Posts Tagged ‘Fourth Amendment’

Last week, the Department of Justice released its report about the Albuquerque Police Department’s use of force practices, which have been much in the news lately.

Last month, APD officers shot and killed James Boyd, a mentally ill man who was involved in a standoff  with officers that was captured on one officer’s helmet cam. Video of that shooting has sparked considerable controversy about the APD’s apparent tendency toward using excessive force, even against people who posed little or no direct threat to officers.

Video: APD releases HelmetCam footage of shooting

The DOJ’s investigation, initiated in 2012, takes a broader look at the department’s overall practices. Its conclusions are direct, damning, and represent just the type of straight talk and analysis necessary to begin the process of bringing APD into compliance with the law and with the best interests of New Mexico citizens.

As it turns out, concerns about the Boyd shooting may just be the tip of the iceberg in terms of improper use of deadly force by APD officers. According to the DOJ report (PDF):

Albuquerque police officers too often use deadly force in an unconstitutional manner in their use of firearms. To illustrate, of the 20 officer-involved shootings resulting in fatalities from 2009 to 2012, we concluded that a majority of these shootings were unconstitutional. Albuquerque police officers often use deadly force in circumstances where there is no imminent threat of death or serious bodily harm to officers or others. Instead, officers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force. (emphasis added)

The use of less-than-lethal force by APD officers was little better. According to the report, officer misconduct in this area represented a pattern of abuse that was described as “systemic.”  A lack of effective training, policy development, and appropriate oversight all contributed to incidents of improper use of force in a wide range of situations, including against those involving mentally ill suspects and defendants.

Justice Dept. accuses Albuquerque PD of ‘unjustified force’

In their overall summary of findings regarding the APD, the DOJ had this to say:

We have reasonable cause to believe that officers of the Albuquerque Police Department engage in a pattern or practice of use of excessive force, including unreasonable deadly force, in violation of the Fourth Amendment….

The report provides a number of examples in support of its claim that excessive force was used by APD officers. Many of these involved the use of Tasers and other less-than-lethal weapons that were deployed in ways that were improper, harmful, and unnecessary.

For example, one case involved a 60-year-old man, initially armed with a knife, who had made a threat against another man while intoxicated. The APD sent 47 officers to the scene, shot the man with five “bean bag” rounds, launched a flash bang grenade at him, shot him with a wooden baton round, deployed a police canine against him, then tased him repeatedly until he collapsed.  All of that happened after he had dropped the knife.

A judge, who later reviewed the case, wrote that:

“…no reasonable person could believe that an inhibited, slow-moving, 60-year-old individual, who made no physical or verbal threats, and wielded no weapons, could constitute a threat to the safety of any of the forty-seven armed and shielded police officers who stood over twenty feet away.”

In another incident detailed in the report, officers tased and physically assaulted a mentally disabled man who was literally incapable, due to his disability, of complying with APD officer’s commands. As it turned out, the man had wandered away from a group home where he had been living. He had the mental capacity of a five-year-old child.

APD officers also tased and assaulted individuals who were incapacitated due to a drug overdose, or who were so intoxicated that they were proned out on a couch unable to move, or so mentally ill that they were not capable of rational thinking or decision making. In one case, officers were called simply to check on the welfare of a mentally ill young man, who had done nothing illegal, and ended up kicking, choking, and arresting him after he declined their attempts to interact with him, which he had every right to do.

DOJ Investigates APD

Example after example makes clear that the APD is not a police force in any sense, but an aggressive, out-of-control, occupying force bent on imposing its will on the citizenry, even upon the law-abiding citizens in their jurisdiction. The DOJ report goes on to document factors, such as the lack of effective training for officers, a lack of oversight by supervisors and other leaders in the organization, failure to properly document use of force incidents, including very serious ones, such as shootings – all of which contributed to a culture of violence and illegality in the APD.

As part of the background for this report, the DOJ offered up this succinct statement that summarizes my personal feelings about policing in general:

A well-functioning police department has the trust of the residents it protects, functions as a part of the community rather than insulated from it, and cultivates legitimacy when the public views it as engaging with them fairly and respecting the rule of law.

Police departments are not separate from the communities they serve. They do not exist to control the population. Police departments are integral elements of community life that exist for the sole purposes of protecting and serving the citizenry. They are under the direct control of duly elected representatives, and they are fully accountable to the community and anyone who visits or travels there.


The DOJ report provides a starting place for rectifying the deep and systemic flaws in the APD.  It also serves as an object lesson for police departments everywhere that wish to avoid descending into the type of embarrassingly autocratic, overly aggressive, and flagrantly illegal behavior demonstrated by the APD.

Read the full report for yourself here, and leave a comment below.

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Think you’re having a bad week? Well, cheer up. Whatever’s bugging you is probably not nearly as bad as what happened the night in 2010 when Felix Booker was pulled over by police while riding in a car with expired plates and ended up being temporarily paralyzed by an ER doc so he could perform a non-consensual rectal exam.

Yeah, that really happened.

Image courtesy of Salvatore Vuono /

Image courtesy of Salvatore Vuono /

A PDF of the full ruling on the case by the Sixth Circuit Court of Appeals is available for your reading enjoyment (and it is pretty entertaining disturbing), but here’s the case in a nutshell: The police pulled over the car, developed information that poor Felix had stashed narcotics in his rectum, and eventually transported him to the hospital for treatment by an emergency room doctor.

Here’s the doctor’s testimony about what happened next:

A: I told him that I needed to do a rectal exam. I asked him if I could do so. Initially he said, no. I explained to him that at this point in the Emergency Room he really did not have a choice because if my suspicion was high enough to think that he had some sort of dangerous substance in his rectum, then it was my duty to get it out. And that we could do it a number of different ways. I told him that I would prefer if he cooperated and allow me to do the rectal exam, but if he did not cooperate, then I was going to be forced to administer medications to relax him so that I can do the rectal exam. I further explained that if that did not work, then I would have to go to the extreme and actually paralyze him in order to do the rectal exam. I told him that I did not want to go that far. I would rather that he cooperate and we just do the rectal exam and get it over with. At that point he agreed to do the rectal exam.
. . . .
Q. What happened during this exam?
A. The patient got into the proper position. I prepared to do the rectal exam. He would not allow me to do so. He contracted his anal and rectal muscles so that I could not get my finger inside of his rectum.
Q. This was absent any sort of sedation?
A. Correct.
Q. Then what happened?
A. As I initially told him, if he did not cooperate, I was going to have to give him medication to sedate him in order to do the exam. After the initial attempt to do the exam which failed, I then ordered the nurse to administer ten milligrams of a drug called Midazolam which usually sedates an adult enough to relax all of their musculature so I can do the exam.
Q. Did you in fact sedate the defendant?
A. I did.
Q. What happened after he was sedated?
A. I waited approximately ten to 15 minutes for the medicine to take full effect. I reattempted the rectal exam.
Q. What happened on your reattempt?
A. I was more successful in getting into his rectum at that point because he was sedated and with the tip of my finger I could feel a foreign object in his rectum. He was still conscious enough to contract his muscles enough so that I could not do a complete rectal exam and remove the object.
Q. So what step did you take next?
A. At that point I was convinced beyond any doubt that there was something in his rectum and that I had to do whatever was necessary to get it out. I went to the next step which I had explained previously to the patient and that was to do paralysis. I administered a combination of medications which paralyze every muscle in the body and I also had to stick a tube down his lungs in order to take over his breathing, basically to control his physiology and keep him alive while he was paralyzed.

Wow, this doc does not mess around when it comes to sorting out rectums.

Not too surprisingly, the court decided that this was an illegal search in violation of Booker’s Fourth Amendment rights, and also that the doctor had committed medical battery against Booker by paralyzing him and conducting an invasive procedure against his will.

So, whatever’s got you down in the dumps at midweek, take heart that your rectum is safe, at least in the Sixth Circuit, from unreasonable police intrusion.  And, to my mind, that’s something to be thankful for 🙂

Have a great rest of the week!

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Video cameras are more prevalent than ever, and even a cursory search of youtube or similar sites quickly shows that anything and everything is being recorded these days (especially cats, with over 11.6 million results on youtube alone).

Another favorite seems to be filming police behavior in public, with sometimes controversial results.

For example, a California man recently died during a police incident, part of which was captured on a cell phone.  While the video is grainy, it seems to show several people striking someone repeatedly.  The woman who captured the footage had her camera confiscated by detectives, reportedly before a warrant was obtained for the seizure. When the camera was later returned, one video that had previously been on the phone had allegedly been deleted.

The FBI has now gotten involved in the case, and the investigation is ongoing.

Raw footage of alleged beating of David Sal Silva

All of this brings us to the question of whether or not individuals are allowed to record police activity in public. While it appears that the First and Fourth Amendments to the Constitution allow it, the issue is fraught with problems.  Some police departments train their officers not to seize video footage without authorization, for example, while others have no clear policy at all.

There’s a risk to filming police activity, even if you’re acting within your Constitutionally guaranteed rights.

While this isn’t legal advice (nothing on is), one website offers the following “rules” when recording police activity:

  • Rule #1: Know the Law (Wherever You Are)
  • Rule #2 Don’t Secretly Record Police
  • Rule #3: Respond to What Cops Say
  • Rule #4: Don’t Share Your Video with Police
  • Rule #5: Prepare to be Arrested
  • Rule #6: Master Your Technology
  • Rule #7: Don’t Point Your Camera Like a Gun

Rules number 1 and 7 would seem to be particularly important, but all of them might be helpful if you find yourself in a situation that you believe warrants filming police behavior. If you have questions, though, seek legal advice from an attorney who knows the laws in your jurisdiction (I just can’t stress that enough).

And finally, before we conclude that all police officers are somehow bad people who need to be constantly videotaped in order to prevent bad behavior, take a look at this video of a Portland police officer who stops to take care of a family of ducks, even though the bad guy gets away as a result.

An officer with a heart

Have a safe weekend!