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Legal Reality Newsletter 09/15/2011


Fwd: Ex-Police Auditor Stunned by ‘Timing’ in Caught on Tape Probe; So. Fla. Cop: “We Can Videotape You, But You Don’t Have The Right To Videotape Us”

15 September A.D. 2011

Circulated about a month ago (mid-August) was a story about wrongfully arrested, charged, and convicted protestors stemming from their 2007 activities in front of the White House.  The appellate court found “no evidence” of any wrongdoing.

What about the case in which there is evidence of wrongdoing?  Just how much physical force is legal to exert in subduing the suspect?  Obviously, that depends on the circumstances.  How does one obtain evidence of the circumstances?  The popular means these days is by video recorders, whether hand-held or built into a cell phone.

That brings us to the matter raised in the Subject line.  Who gets to videotape whom and under what circumstances?  Circulated a couple of weeks ago (end of August) was a story about the overruling by the federal appellate court of the state law (of MASSACHUSETTS) that pretended to ban the video-taping of cops.  The “game” there was that the cops hid behind the statute preventing the gathering of (video) evidence of excessive force.  It’s a bit more subtle way of preventing the collection of exculpatory evidence.

Key to any case is the evidence.  One can argue “law” all day, but without FACTS the render those particular legal principles relevant, the discussion is, at best, mere “interesting.”

Where there are FACTS that show/prove violations of rights, there is solid law supporting those who have that kind of claim to assert.  Thus, circulated, again, is some language relevant to those types of claims.  In the excessive force during arrest concept, we’re starting with the concept of “unreasonable search and/or seizure.”  As was included before, and as is included here, this is a two-way street.  Where there truly is an “attack” on a cop, there are solid laws protecting them, as well.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983

(1) Preventing officer from performing duties

If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;

(2) Obstructing justice; intimidating party, witness, or juror

If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;

(3) Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

42 U.S.C. § 1986

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured – They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 U.S.C. § 241

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 U.S.C. § 242

Where it becomes commercially impossible for this or that “authority” to remain “in business” AND violate people’s fundamental rights, the abuse will stop.  It’s very expensive to run a police state.  There’s a LOT of overhead.  Those who are victimized do their families, friends, and neighbors both a favor and a service by demanding compensation for the (criminal) violations of rights.

The level of stress in this nation has been pushed off the top of the chart, and all of it is designed and fabricated.  We’re in an “emotional hothouse” of specific design and intent.  In practicing the “seven habits,” keep in mind that it can really help in high-stress circumstances to try to understand the perspective brought to the matter by the “authority” person.  Just the same, they don’t get a pass to engage in whatever form of abuse suits their fancy at the moment just because they, too, have been artificially stressed to the point of breaking.

Harmon L. Taylor
Legal Reality
Dallas, Texas

Subscribe / unsubscribe : legal_reality@earthlink.net

——– Original Message ——–

Subject: Ex-Police Auditor Stunned by ‘Timing’ in Caught on Tape Probe; So. Fla. Cop: “We Can Videotape You, But You Don’t Have The Right To Videotape Us”
Date: Thu, 15 Sep 2011 07:51:08 -0500

http://nebraska.watchdog.org/16639/ex-police-auditor-stunned-by-timing-in-caught-on-tape-probe/

Ex-Police Auditor Stunned by ‘Timing’ in Caught on Tape Probe
By Joe Jordan on September 12, 2011
Print This Article Print This Article

“Really hard to believe.”

That is the reaction of former police auditor Tristan Bonn when asked about recent events surrounding the latest caught on tape case involving the Omaha Police Department (OPD).

The case involves allegations that police used excessive force last May while arresting 35-year-old Robert Wagner in the parking lot of Creighton University Medical Center.

Last week Nebraska Watchdog asked Police Chief Alex Hayes  to explain the timing of his decision to place two officers on paid administrative leave following a series of last minute developments in the three month old case. Hayes said the timing was ”coincidental.”

Here’s the timeline:

Earlier this month a May 29 surveillance video surfaces (see video below) showing several police officers forcefully taking a man into custody.
Critics of the ‘caught on tape’ incident call a news conference to complain that excessive force (one female officer is seen repeatedly kicking the man) was used during Wagner’s arrest.
Two officers are taken off the streets until police conclude their internal investigation.

Bonn, the ex-police auditor who investigated dozens of complaints against police before she was fired by former Mayor Mike Fahey, finds Chief Hayes’ explanation a stretch. “If that videotape doesn’t get leaked we know nothing,” Bonn tells Nebraska Watchdog. “This case comes and it goes.”

But Hayes is downplaying any suggestion that the decision to take the officers off the street was tied to the video going public. According to Hayes the moves stemmed from “investigators needing time to be thorough and follow the process for internal inquiries laid out in the police union contract.”

University of Nebraska at Omaha professor Sam Walker, a nationally recognized expert in police matters, does not see any red flags in Hayes’ discipline timeline.

But Walker tells Nebraska Watchdog he has several other major concerns including the fact that “such a vicious kicking/beating could occur in the first place.”  Walker says he’s upset that no other officer “stepped forward to stop it. The same issue was true in the Rodney King beating in 1991.”

Walker also notes that Omaha City Prosecutor Marty Conboy, who has reviewed the video, has not filed any criminal charges in the case. Walker says “What would you call it if you were on the ground and I kicked you for no legitimate reason.”

OPD’s internal investigation is expected to take another few weeks.

Reported by Joe Jordan, joe@nebraskawatchdog.org

Editor’s note: to subscribe to News Updates from Nebraska Watchdog at no cost, click here

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http://www.pixiq.com/article/Golden-Beach-Cop

September 14, 2011 @ 3:03AM
So. Fla. Cop: “We Can Videotape You, But You Don’t Have The Right To Videotape Us”

In a police force of less than 20 officers, it’s probably not that difficult to be named Officer of the Month.

Take Golden Beach police officer Robert Ruggiero – who was recently named Officer of the Month in this tiny town on the northeast corner of Miami-Dade – a one-mile stretch of road on the county border notorious for its speed traps.

Ruggiero confronted a citizen the other day who was recording him during a traffic stop, so he informed the citizen that recording cops without their consent is a felony in Florida.

Ruggiero was so convinced of this myth that he even happily provided his name and badge number to the citizen, urging him to take that to his lawyer.

Turns out, the citizen is a Miami-based contributor to Cop Block and a regular Photography is Not a Crime reader. He knows exactly what his rights are.

And now he wants Ruggiero to learn as well.

To see the actual incident, start the video at the 2:15 mark where you’ll hear Ruggiero say the following:

“It’s a felony in the state of Florida to videotape an officer at a traffic stop,” he said.

“You see, the law says that we can videotape you, but you don’t have the right to videotape us without our consent or record us.”

The incident continues again at the 3:45 mark.

“If I ever run into you at a traffic stop, if I stop you, and you audio tape me or video tape me, and you don’t have my consent, I promise you, I will arrest you for a felony. And we’ll battle it out in court.”

I just might take Ruggiero up on his challenge because as long as he’s making promises, I can promise I will beat his ass in court if he arrests me for video recording him without his consent.

The video also shows Cop Block founder Adam “Ademo” Mueller, who lives in New Hampshire, calling the Golden Beach Police Department to interview Ruggiero about his knowledge of the law.

Ruggiero hems and haws and proves he is nothing but a city bumpkin.

It is not surprising he ended up on the Golden Beach police force, which is known for its corruption and ineptness.

Earlier this year, two other cops who had also won Officer of the Month honors were arrested on fraud charges as well as a third officer who probably wasn’t there long enough to win the honor.

The scandal resulted in the resignation of its police chief. The town hired a new chief late last month.

[Contact information in the original story has been deleted]

 

 

 


2 Comments on “Legal Reality Newsletter 09/15/2011”

  1. Public officials do live in glass houses. That does include Police Officers.

    • If communities knew what the legal requirements for public officials were, they would understand what the legal remedies are that are available to them. All actions taken in regulation eventually manifest in commercial action. The focal point in any dispute is proof of injury and loss. Every restriction in adminstrative law is an injury. Proving that the action was unlawful makes everything work the way it’s supposed to.


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