Report shows US police fatalities rose 13 percent in 2011 as firearms-related killings soared

By Associated Press
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One Oregon police chief was killed when a man allegedly took the officer's gun and shot him in the head. A policeman in Arizona was fatally shot when he went to a suburban Phoenix apartment complex to help a probation officer. And two South Dakota officers were killed in a shootout after a traffic stop.

The number of fatalities from departments across the country caused by firearms made 2011 one of the deadliest years in recent history for U.S. law enforcement.

Across the nation, 173 officers died in the line of duty, up 13 percent from 153 the year before, according to numbers as of Wednesday compiled by the National Law Enforcement Officers Memorial Fund.

The nonprofit group that tracks police deaths also reported that 68 federal, state and local officers were killed by gunfire in 2011, a 15 percent jump from last year when 59 were killed. It marks the first time in 14 years that firearms fatalities were higher than traffic-related deaths. The data shows that 64 officers died in traffic accidents, down from the 71 killed in 2010.

Craig Floyd, the group's chairman, blamed the rise on budget cuts to public safety departments. He cited surveys by police groups that showed many cut back on training and delay upgrading equipment, and referenced a Department of Justice report issued in October that said an estimated 10,000 police officers and sheriff's deputies have been laid off within the past year.

"I'm very troubled that these drastic budget cuts have put our officers at a grave risks," he said. "Our officers are facing a more brazen cold-blooded element and fighting a war on terror, and we're giving them less training and less equipment they need to do their jobs safely."

It's the second year in a row the number of officers killed in the line of duty has grown. In 2009, the death toll dipped to 122 in a 50-year-low that encouraged police groups even though the year seemed to be an aberration. Otherwise, the number of police deaths has topped 160 five other times since 2000. It routinely topped 200 in the 1970s.

U.S. Attorney General Eric Holder called the deaths a "devastating and unacceptable trend" and said the Justice Department was determined to reverse the numbers. He said the office is supporting new training regimens and programs, one of which reimbursed departments with more than $23 million for about 80,000 new bulletproof vests. Those vests, he said, saved the lives of 16 officers in the last year.

"I want to assure the family members and loved ones who have mourned the loss of these heroes that we are responding to this year's increased violence with renewed vigilance and will do everything within our power — and use every tool at our disposal — to keep our police officers safe," Holder said.

The police deaths were spread across 41 states and Puerto Rico. The largest number of fatalities was reported in Florida, where 14 officers were killed, followed by Texas (13) New York (11), California (10) and Georgia (10). The New York City Police Department and Puerto Rico Police Department, which both lost four officers, were the law enforcement agencies that reported the most deaths.

Meanwhile, one city saw its first ever police death in the line of duty. In Bismarck, N.D. — a city of 60,000 residents and about 100 sworn officers — 32-year police veteran Sgt. Steven Kenner was fatally shot. Kenner had been responding to a domestic disturbance call.

The number of firearms-related fatalities, which have risen 70 percent since 2008, was particularly alarming to analysts. Of the 68 deaths, 14 took place while the officer was attempting an arrest, nine occurred during a domestic disturbance call and five were ambushes, according to the data.

One of the victims, Rainier, Ore., Police Chief Ralph Painter, was shot once in the head during a Jan. 5 struggle with a suspect who was accused of taking Painter's pistol from his belt. Glendale, Ariz., Officer Brad Jones was shot in August after a fight with a suspect being sought by a probation officer. And the two officers in South Dakota, James McCandless and Nick Armstrong, were killed in August after conducting what Rapid City authorities have said was a routine traffic stop.

The glimmer of good news in the report was the falling number of traffic-related fatalities involving law enforcement officers, the lowest since 2005. Floyd said revamped policies adopted by some departments on police chases and a revived focus on road safety helped bring down the number of those deaths.

"It's perhaps the most preventable death for law enforcement," he said. "Better training and better awareness of the dangers of traffic safety will help to spare more police lives as we move forward."

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Jesse White Announces Two Key Traffic Safety Laws to Take Effect January 1

Aledo, Ill. —

Two important pieces of legislation supported this year by Secretary of State Jesse White will take effect as new laws January 1st and include measures that improve school bus safety as well as increase safety belt usage.

    Public Act 97-0466 allows a school bus company that has a reasonable suspicion to believe that their school bus driver is under the influence of alcohol or drugs to require the driver to submit to alcohol and drug testing before driving a school bus.  The Secretary of State's office will then suspend for three years the school bus permit of a driver who refuses to submit to a test or fails to obtain a zero tolerance for the presence of alcohol, drugs or intoxicating compounds. 

    "It is unconscionable that anyone would ever endanger the lives of school children by consuming alcohol or drugs prior to driving their school bus route," said White.  "This law ensures that any such school bus driver's permit will be suspended by my office for three years."

    Public Act 97-0016 requires safety belt use for all backseat passengers.  Prior to this change, only front seat passengers were required to where a safety belt under the state's primary safety belt law.

    "Safety belts have proven to be effective at reducing the severity of injuries and saving lives in automobile crashes," said White.  "These two new laws will make the roads safer for all of us.  I want to thank Governor Pat Quinn and the General Assembly for their assistance in addressing these important traffic safety issues."

For more information on these matters,please call our office at 305 548 5020.
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Backing down on buggery? Some personal rights can be sacrificed for general morality

 

Byron Buckley, Contributor 

THE RECENT political leadership debate has given new legs to the national discussion on the repeal or retention of the law against buggery.

Opposition Leader Portia Simpson Miller has proposed a review of the law, with legislators allowed to vote according to conscience, after consultations with constituents. Prime Minister Andrew Holness has indicated his willingness to reflect the views of the people or the status quo on the contentious law.

A review of the buggery law is timely and appropriate in light of the recent pressure from several of Jamaica's bilateral and multilateral partners to relax the provision. Our 50th year of Independence is a good point at which our society should pause and take stock of our cultural norms, values and mores; and, where appropriate, shed, reinforce or improve them.

The issues, from a jurisprudential perspective, include:

• PRIVACY: the right of individuals to behave as they choose in the confines of their homes. Added to this is the notion of consensual behaviour.
• MORALITY: Should or shouldn't the law be based on morality? And whose morality - private or public?
• PRIVATE VS PUBLIC INTEREST: Where do we draw the line? How do we strike a balance?

There is a growing number of Jamaicans across the moral spectrum who are prepared to turn a blind eye to consenting adults - heterosexuals and homosexuals - engaging in consensual anal sex in the privacy of their homes. This view points to nascent support for the decriminalisation of buggery. As we review the buggery law, we must ask ourselves if freedom of consent and the right to privacy are sufficient grounds on which to repeal a law or decriminalise an act.

The Wolfendem Committee on Homosexual Offences and Prostitution in 1957 restated that: "It is not ... the function of the law to intervene into the private lives of citizens, or to seek to enforce any particular pattern of behaviour ... ."

However, the United Kingdom Privy Council denied an appeal by homosexual men who asserted that they had the right to engage in sadomasochist sexual behaviour involving the inflicting of pain. Their argument was based, inter alia, on Article 8 of the European Convention on Human Rights, which states that "everyone has the right to respect for his private and family life, his home and correspondence".

But in his ruling in the case (R. v Brown) Lord Templeman pointed out that:

"Society is entitled and bound to protect itself from the cult of violence. Pleasure derived from the infliction of pain is an evil thing." The court found the appellants guilty of acts occasioning bodily harm, although the victim had consented to the acts inflicted on him. The import of the ruling is that the law does have a reach into the bedroom if acts deemed criminal - even if consensual - are being committed. And in this case, bodily harm and pain were being inflicted.

So as our legislators and the society consider reviewing the buggery law, we must determine whether the act of anal sex is injurious to a person and, therefore, should be criminalised or decriminalised.

The weakness of the consent-and-privacy argument is illustrated by the following scenario. While it is legal for a man to have consensual sex with his neighbour's sister, mother and daughter in the privacy of his home, it would be illegal for him to do the same with HIS mother, sister and daughter. Even if they consented, he would be guilty of the crime of incest.

Moral foundation

Why are these behaviours - incest, buggery, sadomasochist sex - considered crimes? Why does the law have to regulate these actions? One view is that laws usually rest on a moral foundation that is shared and agreed to by the society. As Lord Devlin, in his essay on 'Enforcement and Morality', has pointed out, there is a public morality that is critical to keeping society together; and that society may use the criminal law to preserve morality that is considered essential to the society's existence. For example, some persons fear that relaxing the buggery law will promote homosexuality, which they consider inimical to family life and procreation.

Society, Lord Devlin, argued, is "held together by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price."

So the Jamaican society, I contend, must decide what's the price or trade-off in relaxing or retaining the buggery law.

According to Devlin, society has a prima facie right to legislate against immorality and society may use the law to preserve morality in the same way as it uses it to "safeguard anything else that is essential to its existence".

Some people argue that since the crime of buggery is not being prosecuted in the main, what purpose does the law serve? Why not repeal it along with the anti-marijuana law, especially in the case of the latter where there is constant violation?

It should be noted that even though a law might be frequently violated, it serves the purpose of establishing a standard of behaviour. For example, road traffic laws, despite frequent violation, are still enforced so as to restrain breaches and promote behaviour the society has agreed on.

In addition, the traffic laws remain despite frequent flouting by motorists because they and other laws prescribe behavioural standards as societal ideals.

Devlin argues that there can be no theoretical limits to the power of the state to legislate against what it considers as immorality, as it is believed there is no theoretical limits to the power of the state to legislate against treason and sedition.

"We may argue," notes Devlin, "that if a man's sins affect only himself, it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is any one except himself the worse for it? But if half of the population gets drunk every night, what sort of society would it be? You cannot set a theoretical limit for drunkenness before society is entitled to legislate against the practice."

Adds Devlin: "Immorality then, for the purpose of the law, is what every right-minded person is presumed to consider to be immoral. Any immorality is capable of affecting society injuriously and, in effect, to a greater or lesser extent it usually does; this is what gives the law its locus standi. It cannot be shut out. But ... the individual has a locus standi too; he cannot be expected to surrender to the judgement of society the whole conduct of his life."

The debate over the repeal/retention of the law against buggery raises the old and familiar question of striking a balance between the rights and interests of society and those of the individual. The rights of each must be restricted to ensure, as far as possible, that the essential needs of each are protected. While the development of criminal law mainly subjugates the rights of the individual to the interests of society, going forward the guiding principle should be the toleration of the maximum individual freedom that is consistent with the integrity of society.

Byron Buckley is an associate editor at The Gleaner. The views expressed in this article do not necessarily reflect the views of this newspaper. Email feedback to columns@gleanerjm.com and byron.buckley@gleanerjm.com.

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Penn State Sex Abuse Scandal Rocks Families, Institutions, Laws

 BY ART BUONO

In a case with echoes of the Catholic Church sex abuse scandal, Penn State University and indeed the State of Pennsylvania face horrific charges of ignoring the sexual abuse of eight children at the hands of former Penn State football defensive coordinator Jerry Sandusky.

 
• Penn State sex abuse scandal shakes youth sports foundations, icons
• Governmental immunity stands between victims and civil redress
• Institutional reform needed to protect vulnerable kids

 

The fallout spiked overnight with the firing of Penn State's iconic football head coach Joe Paterno and President Graham Spanier. Word of Paterno's firing sparked chaos on campus, with students rampaging in protest and clashing with police.

Despicable Crimes by Youth Mentor

Sandusky, 67, was arrested last Saturday on charges of sexually abusing eight boys over a 15-year period. He retired from coaching in 1999, but continued to have access to the Nittnany Lions' athletic facilities after that, in part for his charitable program, Second Mile Foundation. He's alleged to have molested boys there both during his coaching career and after his retirement. Rumors have now surfaced that Sandusky also "pimped out" boys to wealthy donors.

The victims have testified that Sandusky befriended them through Second Mile. According to reports, he mentored the boys and gave them gifts and access to sporting events and the Penn State football facilities. Having gained their trust, he then sexually assaulted them. The mother of one of the boys Sandusky allegedly molested says that Sandusky confessed his crime to her.

Officials Ignored Evidence, Failed to Stop Abuse

Penn State's response – or lack of one – to the crimes has come under intense criticism. In 2002, President Spanier was told that a graduate assistant to the team saw Sandusky sexually assault a young boy in a shower in the team's football locker room.

Athletic director Tim Curley and vice president Gary Schultz face charges they covered up the scandal. They've been charged with perjury and failure to report to authorities what they knew of the allegations, as required by state law.

Paterno himself has reportedly admitted that information about Sandusky's behavior reached him in 2002 and that he believed in the truth of the allegations. Though he sought to forestall action against him by announcing he would retire at year's end, University Trustees fired him nevertheless.

Besides the tragic exploitation and harm suffered by these adolescents, the case surfaces two recurring and seemingly intractable problems. First is the failure of institutional response and coverup. Large, powerful institutions like the University and the Catholic Church refuse to accept accountability for these acts when they first surface and indeed obstruct justice, civil and criminal, time and time again. In this case the emerging facts show that the highest ranking athletic and university officials were informed of Sandusky's crimes yet did little or nothing about them, or to prevent them from recurring. This, in fact, enabled Sandusky.

The second problem is the lack of accountability to the victims on the part of anyone who can possibly begin to compensate them for their injuries. Although the individual actors – from Sandusky to those who knew of his acts but did nothing to stop them – may be liable civilly to the victims, the University itself and indeed the State it serves is not. Let's look at this problem immediately.

Civil Immunity for the One Entity Capable of Making Redress

The "State, and the University as a state entity, have sovereign immunity," says noted attorney Norm Pattis, who's represented sex crimes defendants and prosecuted civil claims on behalf of sex abuse victims, and who's written about it separately on his blog. "Unless they waive this immunity and consent to be sued there's nothing these victims can do about it."

Pennsylvania's Sovereign Immunity Act is typical of laws in every state shielding the government from monetary claims of people who've been injured by the state's employees, officers and agents. The Act has certain exceptions, most notably for harm caused by the operation of motor vehicles. But none of these exceptions includes the intentional or even forcible sodomy of a young boy by a Penn State coach in a Penn State locker room.

If you read the exceptions, you may grasp a truly sick and perverted irony. The law provides exception for harm caused in the

Care, custody or control of animals in the possession or control of a Commonwealth party, including police dogs and horses

So if Coach Sandusky forcibly rapes a young boy entrusted to his care, that boy can't sue the state. If Coach Sandusky bestially rapes that young boy's horse, the boy can sue the state – for harm to the horse.

The concept of sovereign immunity has been criticized before. Pattis is reminded of constitutional law scholar Erwin Chemerinsky's remark about sovereign immunity as it pertains to the United States: "this is a republic, not a monarchy. There's no room for sovereign immunity in a republic."

Pattis has suggested the University set aside $100 million from its endowment to settle the claims of these boys, and the claims of others that will undoubtedly surface now that the story has broken. That's certainly the stand-up thing to do.

It's been suggested already though that the University and State could be liable under the Sovereign Immunity Act's exception for dangerous conditions existing on state real estate. In this view, Sandusky would be the "dangerous condition," although typically these conditions are more commonly things like malfunctioning elevators, construction hazards, and the like.

Penn State Football Program Among Most Profitable

In this context it's worth pointing out something else. College football, as it exists at the NCAA Division I level, bears more resemblance to a huge, lucrative industry than a system for educating student athletes. According to a CNN.com report, college football earned over $1 billion in 2010. Penn State had the third-highest income – profit, not revenue – of any school, taking down just over $50 million.

The schools are well aware how much they resemble for-profit enterprises. The NCAA has gone to great lengths to ensure that college athletes don't qualify under the law for workers' compensation for injuries they sustain in these programs, despite the obvious economic value the players confer on the schools.

This is all relevant because of a wrinkle in the traditional concept of immunity, at least as it applied to cities and counties. Those political subdivisions generally had immunity only for "governmental functions." These are the things cities and counties do that are necessary to governance. They did not have immunity for "proprietary functions." These are business-like things they choose to do. Proprietary functions share three characteristics:

1. the activity is one that government is not statutorily required to perform
2. the activity also may be carried on by private enterprise
3. the activity is used as a means of raising revenue

That describes college football as run by public universities.

Institutional Concerns: "Money, Reputation, Image" – Not Youths

It remains a mystery that many large, powerful institutions have difficulty facing up to these problems and taking quick and effective action to stop them. The Catholic Church knew of its many "problem priests," sometimes for decades, yet failed to deter them or acknowledge the problems publicly. It can be the same in large, secular organizations.

California attorney Robert Allard represents victims in a strikingly similar matter. Allegations surfaced in 2009 of sexual abuse and molestation of kids enrolled in swimming programs certified by USA Swimming (USAS), the National Governing Body for the sport of swimming in the United States. According to Allard, the abuse of young athletes by coaches of member swim clubs has turned out to be widespread, enduring and ineffectively addressed by the national organization.

For institutions like these, Allard says, "what it comes down to is money, reputation, and image. They refuse to acknowledge any wrongdoing for which they may be held accountable. They're afraid of losing sponsorships and revenue from corporate partners."

And there is more to it. "The USAS itself has said its mission is to win gold medals," Allard notes. "The safety and welfare of the kids in the programs comes way down on the list."

According to Allard, the problem of abuse in this sport is not new. He points out that in the early 1990s, USA Swimming resisted Olympic Gold Medalist David Berkoff's proposals to form an internal unit to deal with the issue of abusive, exploitive coaches and staff. As a result, Allard claims, many more kids suffered the harm and indignity of this criminal behavior.

Berkoff, who is an attorney, a swim coach, and a member of USAS' Board of Directors, responded to an email request by stating, in part, "in the last year USAS enacted what I believe are the most ground-breaking athlete protection policies for any sports governing body. We came back to our House of Delegates this year to make even more positive changes that address bullying and on-line behavior. I am very pleased that USAS has moved rapidly in passing these new rules and guidelines and the support for this new legislation by our membership is overwhelming."

Berkoff also noted he's a native Pennsylvanian, and is "ashamed" of the inaction of Penn State officials despite their awareness of Sandusky's conduct.

The defensive response of institutions, given that young lives are at stake, is reprehensible. It's also confounding given the nature of pedophilia and sexual predators. Dr. John Mayer is a psychologist and an expert on teens and families. He notes that pedophiles and sexual predators are serial offenders, and this characteristic is generally widely understood among the general public. It must also be grasped by the leaders of youth organizations like football and swim programs. It should also not escape these leaders that pedophiles are drawn to where kids are.

Mayer notes the commonality of factors where these crimes are perpetrated across all organizations. "Under the veil of a revered institution, the perpetrators prey on vulnerable youth, often at-risk children, using goodwill and often religious intentions and power to grant or withhold rewards to enslave young people to submit to sexual depravity. This is an old formula that works for sexual predators."

Mayer also observes the distressing commonality of institutional response. "The response of the perpetrators' superiors to reports of impropriety follow the same pattern of action that appears to be the response of the Penn State authorities: sweep it under the rug and move on like business as usual."

Mayer's son Justin has established the Center for Ethical Youth Coaching to address the stunning failures in this sphere. According to Justin Mayer, youth coaching is subject to little or no regulation at any level. He hopes programs will adopt a certification system that will ensure the integrity of the coaches and staff who have such intimate and powerful influence over our young and vulnerable children.

For more information on these matters, please call our office at 305 548 5020.

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In Surprise Ruling, Court Says Police Can’t Use Evidence from an Illegal Traffic Stop

BY ART BUONO

The Pennsylvania Supreme Court ruled this month that if the police have no probable cause to stop a driver, they can't use anything they find in the car against you — even if you stupidly okayed the search.

 

• Drivers may refuse to let police officers to search their vehicles after a traffic stop
• Cops can't look into glove box, trunk or closed container in the car without probable cause
• Drug convictions overturned for lack of probable cause

 

The Wilkes-Barre police received a very specific tip in January 2008: To look out for a "van being operated by a white female with red hair and a black male passenger with a yellow Tweety Bird air freshener hanging from the rearview mirror that had traveled from Wilkes-Barre to Philadelphia for the purposes of transporting . . . marijuana and cocaine back to Wilkes-Barre for resale."

 

Police Officer Thomas Kaluzny spotted the van on a highway and observed it exiting to Wilkes-Barre without using a turn signal. He continued to follow, and claimed to observe suspicious behavior in the form of a second black man in the back seat ducking his head and moving around the seat as well as "a lot of movement from the front passenger."

Kaluzny pulled the van over, asked for and received permission from driver Sandra Hutz to search the vehicle without explaining why he had stopped her. On searching the van, Kaluzny found 12 grams of cocaine, 20 grams of marijuana and 3 grams of PCP. Hutz as well as passengers Troy Corley and Darryl Taylor were arrested on the spot.

Hutz pleaded guilty. However, the two men fought the drug charges, were found guilty and were sentence to prison — Corley for 84 to 168 months, and Taylor for 48 to 96 months. They both appealed and last year the Pennsylvania Superior Court overturned their convictions in separate rulings. The Supreme Court ruling this month affirmed the Superior Court's decision, and prosecutors said they will no longer pursue charges.

Officers Lacked Probable Cause To Stop Vehicle

The court ruled that anonymous tips are not sufficient evidence for police to stop a vehicle:

• Unless the tip contains specific information about the suspect's future actions that could not be ordinarily predicted about a driver carrying out day-to-day affairs. Though the tip described the van in question down to the Tweety Bird hanging from the mirror, it wasn't sufficient for reasonable cause because Hutz lives in Wilkes-Barre and could reasonably be expected to travel home whether or not engaged in any criminal activity.
• Nor was the turn signal violation sufficient cause because Kaluzny had already called for backup before he witnessed the vehicle exiting the highway. "In short, the traffic violation played no actual role in the decision of Officer Kaluzny to stop and detain the Hutz vehicle that night," the judges ruled.

The court didn't comment on the nature of the drug search, because they already determined the stop itself was unwarranted.

 

When Can a Police Officer Search Your Vehicle?

The ruling was surprising to some observers, because traffic stops are frequently used by police as precursors to drug possession charges. But reasonable cause laws can be nuanced, says Philadelphia attorney David Crosson of Crosson Law Office.

"It's a sketchy little area," he says. In general, Crosson says he would advise motorists to refuse permission for police to search their vehicles in the first place. "My general advice is to refuse it," he says. "Refuse the search and tell the cop that you want your attorney. Don't make any sudden movements and be polite. Make the cops find probable cause."

In general, drivers have the right to refuse permission to police officers to search their vehicles after a traffic stop. "A cop would only have the right to search the car if there's something in plain sight or an officer has a suspicion that a criminal act is occurring. For example, smoke coming out of an ashtray that smells of marijuana, or something in plain sight like a weapon or some drugs," Crosson says.

 

If officers initiate a search based on reasonable suspicion, they still are not permitted to look into closed or locked areas like a glove box, trunk or closed container within the car without a specific probable cause. Open, out of sight areas such as under a mat or a seat, however, are fair game. Police also have the right to peer into open bags or purses, but cannot rummage through them without consent or probable cause.

Officers do generally have the option to bring in a drug dog at their discretion, which can provide probable cause to search both the vehicle and locked areas within the vehicle if it smells contraband.

Hutz made it easy for the officer to find the drugs by giving him the go-ahead to search her van.

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Woman’s Win in Court Provides Lessons on False Arrest Claims

BY KEITH ECKER

A federal jury awarded a former Illinois resident more than $500,000 on Nov. 18 in a case that stemmed from allegations of false arrest and harassment by Westmont, Ill. police. In February 2007, Dawn Zitzka accused six police officers of abusing their power by bringing four false charges against her in 2005. The charges were made after Zitzka had publicly denounced the Westmont Police Department in 2004 for what she felt was an inadequate investigation of a sexual assault.

 

 
• Illinois woman successfully sues police for wrongful arrest.
• Plaintiff previously criticized police for the handling of a sexual assault investigation.
• Low standards for probable cause make false arrest claims are hard to prove.

 

 

Crime and Punishment

In June 2005, Zitzka was arrested on four different charges by the Westmont officers.The court found her not guilty on the charges ofdefacement and disorderly conduct. Meanwhile, charges were dropped without a trial on the accusations of telephone
harassment and trespass.

When prosecutors dropped the charges against Zitzka two years later, the wrongly accused woman filed a lawsuit against the Village of Westmont and the six police officers. The trial lasted eight days and included more than 20 witnesses. In the end, the jury found that only one police officer, James Schlicher, was liable and ordered him to pay $530,000 plus attorneys fees.

"This has been a long and emotional ordeal for Mrs. Zitzka and her family, and we are very pleased with the jury's verdict," said Kim K. Thompson, one of the lawyers who represented Zitzka and a partner at McJessy, Ching & Thompson. "We are proud to have been able to help the Zitzka family in what we consider to be an important First Amendment case. Hopefully this case will remind government officials of the rights guaranteed to all of our citizens at the founding of this great country."

Westmont Chief of Police Thomas Mulhearn issued a prepared statement after the jury's decision.

"We are gratified that the jury found allegations against five Westmont police officers to be without merit," said Mulhearn. "However, we are very disappointed that the jury entered an award against one officer, but we respect their decision."

A Difficult Defense

To assert the claim of false arrest, Zitzka and her attorneys relied on section 1983 of the U.S. Code.

"This section of the U.S. Code, which applies to the states through the 14th Amendment, gives citizens the opportunity to sue the police for such things as false arrest and excessive use of force," says attorney Jonathan Little ofSaeed & Little. "It awards attorneys fees if you prevail, though if you lose you could be on the hook for attorneys fees as well."

Little, who has worked on a number of false arrest cases himself, says that proving a claim of false arrest is no easy task thanks to the low threshold of proof needed to establishprobable cause.

"You either need no determination of probable cause or a determination that there was no probable cause," Little says. "Probable cause has an extremely low standard, so practically speaking, it is not difficult for police to establish probable cause to arrest you."

However, if there are clear indications that the police have acted wrongfully, such as in the case of Zitzka, a judge may determine that there is insufficient evidence to support probable cause. Still, Little recommends refraining from jumping the gun on making allegations of false arrest.

"You want to be very careful when you raise the issue of false arrest," Little says. "In general, you will want to wait until some evidence gathering has been done. However, if you are in custody or are threatened with being deported, you may want to challenge probable cause in advance."

To strengthen your unlawful arrest claim, Little recommends that the accused immediately exercise their right to remain silent.

"Say nothing," says Little. "If you are talking to the police, all you can do is make things worse."

Next, you should hire a criminal defense attorney to represent you in your criminal case. Ask your attorney about the statute of limitations for bringing a civil claim against the police in your jurisdiction. Some states have very strict time limits. If your criminal defense attorney is not knowledgeable about civil law, search for a civil rights lawyer who does section 1983 work, or contact the American Civil Liberties Union, which has the resources to file the proper notifications with the state.

For more information on these matters, please call our office at 305 548 5020.

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Peeping Landlord Attempts to Withhold Hidden Camera Evidence

BY KEITH ECKER

Earlier this year, two women students were eager to leave Bulgaria for the summer and visit the U.S. They went through an agency to find employment and obtain the proper work visas. Meanwhile, a cafe operator in Tampa, Fla. was in search of new staff. He took the unorthodox approach of contacting the two women – Ralitsa Dzhambazova and Vanya Samokovareva – through Skype and Facebook prior to employing them at his eatery and providing them with an apartment. By May 28, when the students arrived in Tampa, they had jobs and a place to live. Everything was falling into place.

• Foreign students accuse landlord of illegally bugging their apartment.
• Landlord asserts Fifth Amendment right to attempt to block request for electronic evidence.
• Legal experts believe Punjani's objection may hurt his civil case.

But then, in July, the co-eds made a terrible discovery. Concealed
within a smoke detector in their apartment was a hidden camera. After discovering several more, the women immediately disconnected the cameras and filed a police report. Now, they are suing their former landlord and employer, Nadir Punjani, for the humiliation, embarrassment, anxiety, stress and pain his actions have caused them.

But the peeping landlord has plenty of chutzpah. After the court ordered him to preserve and turn over any computers, laptops, cell phones and servers in his possession, he attempted to assert his Fifth Amendmentright as a means to legally refuse to comply with the order!

Bulgarians, Lies and Videotape

When the police arrived on July 25, the officers observed what appeared to be covert cameras throughout the apartment. Wires from the cameras ran under the carpet and into a secured central closet in the living room. The students believe that the next day, Punjani arrived on the scene and, without permission, entered the premises to remove incriminating electronic equipment that he was storing in the locked closet.

"It is our position that Punjani went in and didn't have time to rip out the cameras and instead took the server out of the locked closet," says Mark H. Wright, an attorney at Jayson Farthing Skafidas Wright who is representing the students. "The police have no evidence he was recording."

The fact that there is no hard evidence of audio or video recording is significant. Currently, the crime that the landlord committed would only be considered a misdemeanor in Florida. But if there is evidence that audio recording took place, the crime would be bumped up to a felony. To date, the police have closed their investigation, and the two students have not yet filed criminal charges.

"The law has never changed with technology," Wright says. "In the old days, if some pervert is in the mall, leans over and takes a picture, I understand how that could be a misdemeanor. But it makes no sense that this guy can put cameras in these women's bedrooms and bathroom and get away with just a misdemeanor."

Pleading the Fifth in a Civil Case

Presumably in an effort to sidestep felony charges, Punjani has attempted to keep all hardware associated with the voyeurism incident out of the civil case. That is why, on Nov. 8, he and his counsel filed an objection to the order that he turn over for inspection his computers, laptop, iPhone, server, router and Wi-Fi box, citing the Fifth Amendment — which states that no person "shall be compelled in any criminal case to be a witness against himself."

When an individual "pleads the Fifth" in a criminal case, the jury cannot presume that you are hiding something. However, this is not so in a civil case.

"This guy is trying to avoid any admission that he has materials that show he recorded off these surveillance cameras as well as to avoid saying anything about those materials," says Christopher Balch, an attorney at the Balch Law Group in Atlanta. "And in either case, in a civil trial, he is not going to get the presumption of innocence you are usually going to get in a criminal case. So even if he doesn't have to produce this evidence, the jury may be given the instruction to presume there is bad stuff there, which is known as negative inference."

Wright says that he believes Punjani may be able to successfully refrain from testifying about the electronic equipment, but he does not believe the landlord has the right to refrain from producing the equipment.

"Assuming the police serve a search warrant on your house and they want to pull all your computers and electronics, can you assert the Fifth Amendment to prevent them from doing this? No," Wright says. "However, you can assert the Fifth as to questions about that stuff. If Punjani does this successfully, I will make the argument to get the court to provide the jury with a negative inference instruction."

For more information on these matters, please call our office at 305 548 5020.

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Stoned or Drunk, Driving Isn’t an Option

BY DAVID BAARLAER

A recent study shows that medical-use marijuana may be making our roads and highways safer. Whether that's true or not we may never know, and, at least from a legal standpoint, it really doesn't matter.

• A new study shows a decline in traffic-relate deaths in states withlegalized marijuana
• No matter your opinion on whether pot should or shouldn't be legal, driving while high is just as illegal as driving while drunk
• Penalties for a marijuana DUI may be harsher than for an alcohol-related DUI

Pot Makes the Road Safer?

Researchers just came out with one of those studies that make you scratch your head and say, "What?" According to them, there has been a drastic decrease in traffic-related deaths in states where marijuana is legal to smoke. Specifically, they found that, on average, there was about a 9 percent drop in these deaths in the states allowing medical marijuana.

The intriguing question is, "Why?" No one knows the answer, of course. According Daniel Rees, one of the researchers on the study, some speculate that it's "safer to drive under the influence of marijuana" than it is to drive drunk. Drivers high on marijuana, he explains, "drive slower and don't take as many risks" as drunk drivers.

Another possible reason, according to Rees, is that marijuana smokers "don't go out as much" as those who drink alcohol. So, getting stoned at home or at a friend's house and staying put leads to fewer traffic accidents. That's a littler more plausible than the "marijuana's safer" theory, don't you think?

The "stay-at-home" theory also jives with a recent CDC report showing a drastic decrease in alcohol-DUI incidents, even though people aren't necessarily drinking less. The decrease, it's surmised, is because people are drinking at or near their homes and removing the risks of DUIs.

"Why?" Doesn't Really Matter, Legally Speaking

Whether stoned or drunk, you run the risk of getting a DUI/DWI, plain and simple. In practically every state, "under the influence" or "while intoxicated" covers more than alcohol. These phrases cover:

1. Legal drugs, including prescription medications and marijuana (in states where it's legal to use)
2. Illegal drugs, such as heroine, methamphetamine and scores of other controlled substances

A Little or A Lot, Pot Can Get You Grounded

Some states, like Michigan and Utah, have zero tolerance laws, meaning drivers with any detectable trace of marijuana in their systems may face DUI charges. No ifs, ands or buts.

In some of these states, medical marijuana is excluded. So, for example, in Arizona and a few other states with zero tolerance laws, authorized medical marijuana users may drive after smoking marijuana and avoid the zero tolerance law. But, if the marijuana has made them "impaired" to the point they can't operate their cars safely, they may still face DUI or other charges, like reckless driving

A few states, such as Ohio, set a limit on how much marijuana may be present in any driver's blood or urine, similar to the blood alcohol content (BAC) used for alcohol-related DUI cases. Again,  in states like this, drivers who are legally allowed to use medical marijuana may still face DUI charges if they exceed the legal limit, though.

The take away is this: You can face DUI and other charges for driving stoned, even if you're legally allowed to use marijuana.

Driving Stoned May Be Worse (Legally) than Driving Drunk

Marijuana-related DUIs present special legal problems, for both the driver and the prosecution. Jon Katz, a criminal defense lawyer practicing in Maryland, Virginia and Washington, DC., explains that, "Proving driving under the influence of marijuana is difficult. Marijuana can stay in the bloodstream for several weeks. Marijuana's presence in the blood does not prove recent use of marijuana nor driving under the influence of marijuana."

So, say you smoke a joint on Sunday. Driving home from work that next Tuesday, you reach to answer your cell phone and weave your car. An officer pulls you over for erratic driving. Right or wrong, he thinks he smells pot in your car or on your clothing, or thinks he sees a remnant of joint in your ashtray . The next thing you know you're under arrest for DUI, even though you weren't high at the time you were pulled over.

It's time to call a good attorney. On top of the proof issues to deal with, says Mr. Katz, you have "Fourth Amendment rights against unreasonable stops and searches and seizures," that may have been violated, lowering the chances of a conviction.

Your Troubles Are Compounded

Penalties for a typical alcohol-related DUI conviction may include a fine, maybe a few days in jail, and more likely than not, suspension of your driver's license or restricted driving privileges. Generally, the same is true for a marijuana-related DUI, plus some possible extras.

For example, in states where medical marijuana isn't legal, drivers with marijuana in their systems or in their cars likely will face criminal charges for possessing and/or using marijuana.

Even in states where medical marijuana is legal, drivers may face drug-related charges depending on how much marijuana they have in their possession. For instance, under California's law, authorized users may possess the amount of marijuana "reasonably related" to their "current medical needs." A driver may have trouble convincing the police, prosecutors and a jury that the one-pound bag of pot in his car was "reasonably related" to his medical needs! A large amount of drugs, including marijuana, is often used by prosecutors as evidence or proof of the intent to sell or distribute the drugs, which usually carries a much stiffer criminal sentence.

The Best Choice? Neither!

Given the choice between driving drunk and driving stoned, the decision should be obvious: Don't do either! Avoid the legal problems and get a designated driver, call a cab or find some place to sleep it off.

If you find yourself behind the wheel after drinking or smoking a little bit, and you honestly think you're capable of driving safely, you can take steps to avoid trouble:

1. Drive within the speed limit
2. Don't drive distracted. Texting or talking on the phone may cause you to drive erratically
3. Know what to do and how to handle yourself if you're pulled over
4. Call an attorney as soon as possible if you're arrested for DUI

For more information on these matters, please call our office at 305 548 5020.

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