Calling the Police and What To Do When They Arrive

Michael Brown. Eric Garner. Debra Harrell.

These are the three names that Yale Law fellow Emily Bazelon gives as examples for her police-averse policy in her Slate article, “Why I Don’t Call the Police.”

In the article, Bazelon explains that her experience as a journalist and studies of law enforcement statistics strongly indicate that, “… if the criminal justice system gets a hold of a black person, especially if he is poor, there is a terrible, heightened risk that it will try to crush him.”

Bazelon cites numerous instances, including the cases of the three people named above, in which police treatment of black individuals triggered intense national debate about the role that race plays in contemporary law enforcement.

Police Lights

Eric Garner was killed when Officer Daniel Pantaleo used a prohibited chokehold restraint to subdue him and failed to administer cardio-pulmonary resuscitation (CPR) until seven minutes after he stopped moving.  Pantaleo was sued twice for alleged arrest- and abuse-related violations in 2013.

Debra Harrell was arrested and charged with felony “unlawful conduct toward a child” after police responded to a call and found her 9-year-old daughter at a park while her mother worked at a nearby fast food restaurant.  The girl, who had a cell phone and house key, was six walking minutes away from home and was not in apparent danger.

Michael Brown was shot and killed after an encounter with police. Brown was not armed and bystanders indicate that he did not threaten or otherwise provoke the officer who shot him.  Although details remain scarce, the St. Louis suburb of Ferguson, Missouri is now filled with police officers carrying military-grade equipment, callously opportunistic looting, and tensions growing with each passing day.

These cases are exceptional, but still too common. Gene Demby writes that 4,813 people died between 2003 and 2009 during or soon after arrest attempts, with 60 percent of those deaths classified as homicides.  Bazelon acknowledges that the statistical likelihood of an arrest-related death is low, with 98 million arrests made during the same period, but calls the number “scary” in light of the ways that police departments appear to avoid publication of similar incidents.

Ultimately, Bazelon will “try to choose not to” involve police in the life of a black person if she can avoid it.  Many people share her sentiment, electing to attempt various forms of self-help before calling the authorities to respond to crime.

In some communities, people markedly avoid calling police, instead practicing “self-preservation” and often relying on local faith leadership to help them cope with harm they have suffered.  Columbus Police Commander Bob Meader acknowledges that people in inner-city neighborhoods, in particular, are typically more interdependent and “tolerate things in different ways” than people in suburban areas.  Meanwhile, ubiquitous media coverage and sensationalized commentary from all angles creates additional fear, confusion, and confrontation among observers, pushing more communities to look inward for help.

Whether institutional bias pervades police departments to the extent writers like Emily Bazelon suggest, or the wounds of violence in some communities are largely self-inflicted, the reality that many people cannot interact with police officers without panicking is a dangerous problem.

So, what should you do if the police stop you?  If you witness something dangerous, should you call the police?

  1. Your life is more important than your attitude, so don’t argue with an officer.

Whether the cop who stopped you is one of thousands of respectable officers of the law who will perform his duties admirably or one of the dangerous few who could make a lethal mistake, there is simply no reason to risk escalating a stop into a verbal confrontation (or worse).  It is imperative to remember that police officers constantly endure tremendous stress and forcing an officer to decide whether you could threaten his safety is a losing proposition.  When an officer stops you and wants to talk to you, speak to him as you hope he would speak to you if you wore the uniform: in a calm, respectful tone without cursing or shouting.

Magnifying Glass

  1. Comply with the officer’s orders and let him do his job.

Police officers responding to a possible crime have two primary goals: (1) restoring peaceful and safe conditions, and (2) investigating whether a crime has occurred and securing evidence to make an arrest, if necessary.  If a police officer witnessed an infraction, which is nearly always the case for traffic stops, then his decision whether to arrest you will not be positively influenced by a spirited debate.  Police officers are not prosecutors, judges, or your parents – trying to argue your case to them puts your safety and your legal rights at risk.  If you believe the officer is mistaken about whether you violated a law, you may politely explain yourself, but remember that whatever you say could be construed as a confession.  Attempting to combat an officer’s decision to arrest you by verbally or physically resisting will almost certainly result in graver legal consequences and could spiral into a violent altercation that you cannot win.

  1. Respond to basic questions, calmly refuse searches, and do not speak if you are placed under arrest.

Police are legally justified to engage anyone in consensual conversation, and can stop a person for a reasonable amount of time with articulable suspicion that the person is engaged in some criminal activity, including traffic violations.  Police may ask your name if the stop is justified, and it is generally advisable to comply rather than dispute the reasonable basis for the stop.  Police are also permitted to ask for your consent for a search, and may even suggest that they “already know” what you are hiding.  If an officer asks to search you, your vehicle, your home, or other property you control, you can always politely refuse.  Your refusal cannot be used against you, and if the officer proceeds without consent, whatever he finds might be excluded in court if you are later charged.  The most important thing to remember is that police misconduct can be corrected in court.  Unfortunately, however, the court cannot correct the pain or disability of injuries you suffer if a police officer, fearing for his safety, uses force to subdue you.

  1. If you witness a crime or think someone is in danger, call the police.

In perhaps the most famous misguided self-help case in recent history, George Zimmerman attempted to apprehend Trayvon Martin himself instead of waiting for police to arrive.  Zimmerman killed Martin, but was eventually acquitted of first-degree murder because the jury believed he acted in self-defense.  Regardless, Martin is dead and Zimmerman’s life is forever changed for the worse.  The lesson to be learned from Zimmerman is that your life and the lives of everyone else involved are imperiled if you don’t seek professional help for dangerous situations.  Just like you would call the fire department if you saw a burning house, you should call the police if you see someone breaking in through your neighbor’s window.  In the overwhelming majority of cases, police officers perform helpful and necessary work for the community and can turn dangerous situations into peaceful resolutions.

The Constitution can protect you from injustice, but not from loss of life.

The Fourth, Fifth, and Sixth Amendments provide the backbone of criminal procedure and guide police practices whether the officer and suspect know the rules or not.  If an officer arrests you without cause, forcefully interrogates you without proper advisement of your rights, or denies access to counsel, the judge assigned to your case will unravel the damage to the extent possible under the law.  Judges cannot unravel injuries or death resulting from violent confrontations with police, however, no matter how extreme the conduct.  Don’t put your safety or that of the people around you at risk by forcing an officer to react to your conduct.  Instead, let your lawyer and your constitutional rights do the talking.

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Sex Offender Registry Injustice

What was once a well-intentioned law that was meant to make the community a safer place has spiraled into a witch hunt looking to burn alive anyone who wears a pointed hat. While no one would argue that sex offenders should escape free of consequence, the lifetime sentence society has instilled upon these people is extreme. When we think sex offenders, our minds automatically travel to rapists, pedophiles and child molesters. The worst of the worst. Monsters who prey on innocent defenseless victims. Yet that term has come to include so much more.

Justice gravestone

The reason the registry was so heavily advocated for was because of the mistaken belief that sex offenders are more likely than not to strike again. It was believed the recidivism for sex offenders was the norm and not the exception. Although rapists and pedophiles may have the highest rate of recidivism they are not the only ones to be included in this all-encompassing registry. The Department of Justice places the likelihood of repeat sexual offenses around 14% at the high end. The registry was meant to be a warning to the community of dangerous offenders who were likely to repeat the offense that got them into trouble, but has turned into a permanent catch-all registry. The unfortunate fact is, most sexual offenses are committed by family members or someone known to the victim rather than a dangerous stranger. The registry is not particularly effective for preventing intrafamily crimes, aside from alerting people about registrants prior to starting a relationship with them.

Before we fly off the handle, there are definitely some sex offenders that are dangerous. There are some that are, and will always be, a danger to the community. However, not ALL sex offenders are a danger to the community. In fact, the majority of “sex offenders” are just people who made mistakes. The term “sex offender” has grown to encompass a myriad of people that were never supposed to be included on this list of dangerous offenders.

The best example is being placed on a sex offender registry for public urination. This cDrinks at a barharge is almost commonplace in Tempe, Arizona on Mill Avenue, where many young college students go out drinking and eventually have to use the facilities. Tempe does not offer public restrooms, so these patrons are forced to seek out a private restroom in a club. To get into the club, they must wait in line, show their ID, then (if they didn’t have to pay for entrance) run to the closest bathroom. There are no other alternatives – except behind a dumpster. Did the City of Tempe solve this issue by installing public restrooms or even port-a-johns? No, they did the next logical thing: started placing people who urinate in public on a sex offender registry.

This should be considered an abuse of the registry that was supposed to be keeping neighborhoods safe from sexual predators who stalk or kidnap their victims, strangers to the perpetrator, and force sexual acts upon them. There are certainly some people who deserve to be on this list forever, but the registry was never meant to include such “harmless” acts as peeing on the side of the highway miles away from the nearest rest stop. While those acts are technically illegal, a ticket and fine would be an appropriate punishment — not a lifetime on a sex offender registry.

Having these petty offenses qualify for registry status only serves to dilute the seriousness of being on the registry in the first place, reducing its effectiveness in warning neighborhood residents of potential risks. The registry was meant to keep communities safe, but has become a lifetime punishment for many people caught within its bloated scope. Does that make you feel safer?

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Children Saved from Hot Car

It’s scary to think that anyone would leave their children locked in a car during the summer months. Recently, a Texas mother did just that. She went to get her hair cut at a salon and left her children in the car.

Shoppers at the center heard children crying and quickly found the two children locked in the car. What would you do?

Parking lotAfter hearing the cries of the children, a few people passing by knew they had to do something. Thinking they had little time to spare, they busted the window of the car and soon had the children out in fresh air. The mother came out to see what the commotion was about and realized what was happening. She begged the crowd not to call police and no one had. Hopefully, this was a lesson learned for the Texas mother and she will not leave her kids in the car again.

This could have been a very tragic story. Things like this happen all too often around the country. We have heard numerous stories this summer of children being left in cars. Recently, Shanesha Taylor left her children in a car while she went in for a job interview in Scottsdale, Arizona. Luckily it was not during our hottest summer months in which temperatures are known to reach over 110°, but Ms. Taylor was charged with felony child abuse. Leaving a child in a locked car in the summer is a serious offense and very dangerous to children, especially here in Arizona. It is important to remember not to leave your children in the car even for a “quick” errand. Take the extra three minutes to unbuckle them and bring them in with you.

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Parenting Disaster

The tables were sadly turned on a well-meaning former Pennsylvania prosecutor and his wife when they were charged with child abuse. The couple, Douglas and Kristen Barbour, thought they were doing the right thing in adopting two children from Ethiopia, but soon learned they were not equipped to parent these children with special needs.

The Barbours adopted a 6-year-old boy and an 18-month-old girl in March of 2012. They believed if they raised the children as they had raised their two biological children, they would enjoy the same great results. Unfortunately, the children did not adjust as well as the parents had hoped and the Barbours soon recognized they needed help. They sought the advice of an expert in foreign adoptions but refused to follow his recommendations to be more flexible with their parenting style. They wanted to parent the way they saw fit.

Small GirlThe Barbours made sure to bring the children to the doctors when the children were ill and tried their best to handle the children’s behavioral issues. However, it was soon clear the parents could not meet the children’s needs and the children suffered as a result. Although the boy was six, he went to the bathroom in his pants. The parents attempted to discipline him by forcing him to eat in the bathroom or stand alone in the dark. The girl had multiple head fractures – although the parents allege it was because she was clumsy, the doctors who examined her were doubtful of that conclusion. As a result, the boy was malnourished and ended up losing 10 pounds in the Barbours’ custody and the girl was healing from multiple fractures.

Similar situations have happened in Phoenix, Arizona and Birmingham, Alabama in recent years, where excessive punishment led to criminal charges that made national news.  Arguably, many of these parents did not intend to hurt their children. In fact, several sought help from experts, but in the end were patently unsuccessful, usually because they failed to follow the experts’ advice. Notwithstanding various safeguards that exists to protect children, the harm that parents can inflict is often the worst of all.

Click here for more on this story.

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Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

ConfrontationIn order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice court in places like Mesa, Glendale, or Scottsdale, or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served on the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court and the judge will decide whether the Order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. Orders of Protection prevent you from possessing a firearm and, if you already own one, force you to relinquish it. The Court could also order the exclusive use of a common residence to the Plaintiff.

Gated Patio

The Order may also limit your ability to see or communicate with children, and that could also have an effect on any other pending family court cases.  Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child,” but the weight that the judge gives to allegations in protective order hearings is often greater than what would be given in other types of cases.

Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis even with a minimal allegation of danger. This is a small consolation because in the end an Order of Protection could affect permanent parenting time and legal decision-making.

Although many parties proceed without representation in Order of Protection hearings, the severe consequences of having an Order entered against you may justify retaining an attorney.  Even though the Order is temporary, its impact can last a lifetime.

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Clerical Miracle?

In a bizarre clerical error, a man convicted of robbery never saw the inside of the cell he was supposed to occupy. Cornealious “Mike” Anderson waited for his day to come. The sentence was given and he was ready to turn himself in, only Anderson never heard back from court officials. He contacted his attorney and still heard nothing.

Over 13 years later, when Anderson’s sentence was due to end, authorities realized he had never been in their care. In an attempt to correct the error, U.S. marshals picked him up at his home and took him to the facility in which he should have spent the last 13 years.

Gavel

However, it turned out that after his courtroom scare, Anderson turned straight. He started a business, got married (twice), had three children, and even volunteered as a coach.  He became an exemplary citizen without having served any time.

After hearing the unusual circumstances, the Missouri Judge decided Anderson deserved credit for the “time served.” The time he was supposed to be in prison, according to the judge, now counts toward his sentence, essentially freeing him without jail time.

The current criminal system attempts to serve several purposes: incapacitation, retribution, deterrence, and rehabilitation. The fact of incarceration prevents the offender from committing further crimes during the sentence. Retribution looks to punish the offender ostensibly based on the seriousness of the crime. Deterrence is set to deter people from committing crimes in response to the threat of punishment. The rehabilitative goal is to reform the offender into a law-abiding citizen. One of the most common occurrences to imprisonment is recidivism. Within 3 years of release, according to the Bureau of Justice Statistics, almost 50% of persons released are re-incarcerated.

In Anderson’s case, it seems just the thought of a 13 year sentence scared him straight. Though nothing like this has happened in Phoenix (at least, to the best of our knowledge), surely it would produce a similar result. Anderson turned his life around and became an upstanding, productive member of society. His success in life may have been due to the fact that he did not go to prison. In fact, not being incarcerated may have been what prevented him from returning to prison later in life. There was no need for him to resort to a life of crime once he was released. Many convicted persons resort to criminal behavior upon release because they have no other way to support themselves. Justice would not have been served to put him behind bars after 13 years and such a positive and successful life.

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Whose Team are they on? CPS Removal and TDM Meetings

A CPS investigation is beyond frightening. What are your rights? Why does it seem like the investigator is interrogating me?  The investigator keeps saying that this is not a criminal matter, but do I need a lawyer?  Do I have to answer the questions the caseworker is asking?  What is this Team Decision Making meeting and who is on the team?

Frequently, CPS receives allegations of abuse either through the 1-888-SOS-CHILD hotline or they are contacted by police officers when there are children involved in a related or unrelated investigation. CPS, using their internal protocols, determine whether the information requires further scrutiny. If they determine further inquiry is warranted, an investigation is opened and the case is assigned to a caseworker or “specialist.” The caseworker then meets with the child, interviews the parents, and coordinates with the police to ultimately determine whether the child is safe in their current living situation or if a “removal” is necessary.  If they believe it is an emergency situation, DES/CPS will serve a Temporary Custody Notice on a parent and take the child for 72 hours while they continuetheir investigation.
Office
At the point of removal, CPS has 72 hours to either return the child, develop a “safety plan” approved by the parent, or file a Dependency action requesting the Superior Court place the child in CPS legal care pending further court hearings. During this 72 hour period CPS contacts the parent and invites them to participate in a “Team Decision Making” meeting (also known as a TDM) at the local CPS office. Often times the meeting consists of family members, friends, the case worker, service providers and sometimes the police.
 
What are my rights during the TDM?

Foremost, the name is a misnomer and tremendously misleading to parents who are being accused of abuse or neglect.  The implication is that everyone around the table is part of the “team” and the parents are there to assist in the decision making process. The facilitator of this “team meeting” is a CPS worker and often times CPS has already made a decision about bringing the matter to court before the process has even begun. In some cases, the paperwork has already been drafted and is ready to be filed with the court to begin the Dependency action. Designating this a “team” meeting when the parents are walking into this trap is like leading a pig to the slaughterhouse and calling it a vacation.
Mouse Trap

Parents should immediately seek legal advice from an attorney once a child has been removed and prior to any meetings with CPS. When parents are contacted about this TDM meeting they are often told they do “not need” an attorney present or they are “not allowed” to have an attorney present. However, these meetings could be very detrimental to the parents’ rights and the case about to begin in court because statements made during the TDM meeting can be used against the parents.  We have even seen cases where CPS invites the police (who are still gathering data in efforts to charge the parents with a crime) to attend the TDM meeting.  The police officers that attend the meeting will just sit there gathering information that can be used in related criminal prosecutions.  
 
Having an attorneys’ advice before making any statement to CPS or the police is critical. An attorney can help protect the right of the parent to keep the child in their home and dispute the allegations made against them. 
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