct, except that the actor need not have specifically intended a particular result.  Recklessness and negligence are close cousins.  Whereas negligence means that the actor “knew or should have known” that his conduct carried certain risks or would likely have a certain result, recklessness requires “a conscious disregard” for a particular risk and that such a disregard was a “gross deviation” from what a “reasonable” person would have done under the circumstances. 

Determining the difference between, say, “purposeful” conduct and “reckless” conduct is usually quite straightforward.  But it gets tricky when jurors attempt to differentiate “reckless” and “negligent” conduct.  With respect to vehicular homicide, a defendant must be found innocent if his conduct was negligent, and guilty if it was reckless. 

According to the model jury instruction for reckless vehicular homicide, “A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct.  The risk must be of such a nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to him/her, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant’s situation.” 

There is no model negligent homicide jury instruction.  But, we can look at the jury instruction for another statute to demonstrate how fine the line is between recklessness and negligence.  The negligence component of the jury instruction for the crime of “Reckless or Negligent Infliction of Injury to Innocent Persons” reads:

    A person is negligent in injuring or creating a risk of injury to an innocent person when (he/she) should be aware of a substantial and unjustifiable risk that the injury or risk of injury will result from (his/her) conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of (his/her) conduct and the circumstances knownto (him/her), involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. In other words, if it were very likely that the defendant’s use of force against (Victim 1) would injure or create a risk of injury to an innocent person, and given the circumstances, the defendant should have known that, but (he/she) went ahead and used force anyway, where a reasonable person would not have used force, then (he\she) acted negligently.

The defense will likely focus on two key aspects of these instructions.  First, it will argue that, at worst, Trooper Higbee’s passing through the stop sign constituted a negligent act.  The defense may even request an instruction on negligence, especially if the jury asks the judge to clarify the meaning of recklessness.  In any event, under the facts as we now know them, it would seem difficult for the defense to credibly argue that Trooper Higbee bore absolutely no fault.  After all, two young girls are dead, he was traveling over 60 mph without using his emergency lights and siren and without stopping at the stop sign.   Therefore, the defense is likely to focus on portraying Trooper Higbee’s conduct as “mere” negligence.

The second key aspect of the defense will relate to the second part of the recklessness instruction which states that a person with a reckless state of mind must have CONSCIOUSLY disregarded a risk that was so obviously dangerous that “disregard of the risk involves a GROSS DEVIATION from the standard of conduct that a reasonable person would observe in the defendant’s situation.” 

The defense will correctly argue to the jury that “recklessness” is quite a high standard under these circumstances.  Even if Trooper Higbee’s passing through the stop sign at 60 mph was a deviation from standard policy, that alone is not enough for a conviction, even if it is enough for purposes of civil liability.  Instead, Trooper Higbee’s conduct must have been a “gross” deviation from such standards. 

This is the reason why the NJ Police Vehicular Pursuit Policy is so central to this case.  Trooper Higbee will argue that he had been “trained” to delay the use of emergency lights and siren until he caught up to the alleged speeder.  Therefore, not using his emergency equipment was not a gross deviation from applicable standards.  

However, the prosecution will argue that, even if this policy was in place and Trooper Higbee knew about the policy, he still was obligated to not “create a threat to public safety” by doing so.  The prosecution will argue and present expert evidence to the effect that, under ANY circumstances, a police officer should not pass through a stop sign at 60 mph, especially not at night with no lights or sirens, and that doing so is a “gross deviation” from reasonable standards.  Unfortunately for Trooper Higbee, modern police training typically requires officers to slow down at all intersections, even when lights and siren are engaged. 

In the end, the members of the jury will apply common sense and their own “gut feelings” in applying the law to the facts.  This will undoubtedly be an emotional and vigorously contested trial which we will continue to follow as it proceeds.   

NJ Courts’ Application of Progressive Discipline: Neither Progressive, Nor Disciplined

Monday, April 6th, 2009

The concept of progressive discipline is easy to understand:  when facing discipline for misconduct, a police officer’s past performance record should be considered in determining a fair and appropriate punishment.  Such discipline is “progressive” because the penalties for misconduct should “progressively” increase each time the officer is convicted of misconduct.  On the other hand, progressive discipline in its purest form would preclude severe punishment for a first offense, if that officer’s prior record was spotless. 

 In practice, the notion of progressive discipline is usually discussed when a police officer is fired or severely punished for a single instance of misconduct despite an exemplary prior record of performance.  Courts are more likely to discuss progressive discipline principles when justifying a reduction of punishmnet due to a stellar performance record.  Although courts are not required to adhere strictly to principles of progressive discipline when examining disciplinary actions, it is critical for police officers with good prior disciplinary records to vigorously and persuasively argue for leniency under progressive discipline principles.  It is equally important for officers to fight any disciplinary charge, even for “minor” infractions, because a spotless record will be extremely valuable if something serious happens in the future. 

In a recent unpublished case, Ackermann v. Borough of Glen Rock and Glen Rock Police Department, a sergeant-detective was charged by his Chief with sexually harassing a female colleague.  The Chief recommended a 3-day suspension.  The officer challenged this suspension, and a hearing was held.  The hearing officer concluded that the officer had violated numerous rules and recommended a 10-day suspension without pay, as well as attendance at sensitivity training.  The hearing officer’s conclusions were accepted by the Mayor and Council, except for the degree of discipline.  Substantially increasing the officer’s punishment, the Council suspended the officer for 60 days, demoted him from detective-sergeant to police officer, and required him to attend sensitivity training. 

In response, the officer filed a complaint in lieu of prerogative writs in Superior Court, resulting in a trial de novo.  After hearing the evidence, the trial court found that the demotion was excessive, noting that the officer had not been the subject of any prior disciplinary procedures.  Thus, the trial court found, “to order [the officer] demoted would not be in accordance with the principles of progressive discipline.” 

The appellate court upheld the trial court’s rejection of the demotion on the basis of progressive discipline, stating, “[i]t is entirely appropriate to discipline an employee with an otherwise blameless record in a manner different than an employee whose record is studded with disciplinary charges.”  In this case, the officer benefitted from the court’s application of progressive discipline principles.

However, in a 2007 case called In Re Carter, the New Jersey Supreme Court upheld the removal of an officer for sleeping on duty, even though the Appellate Division had previously held that removal was too severe under progressive discipline principles.  The New Jersey Supreme Court noted that “we have not regarded the theory of progressive discipline as a fixed and immutable rule to be followed without question.”  According to the Court, “some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record.” 

 Sleeping on duty, according to the Court, was “so serious” that termination was appropriate.  Unfortunately, the Court left for another day the answer to the most critical question: what other kinds of infractions are so serious to cause an otherwise perfectly behaved police officer to lose his job?  The answer to that question presumably lies somewhere in the thousands of pages of case law on the subject; but, I can tell you, there are no definite answers.

The Supreme Court’s analysis in In Re Carter, as in many other progressive discipline cases, is unsatisfying because it says, essentially, that while certain infractions can result in extreme punishment, only the Court knows those infractions when it sees them.  Because progressive discipline is not a “fixed and immutable rule,” and the jurisprudence surrounding the concept is typically limited to the facts of a particular case, Court precedent offers precious little guidance to police officers in the field who are left to wonder what conduct could get them fired, even if they have a perfect record. 

There are lessons to be learned, however.  First, do not accept any adverse employment actions, like suspensions or reprimands, lying down.  You should fight all such blemishes on your record because you never know if you will be accused of something more serious later.  The cleaner your file, the better your argument for leniency under progressive discipline principles will be.  Second, if you face disciplinary charges, and your prior record is relatively clean, make sure your attorney has carefully analyzed the applicable case law on progressive discipline so that the most potent arguments can be made on your behalf. 

Contact me by telephone or email if you have any questions about progressive discipline or any other issue relating to police-defense.  

Peter B. Paris, Esq. 609-452-8411, ext. 117 or

Ryan Moats Police Encounter

Tuesday, March 31st, 2009

When Ryan Moats, an NFL football player, raced to the hospital with his wife to visit his mother-in-law before she died, he ran red lights, ran stop signs, and failed to stop for a police officer trying to pull him over.   To read the blogging and reporting on this incident, one might think the police officer beat him within an inch of his life.  Nothing of the sort happened.  Before you jump on the all too familiar anti-police bandwagon, watch the video and consider the following points.  

(Here is the two part video.  The first part is most important and about half of th second.)

We can certainly all agree that Mr. Moats’ vehicle was driving fast and did not stop for the police officer, whose sirens were visible and audible to the driver.  There is no way for the officer to know why the driver refused to stop, so the officer must address the situation at that moment as if the driver and passengers are a potential safety threat.  The fact that the driver pulled into the hospital would not reduce the officer’s concern.  With the benefit of hindsight and the glare of after-the-fact scrutiny under which police are always judged, Mr. Moats’ conduct was consistent with a person whose family member is dying.  However, there are an infinite number of less benign scenarios.  For example, shooting victims are often brought to the hospital by their comrades who may or may not still be armed.  Moreover, there have been situations in which gang members or family members attack rivals in hospital emergency rooms.  In any event, the officer’s demeanor when the car stopped and people began to stream out of the car was certainly not out of line.  

When Ryan Moats got out of the car, he and other passengers immediately began screaming at the officer, who was alone.  While we can all sympathize with Mr. Moats’ concern for the health of his mother-in-law, take one minute to look at the situation from the officer’s perspective.  He has just followed a vehicle that refused to stop.  Red flag.  People emerge from the vehicle in an emotional state.  Red flag.  The occupants and driver begin yelling at him as he tried to understand and gain control of the situation.  Red flag.   And, the officer was outnumbered and unable to know whether the occupants were armed or how many other people might be in the vehicle.  In sum, there was no way that the officer could simply let everyone in the car do what they please in this situation — at least not until people calmed down and explained what was going on.

The situation would have been far different if Mr. Moats had behaved differently.  First, he could have pulled over when the officer turned on the lights and siren.  When the officer approached his car, he could have calmly explained the situation and would probably have gotten a police escort to the hospital.  Even if he didn’t pull over, he could have obeyed the officer’s initial commands at the hospital and given the officer a few moments to assess and understand what was going on.  Even if he had exited the vehicle in a calm manner and explained the situation, I’m sure the officer would have proceeded differently. 

The officer in this case has reportedly apologized, but I do not believe he has anything to apologize for, except to placate the media and his chief, who has already determined his guilt before a hearing.  I am sure that his apology has more to do with Mr. Moats being an NFL player than the officer feeling truly remorseful.  What was the officer supposed to do?  Simply let the driver and his passengers walk away because they said their mother was dying?  That’s simply unrealistic.

People have to understand that, from a police officer’s perspective, the moment of contact with a motorist is a dangerous situation, especially a motorist who has refused to stop, and especially when the officer is alone.  Faced with emotional people who are ignoring lawful commands, I would expect that officer to use a stern tone and try to freeze the situation until all the facts can be discerned.  That is what this officer did.  The encounter did not take an inordinate amount of time, and the officer was not rude or verbally forceful until the occupants of the vehicle demonstrated no intention of obeying his lawful commands.  On Law and Order or CSI, perhaps the super-police could read the minds of the occupants.  But in real life, that is too high a standard.

I have read articles and blog entries about this situation in which people accuse the officer of murder and call for the officer’s resignation.  Each position is utterly ludicrous.  Ryan Moats’ behavior was the proximate cause of his being pulled over and detained for several minutes as the officer awaited back up, figured out what was going on, and got control of a potentially volatile situation.  It is certainly unfortunate that Mr. Moats was unable to say goodbye to his mother-in-law, but if he had acted differently, he would have had that opportunity.

The main lesson to be learned from this situation must be learned over and over again:  before condemning police officers for not living up to television-standards, understand the facts and understand the nature of the job.  Of course, some police officers make mistakes and even purposefully cross the line of proper conduct.  The Ryan Moats incident, however, was not such a case.

(Maselli Warren’s Peter B. Paris is a former police officer and represents police officers accused of misconduct.)