When Defending Cops Becomes Impossible

[Murph]

It certainly could, although the implications for justice in America become alarming if this is the basis for handing it down.

 

How is this a lose if they get a conviction on the father and son who have been arrested?

 

Community retaliation against the prosecutor and his or her family comes to mind, unfortunately.

It is not a lose, as long as the charge is accurate in describing the conduct. Don't overcharge, you will lose (I know this from personal experience where we charged a guy with murder after he had gunned down his neighbor (both were drug dealers), but the jury decided that it was manslaughter. I am good with the verdict, it was the right decision).

[Murph]

San Marcos officer who was murdered while responding to a domestic disturbance was killed by an illegal alien. The other two officers might get released from the hospital soon. Scumbag criminal killed himself. https://www.ksat.com/news/local/2020/05/13/san-marcos-police-shooter-was-undocumented-may-have-operated-under-different-names/ I am sick and tired of wearing a black mourning strip on my badge, it has not come off for quite some time.

[Simon Tan]

Law Enforcement must never be unaccountable or beyond reproach. The FBI is probably the poster child of this. And the entity MUST suffer for the sins of the few. So the sinners are driven out and run to ground.

[Murph]

I love that my Sheriff is a pack-rat when it comes to records. While it is a PITA at times, I was able to go out to archives, dig through a box, and help a man find closure after almost 40 years on what happened to his nanny who had raised him when he was a child. He had gone through life thinking she was murdered, but after a hour of looking, I found the original report from 1971, and I was able to tell him that she died as a result of a tragic traffic accident. He was so relieved he started crying while we were speaking. He still visits her grave every year. Sometimes we can do nice things for people.

[Murph]

Law Enforcement must never be unaccountable or beyond reproach. The FBI is probably the poster child of this. And the entity MUST suffer for the sins of the few. So the sinners are driven out and run to ground.

Yes. That is why Sheriff's are accountable more so than Police Departments. We report directly to the citizens. It is also why Deputies tend to be nicer to the citizens as well.

[DougRichards]

 

Looks like the ex-cop forgot he was ex.

Most likely. Also what he should have done is call 9-1-1 and follow, but not engage. I suspect a conviction on manslaughter or perhaps a similar charge. Murder is too big a stretch (at least under Texas law) because you have to "Knowingly and intentionally" cause the death of a person. I have not read the Georgia murder statute, but I would be suprised if they were too different.

 

Shooting someone with a shotgun may meet the "'Knowingly and intentionally' cause the death of a person" test. Isn't that the idea of discharging a shot at close quarters?

[Ivanhoe]

That is exactly my thoughts about elected Sheriffs and DAs. I can almost understand it in the USian context, but it raises issues with me about upholding the law (or not upholding the law) to please the voters rather than to meet the standards of the law itself.

I guess it boils down to whether you think that voters or politicians, on the whole and on average, are more law-abiding.

[Ivanhoe]

It certainly could, although the implications for justice in America become alarming if this is the basis for handing it down.

 

How is this a lose if they get a conviction on the father and son who have been arrested?

 

Community retaliation against the prosecutor and his or her family comes to mind, unfortunately.

 

Multiple ways this case is a "lose" for a DA;

- run a clean trial, resulting in acquittal => death threats, family assaulted, etc.

- run a dirty trial, get a conviction => lose law license for life

- run a clean trial, get acquittal or conviction => have your case dissected by law students for eternity (look at the careers of the OJ Simpson prosecutors)

- run a clean trial, get acquittal => kids/grandkids are blocked from acceptance to good universities

- run a clean trial, get acquittal, Dem gets elected in November => face federal civil rights suit, possible IRS oppression

[DougRichards]

 

I kinda dislike the idea that DAs (or sheriffs) would be elected officials instead of civil servants. But no experience how it'd work, in bad or good, obviously.

 

That re-election thing can cause all sorts of quirks.

 

Thus, I can see reluctance of any DA to touch this case, since no matter which way it goes, they are going to lose support from one group or another. Thus lose-lose.

 

Not that I am expert of US judicial system, just my understanding of the situation.

Non-elected officials have a layer of insulation from the people, and can therefore act much more capriciously and not worry about accountability as much.

 

Are 'the people 'always' right?

[Ivanhoe]

It doesn't actually matter if he was the thief they thought he was or any kind of criminal or not They need to have seen him just commit a crime before they can arrest him. Going onto an unposted, unfenced construction site without apparently doing anything else is not a crime in Georgia.

 

I have seen commentary that trespassing with intent to steal is a felony in GA.

 

The two had direct knowedge of Ahmaud trespassing multiple times on the property.

[NickM]

 

 

Looks like the ex-cop forgot he was ex.

Most likely. Also what he should have done is call 9-1-1 and follow, but not engage. I suspect a conviction on manslaughter or perhaps a similar charge. Murder is too big a stretch (at least under Texas law) because you have to "Knowingly and intentionally" cause the death of a person. I have not read the Georgia murder statute, but I would be suprised if they were too different.

 

Shooting someone with a shotgun may meet the "'Knowingly and intentionally' cause the death of a person" test. Isn't that the idea of discharging a shot at close quarters?

 

 

we're splitting the hair of does it say 'thou shalt not kill' or 'thou shalt not murder'....

[JWB]

Here we go again:

 

Breonna Taylor died but she wasn't target of investigation. Police had 'no-knock' warrant, records show

 

LOUISVILLE, Ky. – Shooting victim Breonna Taylor was not the main target of the narcotics investigation that prompted Louisville police officers to enter her home unannounced March 13, police and court records show.

The Louisville Metro Police investigation, records show, was centered around a "trap house" more than 10 miles from Taylor's apartment and two suspects police believed were selling drugs.

Breonna Taylor's shooting death by Louisville police has raised questions about why police entered her home in the early morning hours of March 13 and opened fire on her in her apartment.

Police say that Taylor's boyfriend, Kenneth Walker, fired first, wounding an officer. Walker says that he believed someone was breaking into the home and acted in self-defense.

Taylor, 26, was shot eight times by officers before being pronounced dead at the scene.

https://www.usatoday.com/story/news/nation/2020/05/13/breonna-taylor-not-target-louisville-police-investigation-when-shot/5181690002/

[R011]

It certainly could, although the implications for justice in America become alarming if this is the basis for handing it down.

 

How is this a lose if they get a conviction on the father and son who have been arrested?

 

Community retaliation against the prosecutor and his or her family comes to mind, unfortunately.

Based on reaction from conservative posters here and other for a I frequent, I don't think there will be much backlash should there be a successful prosecution. Of course there are always loudmouth idiots on all sides.

[R011]

 

 

It doesn't actually matter if he was the thief they thought he was or any kind of criminal or not They need to have seen him just commit a crime before they can arrest him. Going onto an unposted, unfenced construction site without apparently doing anything else is not a crime in Georgia.

I have seen commentary that trespassing with intent to steal is a felony in GA.

 

The two had direct knowedge of Ahmaud trespassing multiple times on the property.

It is, but they had no evidence of his intent that day nor did they see him do anything obviously illegal. I doubt he was there for any innocent reason, but even reasonable suspicion is not grounds for a citizen's arrest.

[R011]

 

 

 

 

Looks like the ex-cop forgot he was ex.

Most likely. Also what he should have done is call 9-1-1 and follow, but not engage. I suspect a conviction on manslaughter or perhaps a similar charge. Murder is too big a stretch (at least under Texas law) because you have to "Knowingly and intentionally" cause the death of a person. I have not read the Georgia murder statute, but I would be suprised if they were too different.

Shooting someone with a shotgun may meet the "'Knowingly and intentionally' cause the death of a person" test. Isn't that the idea of discharging a shot at close quarters?

That is something for the trial process to determine. As in any Common Law based jurisdiction, a judge will instruct the jury on the law and the jury will decide if they are guilty of murder or manslaughter or indeed, if they're guilty at all. There may also be a plea bargain. I would bet on a manslaughter conviction by decision or plea, but juries can be surprising.

[rmgill]

 

 

I kinda dislike the idea that DAs (or sheriffs) would be elected officials instead of civil servants. But no experience how it'd work, in bad or good, obviously.

 

That re-election thing can cause all sorts of quirks.

 

Thus, I can see reluctance of any DA to touch this case, since no matter which way it goes, they are going to lose support from one group or another. Thus lose-lose.

 

Not that I am expert of US judicial system, just my understanding of the situation.

That is exactly my thoughts about elected Sheriffs and DAs. I can almost understand it in the USian context, but it raises issues with me about upholding the law (or not upholding the law) to please the voters rather than to meet the standards of the law itself.

 

I love it in the case of Sheriff's because we are closer to the people, and any sheriff who gets too heavy handed, gets booted out. It forces Sheriff's and their deputies to be more community oriented. Police are totally insulated from the people, and therefore DGAS too often. But then again, I have worked for elected bosses for 26 years now. Do politics sometimes rear their ugly heads, yep, but in the end, we always manage to do the right thing.

 

We have several counties in Georgia where the SO is still elected but only does process service and Courthouse security/Jail work. There's a normal county PD for that stuff. They're VERY insulated from the community and my own county's PD is so disconnected that we're trying to get city hood in my area because they county PD is always 20 minutes away and doesn't

time for us.

[rmgill]

 

 

Looks like the ex-cop forgot he was ex.

Most likely. Also what he should have done is call 9-1-1 and follow, but not engage. I suspect a conviction on manslaughter or perhaps a similar charge. Murder is too big a stretch (at least under Texas law) because you have to "Knowingly and intentionally" cause the death of a person. I have not read the Georgia murder statute, but I would be suprised if they were too different.

 

Shooting someone with a shotgun may meet the "'Knowingly and intentionally' cause the death of a person" test. Isn't that the idea of discharging a shot at close quarters?

 

I think the progression is illegal/false arrest and death caused in the commission of that arrest so I think that's a line to manslaughter. He didn't set out to murder the guy, he set out to arrest them and when it turned sideways it turned out badly. If the grounds for arrest had be justified, it wouldn't have been murder or manslaughter at all, rather it would be justifiable homicide.

 

But the apparent burglary and nothing else was not a felony in his presence so that's the rub. It's a messy case.

[Jeff]

 

 

 

Looks like the ex-cop forgot he was ex.

Most likely. Also what he should have done is call 9-1-1 and follow, but not engage. I suspect a conviction on manslaughter or perhaps a similar charge. Murder is too big a stretch (at least under Texas law) because you have to "Knowingly and intentionally" cause the death of a person. I have not read the Georgia murder statute, but I would be suprised if they were too different.

 

Shooting someone with a shotgun may meet the "'Knowingly and intentionally' cause the death of a person" test. Isn't that the idea of discharging a shot at close quarters?

 

I think the progression is illegal/false arrest and death caused in the commission of that arrest so I think that's a line to manslaughter. He didn't set out to murder the guy, he set out to arrest them and when it turned sideways it turned out badly. If the grounds for arrest had be justified, it wouldn't have been murder or manslaughter at all, rather it would be justifiable homicide.

 

But the apparent burglary and nothing else was not a felony in his presence so that's the rub. It's a messy case.

 

That seems to be what I heard, no angels on either side of this one.

[rmgill]

Yeah. It's an example of poorly executed civil law enforcement.

Now, if it comes out that upon confronting the guy, which they could do, that he charged them and they fought back in defense, then it gets more sticky.

It all comes down to the details of how the confronted the person they thought was a criminal.

[Skywalkre]

Yeah. It's an example of poorly executed civil law enforcement.

 

Now, if it comes out that upon confronting the guy, which they could do, that he charged them and they fought back in defense, then it gets more sticky.

 

It all comes down to the details of how the confronted the person they thought was a criminal.

 

In the video of the altercation it appears the victim charged the guy with the shotgun... and I don't blame him. Given what we saw why are the two men who we've already covered were not within their rights to make an arrest (no felony occurred and they weren't witness to it) allowed to 'defend' themselves and the victim wasn't?

 

I honestly don't see why this is messy at all. The two arrested went far beyond what they should have, drastically escalated the situation when there were other options available, and someone is dead because of that. That's on them.

Edited May 14, 2020 by Skywalkre

[rmgill]

In the video of the altercation it appears the victim charged the guy with the shotgun... and I don't blame him. Given what we saw why are the two men who we've already covered were not within their rights to make an arrest (no felony occurred and they weren't witness to it) allowed to 'defend' themselves and the victim wasn't?

They didn't have any legal authority to tell him to stop. They can say so, they can demand, but they have no actual authority. They can't compel him to stop. The can SAY so. Just the same as they can say to bake them a cake. Georgia doesn't have a brandishing law. So, their being armed is entirely legal in that sense.

 

It all comes to the detail as to if they really tried to arrest him or not. If they didn't and they just wanted to talk, then one CAN intervene in a non-felony crime, one is however limited in one's options. The criminal can just walk or run away if they so choose.

 

I honestly don't see why this is messy at all. The two arrested went far beyond what they should have, drastically escalated the situation when there were other options available, and someone is dead because of that. That's on them.

For the sake of clarity, articulate how they escalated the situation.

 

On the flip side, articulate why the victim had a legal power to attack please.

[R011]

The victim had reasonable grounds to believe that these men had armed themselves so that they could perpetrate some sort of assault on him,like a false arrest. There was no other logical reason for them to have them in their hands. Were they actual police I suspect he would have chosen to comply or run as,BLM,not withstanding,police are generally predictable and don't shoot people in the back and don't frighten that easily. A couple of white civilians just might shoot him while running or might be more intimidated than real cops

[rmgill]

The victim had reasonable grounds to believe that these men had armed themselves so that they could perpetrate some sort of assault on him,like a false arrest.

That is A view that may be taken. And it is valid. This is where self defense law get's sticky.

 

The McMichaels ALSO have a reasonable expectation of self defense in this situation, even short of the lack of legal authority for citizens arrest.

 

Both have a reasonable expectation of self defense in this situation.

 

I'm not certain that if Aubry had just fled the scene of a crime that he has as MUCH of a presumptive right to self defense. After all, a criminal can't assault a cop who's ordering him to stop as part of a police encounter short of an arrest.

 

There was no other logical reason for them to have them in their hands.

There's no reason for them to HAVE to have one. This is Georgia. One can carry long arms without a pre-requisite. Now, if they have an expectation that they'll need a weapon for self defense from a person they reasonably believe to be a repeat criminal/burglary suspect. Apparnetly the house under construction had been repeatedly visited by the same person, at night, over multiple nights. Based on the video, it certainly COULD be seen as casing a home to commit a burglary.

 

 

Were they actual police I suspect he would have chosen to comply or run as,BLM,not withstanding,police are generally predictable and don't shoot people in the back and don't frighten that easily. A couple of white civilians just might shoot him while running or might be more intimidated than real cops

One of the aspects that criminals cite in the US as to why they don't like dealing with armed citizens is that they're MORE likely to be shot by them. It's a higher degree of risk for them.

 

Here's a set of details observed.

 

 

This is also interesting:

@https://twitter.com/DaKoolElefante/status/1259668882278629376

Edited May 14, 2020 by rmgill

[Murph]

 

 

Looks like the ex-cop forgot he was ex.

Most likely. Also what he should have done is call 9-1-1 and follow, but not engage. I suspect a conviction on manslaughter or perhaps a similar charge. Murder is too big a stretch (at least under Texas law) because you have to "Knowingly and intentionally" cause the death of a person. I have not read the Georgia murder statute, but I would be suprised if they were too different.

 

Shooting someone with a shotgun may meet the "'Knowingly and intentionally' cause the death of a person" test. Isn't that the idea of discharging a shot at close quarters?

 

Culpable mental states in Texas (very dry reading):

 

 

PENAL CODE

TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

CHAPTER 6. CULPABILITY GENERALLY

Sec. 6.01. REQUIREMENT OF VOLUNTARY ACT OR OMISSION. (a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.

(b Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

© A person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 3, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 3, Sec. 1, eff. Feb. 25, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

Sec. 6.02. REQUIREMENT OF CULPABILITY. (a) Except as provided in Subsection (b, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

(b If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

© If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b, intent, knowledge, or recklessness suffices to establish criminal responsibility.

(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

(1) intentional;

(2) knowing;

(3) reckless;

(4) criminal negligence.

(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.

(f) An offense defined by municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by Section 12.23.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2005, 79th Leg., Ch. 1219 (H.B. 970), Sec. 1, eff. September 1, 2005.

 

Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL STATES. (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

© A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

 

Sec. 6.04. CAUSATION: CONDUCT AND RESULTS. (a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

(b A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:

(1) a different offense was committed; or

(2) a different person or property was injured, harmed, or otherwise affected.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

[rmgill]

Relevant in Georgia:

 

 

 

 

2010 Georgia Code

TITLE 16 - CRIMES AND OFFENSES

CHAPTER 5 - CRIMES AGAINST THE PERSON

ARTICLE 1 - HOMICIDE

§ 16-5-1 - Murder; felony murder

O.C.G.A. 16-5-1 (2010)

16-5-1. Murder; felony murder

 

 

(a A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

 

(b Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

 

(c A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.

 

(d A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.

I would observe that we probably don't want to equate setting out to arrest someone you believe has committed a crime with intent to murder with malice.

Edited May 14, 2020 by rmgill