Police Officer Michael T. Slager shot and killed Walter Scott in the back as he ran away. The video that surfaced showing the killing reveals how unnecessary it was. The mayor of North Charleston has called for police to wear body cameras. People reading this in Sonoma County, I’m sure, hear echoes of the shooting of Andrew Lopez by Deputy Erick Gelhaus. Deputy Gelhaus, unlike Michael Slager, was not charged with murder or any other crime. However, the question that has divided the community here is, was the shooting necessary? In facts well known to those in the community, Deputy Gelhaus states that he pulled up behind Andy, who was holding a replica AK-47 pellet gun. A witness stated that he heard Deputy Gelhaus tell Andy to drop the weapon twice. Deputy Gelhaus stated he fired his weapon when Andy turned and the barrel appeared to rise toward him. There was no video of the encounter. In North Charleston, prior to the emergence of a video showing the incident, Officer Slager stated in his report of the shooting that he feared for his life after Walter Scott took his TAZER from him during the arrest. Anyone reading the report could imagine Walter Scott raising a TAZER towards Officer Slager, forcing Officer Slager to shoot him. This depiction of events would have cleared the officer of any wrongdoing, if the incident hadn’t been captured by a citizen walking by. The video clearly shows an unarmed Walter Scott running from the officer as he was gunned down. As citizens in California, we have a right to video the police as long as long as the person recording is standing far enough from the officer that the officer does not feel threatened and as long as the person recording is not a physical barrier to the officer in the discharge of his or her duties. If you are recording an officer, and the officer asks what you are doing, you can tell them you are exercising your First Amendment right to film them. Here is a great article the right to record police in California. Like North Charleston, the Sonoma County Sheriff’s department will soon outfit all of its officers with body cams. This raises privacy right issues as to both when police can lawfully record private citizens and who has access to these recordings. As long as there are restrictions on when police can record interactions with private citizens in their homes, I am for police using body cams. Here’s why: use of force by police declined by 60% during the first year of their use by officers in Rialto, CA. Would Deputy Gelhaus have shot Andy Lopez if he had been wearing a body camera? Would Michael Slager have shot Walter Scott. I don’t know. But I can be confident that Michael Slager’s actions would have been different if he had known his actions would be recorded and played back for all of humanity to see.
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As a criminal defense attorney I represent a lot of clients who are at risk of evidence being presented against them in a criminal trial that is the result of a search by officers of either their person, vehicle, house or cell phone. Usually, the police officer states that the person gave them consent to search. Many people don't know that they have a right to refuse an officer's request to search. However, they fear that an officer will arrest them or worse if they don't comply with the officer's requests. Here are some practical tips on how to interact with police officers and to mitigate your chances of being found guilty of a crime if you are searched.
First: Always be courteous to a police officer. Police officers have a hard job. They work long hours and they are always at risk of being harmed in the line of duty. You may feel that it is a hassle that the officer is pulling you over. It may interfere with your day or prevent you from getting where you want to go on time, but not being courteous will only extend the stop. Second: Being courteous doesn't mean give up your rights. No matter what happens, do not consent to a search and do not answer any question the officer is asking in terms of his or her investigation. An officer can ask you a question such as, "How are you doing tonight?" or "Can I have your license and registration please?" or can chit chat with you about the weather. Go ahead and say, "Fine," or "I can't wait for more rain," and make sure you give them your license and registration. However, once an officer asks you a question such as, "Do you know how fast you were driving," or " How much did you have to drink tonight?" they have stopped chit-chatting and have begun an investigation. Under your Fifth Amendment right to not incriminate yourself, you don't have to answer those questions. You can say something to the effect of, "I invoke my fifth amendment right to remain silent; and I'd like to talk to my lawyer." This may make the police officer angry, but he or she is angry because you're making their job harder; don't take it personally. They can't arrest you simply because you refuse to talk to them. Similarly, they will ask you if it's okay if they search you. Simply say to them that they cannot and that you refuse to give them consent to search. This does not give them cause to search you. What it does is protect you later in court if the officer searched you and did not have probable cause to do so. Under the Fourth Amendment to the US Constitution, you have a right to be free from unreasonable search and seizure. This means that officers can't search you without a warrant or unless a warrantless exception exists. If you give them consent to search you, they don't need a warrant. They will most likely be angry, because you're making their job harder. And they will search you anyway. If they do try to search your wallet, purse, jeans, vehicle, home, etc... do not stop them or resist. Simply iterate that you do not consent to the search. Anything they find as the result of an illegal search can't be used against you in a trial. |
AuthorJason Tauches is an attorney and writer who lives in Massachusetts. Archives
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