Idaho Criminal Defense Blog : Boise Idaho Criminal Lawyer & Attorney : Chuck Peterson Law Firm : Civil Rights, Trial, Felonies, Assaut, DUI : Boise, Idaho Falls, Pocatello, Idaho

The Sixth Amendment to the Constitution provides you with many of your most important tools at trial. It is intended to guarantee a fair trial to every person accused of a crime. Whether you are charged with DUI, a drug crime, a sex offense, fraud, manslaughter or murder, the Sixth Amendment helps us to get you a fair trial.

If you have been charged with a crime, we will be happy to meet with you to explain your Sixth Amendment rights and how they can help us defend you in your particular criminal defense matter.

So what does the Sixth Amendment provide?  It provides you with these essential rights at trial:

You have the right to be tried by an impartial jury.
You must be informed of the nature of the charges against you.
You have the right to confront the witnesses against you.
You have the right to a lawyer.

These basic rights are just the start - for example you don't want just any lawyer - you want an experienced trial lawyer.

You don't really want just any jury that might be impartial - you want a lawyer who can use his or her experience to choose jurors most likely to listen to your story, and jurors who will want to help you.

So the Sixth Amendment gives us a framework to defend you, but the key to your defense - your trial and your innocence - is the lawyer you choose.

Before you hire a lawyer who says he or she has the experience you need to face a prosecution - STOP.  Ask that lawyer the five questions we have here.  Then give us a call. For over thirty years we have been providing the best defense in criminal cases in state and federal courts.

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When a police officer goes too far – and uses excessive force – he can be held accountable for the harm he causes. Police officers have a tough job. We rely on them to keep us safe, and most of the time an officer uses force it is justified. Still, if you have been harmed by the actions of a police officer, you may have a case. The officer and his or her agency may be responsible for your damages.

Holding a law enforcement officer accountable is not an easy assignment. The evidence must make it clear that the force used was unreasonable or unnecessary. For example, if an officer used a baton or stun gun on someone who was simply arguing whether he or she had been speeding, a case might be made that the officer had used excessive force.

Here are three things to keep in mind about your potential excessive force claim:

First, a law enforcement officer may use force that is necessary under the circumstances presented. So not every use of force will result in a case.
Second, juries want to believe that law enforcement officers “did the right thing” when confronted with a tough situation. This means that you will likely start at a disadvantage when it comes to credibility, so your choice of a lawyer to handle the case is critical to your possible recovery.
Finally, there are procedural hurdles designed or intended to keep you out of court and to limit your recovery. Do not wait to contact an attorney and review your rights as the passage of time may destroy any opportunity you have to recover.

To safeguard your rights, your lawyers need to build your case expecting to go to trial. This means that we will help you safeguard evidence, document your medical treatment, account for lost wages and employment, and identify and interview witnesses.

If you or a family member have been injured or killed as the result of a confrontation with the police, call us for a free consultation.

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Have you noticed how many attorney websites are all about the lawyer and pay no attention to the information that people charged with criminal matters are looking for? Most lawyer websites scream: "Hire me! Do it now! You might go to prison if you don't act within the next hour! Call me now!"

I hate those websites! Instead of providing information, the lawyers using the sites try to scare you into hiring them based on emotion, not information. The truth is you might not even need an attorney to handle your case. So before you sign that retainer agreement, get informed!

This blog is different. There is a ton of free information here for you to review based on your needs. Have a DUI case? Check out the DUI section of the Topics. Have a question about how to value a personal injury or wrongful death case? Look at the Civil Practice section.

The Topics section can lead you to information that you can use to help you become informed on whatever area of law you are interested in. Well, not every area - this blog is really about criminal defense, civil rights and civil trials. With over thirty years of experience in those areas, my goal is to help you become better informed!

And what if the issue you have is not listed in the Topics? Send me a question and I will get back to you. We promise to get you information - then you can make a great decision about whether you need a lawyer and which lawyer you want to hire.

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 Let's just say that your are leaving the parking lot of your favorite convenience store.  Slurppy in one hand, cell phone in the other. An unmarked car stands by and hidden from view an officer watches your moves. You get into your car and back out. The unmarked runs interference and a couple of squad cars appear.  

"Do you know why I stopped you," the officer asks.

"No...."

"You've got a broken tail light. Please step out of the car."

You do and the officer asks if you have anything in the car that might be a "problem."  You read that as drugs and remember that there is a little bit of pot hidden in a glove box.  Better to take the hit then extend the contact you reason, so you admit to the pot and the cop retrieves the marijuana and your cell phone.  He taps the text message icon and sees "1lb 4 1000" flash across the screen. Later the cops find that there is a pound of marijuana hidden in the spare tire in your trunk.  Can the text message be used as evidence at trial? The officer says the text translates to "one pound for $1000."

The California Supreme Court says it can in a case (People v. Diaz)  decided in January. The text on the phone read "6 4 80" referring to six ecstasy pills for $80.  Ohio has come to a different conclusion in Ohio v. Smith, decided in 2009. There the State's highest Court held that unless the officer's safety is at stake or there is an emergency, the Fourth Amendment prohibits a warrantless search of a cell phone seized during a lawful arrest.  

The general rule is that officers may search a person incident to arrest. Assuming they get the cell phone lawfully, they may be required to wait for a warrant (Ohio) or may be able to search immediately (California).  The matter is likely headed to the Supreme Court for consideration.

Two things seem clear to me: first, the search of a cell phone has nothing to do with the original exception to the warrant requirement for the search incident to arrest. Officer safety is not the issue when the police are going through your phone. Second, there is so much data on our "smart" phones that a search will really get to potential "private" information.  

What would our Idaho Supreme Court rule? Hard to tell but increasingly it seems that they are writing decisions that more strictly follow the constitutional requirements for search and seizure. 

And if you are a lawyer - think about all the stuff we have on our phones that comes from clients. Email, photos, text messages and documents relating to our cases are all there for the taking. Time to get careful with the way we store information.

Have a phone story? Send me your comment.

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 This week I had to write that "sorry, but I cannot take your civil rights case" letter to a man who had been badly assaulted in prison.  In Idaho over the past year there have been a number of lawsuits filed by prisoners and lawyers on their behalf for damages they received when the prison failed to protect them from other inmates.  Many of the cases have value - and for lawyers representing folks in this setting, value is a critical part of decision-making process.  How do we place a "value" - money value - on someone's case?

First, I look at the circumstances that lead to the injury. In Idaho a person may recover for specific economic and medical losses as well as "general damages." The general damages component refers to the sum of money that will compensate you for your pain and suffering - that is in addition to out of pocket lost earnings or medical expenses. A person in prison will likely have very limited economic loss when compared to a non-prisoner plaintiff in a personal injury or wrongful death lawsuit. They may have the loss of future earnings, but those prison jobs do not pay much while an inmate is serving time. The same is usually true of the medical damages. Medical treatment may have been provided by the State as part of its duties to an inmate.  

General damages are limited by Idaho law. The number today is approximately $270,000 (adjusted for inflation).  Our legislators apparently do not trust Idaho juries enough to let them decide how much money to award in a damages case. They have artificially set a cap or limit, in the wild eyed hope that our insurance premiums would go down.  Check out your last three years insurance cost - has it gone down? I don't think so!  

Next, I assess the likelihood that the case can be settled without a trial. Most cases do not get tried, but they often settle on the courthouse steps. That means that the lawyer has to spend the time to get ready and pay the costs of hiring expert witnesses, conducting discovery and investigating the clients' claims. 

Finally, I get real. You need to do the same thing with your case.  

Ask yourself what you would award if you were a juror. A case I recently rejected contained this assessment by the person who wanted me to be his lawyer:

"There is a similar case filed in Boise in which there are 30 plaintiffs who have sued for $120 million, so my share should be $4 million."

Probably not. It is a mistake to assume that your case will have a particular value based on what others have received, or more importantly - what others have sued for. That $120 million number in my example is meaningless.  If each of the 30 plaintiffs received the maximum $270,000 for general damages, the total value of the 30 cases excluding special damages (lost earnings, medical costs, future lost earnings and medical costs) would be $8.1 million. And that assumes everyone's case gets the same amount, which is also not likely. 

The real value of your case is seldom as high as you want to believe. Thirty years of doing this has taught me that it is usually less than I expect it to be. 

Trying to evaluate what your damages are in a potential civil case? Whether the case is for personal injury, wrongful death, civil rights violations or fraud, your damages are very individual and the value of the case will likely be difficult to predict.  You need to take into consideration a lot of individual factors - including where the case will be tried (Boise or Bonners Ferry) and who will be trying it. 

Don't get swayed by TV lawyers who proudly claim that they got "$300,000 for John's auto accident injuries."  Your case may be nothing like "John's" and that lawyer may have taken $300,000 for a $3,000,000 case.  

Most importantly - shop around. You have time. Don't be afraid to make more than "one call," and do not hesitate to talk to many lawyers about the facts of your case.  Finding the right lawyer is too important to do otherwise.

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 Can parents sue a school district for wrongful death, when their theory of liability is that the district owed their child a duty to supervise her or her killers? The answer here - no.  

In Stoddart v. Pocatello School District, the Idaho Supreme Court (Justice Horton writing the decision) affirms the district court's decision and dismisses the school district from the case, leaving no likely ground for recovery by Cassie Jo Stoddart's family. Still, the decision is predictable. Generally speaking, a case founded on negligence requires proof of a duty owed to the victims; a breach of that duty; proximate cause (the breach must have been a substantial step in bringing about the harm), and resulting damages. The Court acknowledged a duty on the part of the district to take reasonable steps to protect their students from foreseeable harms faced by their students, but found that the plaintiffs had failed to prove that the harm here was foreseeable.  There is much more here and the decision is very instructive on the law in Idaho (and most other states) as it relates to the duty to protect, so take a quick. There is also mention of an "alternate" basis for the decision - that the duty to protect students that would be imposed on school districts would be enormous were they to rule otherwise.  Justice Horton points out that the decision does not change the duty to protect students when there is specific information establishing a child may be a target for violence. Here, there was not sufficient evidence based on an earlier investigation by the school or facts at the time of the murder. 

The duty to protect arises when there is notice to the district that violence may be directed at a particular child. Foreseeability is again the key - if you can't foresee that there is a real threat, the duty to protect does not arise.  

None of this will help Cassie Jo's parents deal with their tragic loss, and the decision is in no way a reflection on the part of the Court that it views their loss as any less tragic. Still - crime victims cannot always find relief in the civil court processes. If you are a victim of a crime, consult a lawyer about the facts of your situation. 

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 I am working on a case in which a private citizen reported to the police that his neighbor had been drinking, got in an argument and left in his car. The tipster reported that the neighbor was drunk and driving. He gave the likely direction of travel and type of car. Cops notified by dispatch saw a car that matched the potential offender's vehicle and stopped it to investigate. Sure enough they smelled the odor of alcohol, recognized the glassy eyed stare of too many beers and concluded that the occupant should submit to field sobriety tests. End result - DUI. 

So is the BAC that was derived from the failed field sobriety tests and the officer's observations admissible at trial? There was no warrant for arrest or to search. They only had an anonymous tip by a neighbor that the occupant had been drinking and was driving to town.

Survey says: probably.

The Fourth Amendment to the US Constitution protects against unreasonable searches and seizures. When you challenge the validity of a vehicle stop or other seizure the burden is on the State to prove the stop was justified. The stop is either reasonable or not depending on the totality of the circumstances. The police must have had a particularized and objective basis for suspecting that the person they stopped was engaged in a crime - like drunk driving. That suspicion may be supplied by an informant's tip or a citizens' report, and it all comes down to the content provided and the reliability of the informant.

In Idaho there is a case (State v. Etherington) that says an anonymous tip alone, without sufficient indicia of knowledge and veracity is insufficient to justify a stop. However, a later case (Wilson v IDOT) held that the opinion of the tipster that the driver was drunk, based on her observations, was enough to validate the stop.

So be careful out there. Do not drink and drive. Call a cab or a friend or use the feet attached to your legs. If you drive and are drunk and get reported and arrested you will spend a lot of time and money trying to get your driving privileges back.

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 The Idaho Supreme Court decided an interesting case in which the Boy Scouts of America sought to dismiss a case brought by sex abuse victims who had not proceeded with their cases until they were adults. Generally, Idaho civil law contains a statute of limitations that ends liability for civil cases after some number of years. For example - if you are in an automobile accident and have a claim for negligence, the law says that you must sue within two years of the date of the injury or your claim goes away, forever. The injury may remain but your ability to collect from the persons who hurt you is eliminated. So you always have to make sure that you get that case filed within the statute of limitations.

In Morgan v. Boy Scouts of America, district court judge Michael McLaughlin ruled that the statute of limitations did not bar a civil action brought by three former Boy Scouts for sexual abuse they contend occurred in 1979 and 1982. Plaintiffs filed their cases in 2007, relying on title 6, chapter 17 of the Idaho Code, which provides a statutory cause of action for sex abuse victims. In July of 2007 an amendment to the law permitted the filing of a case “within five (5) years of the time the child discovers or reasonably should have discovered the act, abuse or exploitation and its causal relationship to an injury or condition suffered by the child, which ever occurs later.” I.C. § 6-1704. Based on the "discovery" part of the statute, child sex abuse victims in Idaho have a far greater time in which to bring their case for damages they incurred as a result of the abuse. 

Rather than just changing the statute of limitations, the Idaho Supreme Court recognized that the provisions of § 6-1701 and its amendments was the creation of a new cause of action, with greater rights than provided at common law. The legislature has created a civil cause of action for crime victims, but that statute is not applied retroactively.

"Because the scope of liability imposed under Idaho Code title 6, chapter 17 substantially differs from that available under the common law, the statutory scheme cannot be retroactively applied. “A statute will not be given a retroactive construction by which it will impose liabilities not existing at the time of its passage.” Ford v. City of Caldwell, 79 Idaho 499, 509, 321 P.2d 589, 594 (1958). While procedural and remedial statutes can be given retroactive effect, a statute that creates a right to damages where none previously existed cannot be considered to be remedial. State ex rel. Wasden v. Daicel Chem. Indus., 141 Idaho 102, 106, 106 P.3d 428, 432 (2005). Damages and punishments are substantive law. Id. Consequently, regardless of when the Does’ cause of action would have accrued under the amended statutory scheme, the statute cannot be applied to the conduct that gave rise to the cause of action because it occurred between 1979 and 1983, at least six years before the statute was enacted. Thus, the BSA cannot be held accountable for behavior that was not actionable at the time it occurred."

Bottom line - the case goes back to the district court, which had refused to dismiss the case. And the abuse victims are left without the one thing the legislature intended to create, a right to seek a remedy in court. But this decision is consistent with the law cited by the court and other cases which have held likewise. This time we are reminded as lawyers and persons with potential cases that we must act - not wait.

Protect your rights in any civil case and move sooner rather than later to protect your rights. Don't wait - move. 

If you have been injured you need to pay attention to the limitations placed on every case. Not simply the statute of limitations (START there), but also the underlying legal precedent in that area of the law.

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The problem with over generalizations is - they are in fact over generalizations! Guilty. I may have suggested recently that your likelihood of getting relief on appeal is about the same as coming up with a perpetual motion machine; or a little less than winning that $200 million Power Ball; or swimming from Los Angeles to San Diego - even if you have spent years doing those "Total Immersion" drills. Just not very likely!

Turns out I may have been wrong again. The Idaho Supreme Court has reversed a district judge who summarily dismissed a case in which a criminal defendant claimed that his right to the effective assistance of counsel was denied by both his trial and appellate lawyers. 

I also told you (when you called me from Michigan asking for the names of those appellate attorneys) that Dennis Benjamin was simply a Genius Appellate Defender. And he is. Exhibit A offered in support of that proposition: McKay v. Idaho.  There, Justice Jones (W, not J) showed us once again that the Supremes will, indeed, go analytically into that dark night and turn a case around when the interests of justice require. The right to the effective assistance of counsel for a criminal defendant lives here. At least it lives long enough to grant a hearing on the question.

If you are a criminal defendant you have the right to expect that lawyer sitting next to you will do more than fog up a mirror thrust under his or her nose to establish he or she is living. If you are a criminal defendant in any Idaho case - state or federal - I want you to stop and go read this case. I mean it. Now. It is a good reminder of just how important an effective advocate can be for you in court.

Here's the bottom line - the district court that considered McKay's ineffective assistance of counsel claims granted summary dismissal of the case by which McKay wanted to show his lawyer did not do everything needed to protect his right to due process at trial and on appeal. Specifically, the lawyer failed to object to the jury instructions that arguably lessened the elements required to prove that McKay had committed vehicular manslaughter. McKay had struck a motorcycle from behind while he was (the State argued) drunk. Idaho law requires the State prove that the operation of his vehicle was "a significant cause contributing to the death" of the motorcycle rider. The jury instructions failed to require consideration of the question of whether McKay's drinking and driving was a significant cause. McKay claimed that the motorcycle's tail light was out and regardless of driving or drinking he would not have seen the rider, negating causation.

Dismissal of the post-conviction petition without a hearing was an error. This does not mean that McKay's conviction is vacated, but rather that the district court will have a hearing to determine if the other requirements for an ineffective assistance of counsel claim are present.  

Look - we miss stuff in trials. Most criminal defense lawyers work hard and do a good job. But we are human and we do not always get it right. So McKay has Dennis Benjamin to thank for some great work on his appeal of the denial of the petition for post-conviction relief. 

And what about your case? Have an ineffective assistance claim? Jump in here and tell us your experience. And go read my post "Three Things Clients Need From Their Lawyers" for information you need from your lawyer. Assistance requires communication and we do not always get it right. Coming soon here - Three Things Lawyers Need from Their Clients.

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Reversing a conviction for rape this week, the Idaho Court of Appeals reminded all of us that the system works when the rules leveling the playing field are enforced. That applies to defense lawyers and prosecutors alike. As Judge Gutierrez noted: "While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to be fair."

So the case of State v. Troutman takes another turn down the road of justice.  Noting that a "fair trial is not always a perfect trial," Judge Gutierrez finds that the error here interfered with the right to a fair trial and results in giving Mr. Troutman another day in court. If you are facing any criminal charge, you need to read this case. Go do it now.  

The decision is a great reminder of the complexity of criminal trials, and it reminds me of the following THREE TRUTHS about the criminal justice system.

FIRST TRUTH - every lawyer in that trial has duties that he or she must oblige. Judge Gutierrez noted the prosecutor's duties to the people of the state, including the duties to the defendant. Hard blows are fine in the courtroom, but they must be fair blows. Mischaracterization of the evidence or the defense theory is not permitted. And mischaracterization is so easy to do in the heat of the battle in the courtroom. We are advocates in there, fighting for our client, and the fight gets hot sometimes and it is largely unscripted. When I read something that I have written here and reflect that it goes too far or misses the mark, I simply correct and re-save. There are no "re-do" buttons in an argument before that jury, so remarks need to be carefully considered. But none of us - not the best lawyers I know (Nevin or Spence) nor the best prosecutors for the State or the United States (hard to choose here) - none of us - gets it right everytime. We make mistakes and we fight too hard. In closing arguments we get going a hundred miles an hour and turn facts into stone when really the world is far more mud than rock. I won't cast stones at the prosecutor here, and neither did the Court, for I too have taken arguments at trial too far.

But the difference is critical - and the SECOND TRUTH - prosecutors have a higher duty than simply fighting the good fight. 

"The role of the prosecutor is to present the government’s case earnestly and vigorously, using every legitimate means to bring about a conviction, but also to see that justice is done and that every criminal defendant is accorded a fair trial."

When I get it wrong in pursuit of an acquittal I may affect the outcome of the trial, but my duty rests solely with my client. The prosecutor must temper his or her role in the battle against a higher calling - to make sure every defendant has a fair day in court. Maybe this decision will cause prosecutors to stop and reflect on that duty as they go about their duties.

The  THIRD TRUTH is that sometimes you need that review by another judge or higher court to save the day. As I said above, lawyers often get it wrong in the heat of the battle, and there is no immediate review as in a football game. We don't go to the referee upstairs with instant replay for a quick review. Judges sometimes get it wrong too. Here the appellate court thought the trial judge failed to adequately protect the defendant's rights. It happens. Thankfully the Court of Appeals was there to review the case and make it right.

So what does all this mean to you as a criminal defendant heading to trial? Get the best lawyer you can afford. Let your lawyer work hard to win your case. Trust him or her but remember - something will go wrong at trial. It always does. Hopefully your judge will catch it but maybe not. So be prepared to fight to the death to clear your name. And hope for one of those appellate miracles if that is all there is left to hope for.

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You may recall that I recently wrote about an incident involving a Boise man who was Tasered against Boise Police Department policy and the City Ombudsman's decision that the officers had violated their policy and his rights.  He planned to sue for damages while local officials could not find a criminal charge to use against the officer.  Today we have a reminder of just how much danger a Taser may pose to each of us if not used "correctly."

The Charlotte Observer reports that city will pay the family of a 17-year-old who died after being shocked by a Taser, $625,000.  The paper reports that the officer kept pulling the Taser trigger for 37 seconds - while the boy collapsed and ultimately died.  

Power - again the power we give the police requires them to act reasonably, so says the Constitution.  

And most officers do act reasonably. But when they do not - a victim has a cause of action for the damages caused by the officer's actions.  I know that Tasers are supposed to be safe when properly used, but the safety of the device depends on the person using it.  You know - sort of that "Tasers (guns) don't kill people, people kill people."  Let's hope this never happens in Boise - and that the officers we count on for protection will act reasonably.

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 Yesterday I wrote about an article in the Idaho Statesman concerning a finding by the Ombudsman that the Boise Police had gone too far when they tased a man - on the "buttocks."  Today the Statesman reports that man has hired a lawyer to file a lawsuit.  As telling - here is what the Murphy had to say:

Murphy concluded that the officer who Tased the man violated the Boise Police Department's use-of-force policy. He said evidence showed the man was shocked once in the back before he was handcuffed, and once in the buttocks after he was cuffed, and threatened with further shocks to the anus and genitalia.

"This clearly was excessive force. It's just not defensible. It's very troubling," Murphy said.

The Ada County Prosecutor has declined to prosecute this case because the conduct was not, in its opinion, illegal.  Or, if it was illegal, the office does not think a jury would convict.  Isn't that what we have juries for?  To make those decisions?  

An average citizen who pulled this crap would be prosecuted - and the smart folks at the Ada County Prosecutor's Office seldom have difficulty in finding a charge.  How about assault, battery, aggravated assault, disturbing the peace - just for starters.  Of course the United States Attorney's Office may still charge someone - one of these unidentified officers who still has his job.  But isn't it a little too cozy to have our lawyers at Ada County make this call since every day they need Boise City Police Officers to testify in the cases they do prosecute?

When I was in the Army there was a new commander who noticed that the NCOs in his new unit had "staffs" or "walking sticks" they carried.  The "sticks" were not standard issue - they served only to remind the troops who had the power.  Shortly the commander announced to the unit in formation:  "On the subject of 'walking sticks,' if you are an NCO who NEEDS one, carry it."  His message was received and the ridiculous practice ended.  

Power does not come at the end of the stick - it comes when the people you lead respect you enough to en-power you.  

Cops do not need Tasers when they have an overweight man on the ground and under the control of two or three uniformed officers.  Using that Taser (stick) was just a reminder of who had the power - not the guy on the ground.

I only wish the Ada County Prosecutor had shown us that it understands who really has the power here - the people's lawyers.  They represent us - you and me - especially when police officers go too far.

By the way - that 18 year veteran officer who ERASED an audio interview of the man on the receiving end of the taser understood who had the power and who might use it to prosecute a fellow officer.  Simply hit "erase" and make that evidence go away.  No crime there either?  Right - no crime.

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 An Idaho Statesman article reports on the findings of the Boise Police Ombudsman that officers used excessive force when they used their Taser on a suspect's "buttocks."  OK - so another poor fool got the Taser and now the Ombudsman wants us all to understand that even he can identify misconduct when he sees it - or hears it.  That would be screaming and pleading and the smell of "ham" frying.  Here's what the Ombudsman reportedly found:

"The suspect said that he was hit three times with a Taser after he was already handcuffed and face-down on the floor. Murphy's investigation found evidence that the suspect was hit twice with the Taser — once in the back before he was handcuffed and once in the buttocks after he was cuffed."

Of course the notion of excessive force usually involves injuries, sometimes deadly injuries. I posted about this before and provided a video of what it looks like to get the Taser treatment.  Check that one out to see what you think about this "non-lethal" force.  

Here's what I cannot figure out - what happened to those cops who could take control of a suspect without Tasing or beating or whining about how tough their job is?  Why do they get all that training on the use of reasonable force, only to pass a personal "tasing" so that they can then deploy the Taser instead of reason or reasonable force. The officers I meet in court seem fit enough to handle almost any drunken fool WITHOUT the use of Tasers, so why go for the simple solution?  

Then again, nobody died.  And give the officers a break on the "inappropriate language" beef.  The constitution does not guarantee civility, it simply outlaws cruelty.  These officers put up with a lot of grief from suspects, and an occasional verbal shot across the bow won't likely ruin anyone who is in that "under arrest" situation.  Of greater concern by far is the notion of young men (mostly) being treated unreasonably when arrested. 

If you have been subjected to excessive force during an arrest - join in here - share your story by commenting on this post.

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 Congrats to my brothers and TLC Warriors on their victory in Houston in a civil rights case that pitted Kent Spence and Rafe Foreman against Harris County Sheriff's Office and its deputies. After just four hours deliberations, the jury awarded the estate of Joel Casy $600,000 and $2.4 million to his mother.  The Houston Chronicle reported:

Casey’s death was ruled a homicide. An autopsy found the 52-year-old man died of psychotic delirium with physical restraint associated with heart disease.

He also suffered fractures to his seventh cervical vertebrae and the left horn of his thyroid cartilage, believed to have occurred when one deputy dropped a knee on Casey’s neck and pulled Casey’s head back, said the dead man’s attorney, Kent Spence.

You can read more about this case here .  Sometimes juries get it right.  Casey had complied with officers who showed up at his house to arrest him on a mental health warrant.  When he complained about the pain one of the handcuffs was causing him, Mr. Casey (a 52 year old man who suffered from schizophrenia) was taken to the ground and an officer put a knee in his back while pulling his head by the hair.  

Look folks - this stuff ain't rocket science.  Simply treat others like you would expect to be treated. There was no need for Mr. Casey to have died here, and a jury said so.  Police misconduct cases are tough, and I cannot think of any local cases in recent times that have resulted in a favorable verdict, but it can happen (remember Ruby Ridge!).  If you think you have a case - consult an attorney who can help you level the playing field. 

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 I happened to check out a blog entry tonight in which the Eleventh Circuit Court of Appeals decision in Buckley v. Haddock was reviewed.  In Buckley, Court ruled that an officer who used his taser on a handcuffed man arrested for a misdemeanor had NOT used excessive force.  The cop had ordered the man to get up off the ground, and threatened his with the taser.  Imagine this - the man who was on the ground crying, did not get up after being tased the first time, so the officer tased him again. And again. And again. Just like when your four year-old won't stop hitting his sister, so you have to hit him.  Right? Not excessively, of course.  Just a little whack to stop him from whacking his sister. Apparently that's the way they do it in the 11th Circuit.  I always wonder if the Judges who have sworn an oath to uphold "justice" would rule like this if it was one of their own family or friends on the ground twitching from the use of the "non-excessive force."

In ruling that the deputy did not use excessive force, the Court stated:

"Needless to say, officers acting alone may not always use any and all force necessary to complete an arrest without assistance. If Deputy Rackard had used more severe techniques (beaten [the motorist's] head with a club or shot him, for example), this case would be a different case. Here, the record shows that Deputy Rackard only used moderate, non-lethal force; and he did so only after reasoning with [the motorist], then after trying to lift [the motorist], and finally after repeatedly warning [the motorist]-a warning given before each use of the taser-that a taser would be used. In short, Deputy Rackard gave [the motorist] ample warning and opportunity to cease resisting before the deputy resorted gradually to more forceful measures. Even then, [the motorist's] injury was not great; and the deputy holstered his taser after using it briefly three times."

Here's an idea - let the drunk sit on the ground and call for assistance.  Too easy?  OK, just gently tase him then.

A friend of mine who is a preacher says that someday there will be justice, but until that day, there's "just us."  Check out the video and see what you think.

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I get at least three calls a week from folks who think their civil rights have been violated and want me to take their case. "Cause" might be a better description than case for the most part. So why is it so tough to get an attorney to take a civil rights case? Here are my Top 4 Reasons Most Civil Rights Cases Can't Find A Lawyer.

Reason number one - your civil rights have not been violated. The average person has a very broad view of his or her civil rights, much broader than provided for under the law. That view is almost always broader than the jury's view! In general, you have a civil rights case if someone, acting under color of state law deprives you of a personal right protected and guaranteed by the United States Constitution or a federal law. The most common personal rights include freedom of speech, the right to vote, due process of law, equal protection, and unlawful discrimination. Civil rights laws apply to persons acting under color of state law, and even that part is tricky. Sometimes a city or agency can be a "person" but not always.  Civil rights cases often involve police brutality claims, and claims against employers who retaliate against a public employee for some reason - like the cop in Chicago who won $900,000 against his former boss for retaliating against him when he tried to investigate police corruption.  One of my Trial Lawyers College Classmates represents firefighters who have suffered from sexual harassment and retaliation.  These types of cases have civil rights components.

Reason number two - the government has immunity from much of the stuff that otherwise would be a civil rights case. Immunity comes in two varieties - absolute and qualified. So, you cannot sue the judge who treated you poorly during a trial. He or she likely has immunity that protects him or her from a lawsuit. The same is generally true with law enforcement officers, unless you can show that they acted with reckless indifference to you.  Their immunity is likely not absolute - but qualified immunity may also keep you from collecting, if it applies.

Reason number three - your damages may not be enough to merit filing a lawsuit. OK - let's say that the cops locked you up for a day and that it was otherwise a violation of your civil rights (assume - due process). What money damages did you incur? Often when I ask this question the answer is "I lost a day's wages."  Civil rights cases, like every other civil case, requires a weighing of damages and liability against the time required to prevail. If the damages are not high enough to attract an attorney - good for you! You may have gotten a bad deal, but the harm did not likely ruin you. 

Reason number four - these cases are incredibly complex and very tough to win. Jurors want to trust the folks we end up suing in these cases.  So winning a judgment requires a lot of time and commitment by the trial lawyer. Years ago I tried a case in which my client (a deputy) had not been given a hearing before he was fired. An inmate under his supervision had killed himself, and the city blamed my guy because he had not apparently checked on the deceased every 15 minutes. I spent so much time on the case that by the day of trial I literally wished I had not taken it. I burned thousands of hours before we even got to pick the jury! In the end we won the case - but the difficulty of the case weighed on me for years. It is easier to run a race on a sunny day than in the mud and rain! And I felt wet and muddy after that "victory." On an hourly basis, my ultimate recovery worked out to about $10 an hour for all the time I spent.

So there they are - My Top 4 Reasons Most Civil Rights Cases Can't Find A Lawyer. Of course having said that - if you really HAVE a civil rights case maybe we can take your case. Got a question about your civil rights? Send us a comment or call us to talk about your situation.  We fight to protect your civil rights here in Boise, Idaho or wherever you may be.

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