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Better to be ‘fetal’ and free than aggressive and incarcerated

Better to be ‘fetal’ and free than aggressive and incarcerated

The “Ferguson effect” is real. As of November 16, 2015, the City of Baltimore recorded 303 homicides for 2015: the most since 1999, and we still have a couple months to go. This spike is not an aberration, it is the direct result of Baltimore police officers being afraid becoming a headline and/or a defendant in a criminal proceeding for doing pro-active police work. Recently, various leaders have expressed their opinions about the realty of the situation. FBI Director James Cooney and Drug Enforcement Administration Chief Chuck Rosenberg came under fire for expressing their hypothesis attributing a correlation between rising crime rates and law enforcements’ hesitation to do police work for fear of scrutiny. Mayor Emmanuel described officers as “fetal.” At first I, like many, were offended by the mayor’s characterization. However, upon further examination, I applaud the mayor and the other leaders for their candor. It would have been easier to cite the politically correct answer assuring the public that there is no reason for concern, everything will be fine. That would be untruth. The public has legitimate reason to be alarmed.

I recently tried a case in federal court wherein I represented a Chicago Police Officer who was charged criminally with three felonies arising out of his arrest of an individual at a convenience store. The incident was captured on surveillance video. We were pleased the jury found the officer not guilty on 2 of the 3 counts; however he was found guilty of using excessive force in the case. We await sentencing. The outcome here will not help lessen the “Ferguson effect.” In this case, my client and his partner were assigned to a tactical team in the southeast side of Chicago. They received information from a neighborhood relations officer who spoke with an elderly women in the neighborhood who complained about drugs were being sold out of a convenience store in the 7600 block of south Coles. The woman further stated many of the offenders were armed with guns. The officers did exactly what they were supposed to do in this case. The followed up on the tip and entered the store and found several individuals loitering. Nobody was shopping in the store. Instead many of the individuals claimed to be working at the store. This tiny convenient store had more employees working than Costco. In fairness, they were in fact working for the store; however, their duties did not include stocking shelves or working the cash register. They sold drugs out of the store, with unequivocal consent and knowledge of the store owners.

Upon entering the store, the officers briefly detained several of the individuals observed loitering. They were handcuffed to arm-to-harm with each other while the officers conducted their investigation. One of the “employees” began to challenge the officers verbally. The handcuffs were removed from this individual as my client’s partner told him in no uncertain terms that his threats would not be tolerated while the police conducted the investigation. Upon hearing the verbal confrontation, my client went to the front of the store to make sure his partner was in control of the situation. As he approached he inquired as to whether the mouthy detainee had been previously searched. He realized a search had not been performed on this idividual and my client began to conduct a protective pat-down search. My client became concerned about the subject because of his demeanor and his continued verbal threats directed toward the officers. As he got within feet of the subject he saw what he believed to be a gun in the subject’s back pocket. He was scared and concerned that he and his partner were in danger considering they were significantly outnumbered and he was not sure if any of the others were armed. My client made a tactical decision to use an open hand stun to the offender in an attempt to gain control. The offender did not comply with the officer’s verbal direction and began to move away from him in an attempt to defeat the arrest. My client was able to pin the offender against a cooler; however the offender continued to resist the officer. While he was resisting, the offender extended his hand toward the officer and actually touched the officer’s gun holstered to his side. Believing the offender was attempting to disarm him, the officer delivered another stun to the offender. This time the stun was effective and the officer was able to gain limited control of the offender. The officer walked the offender down an aisle so as to remove him from his fellow detainees in hopes of deescalating the situation. The officer was concerned about getting into a wrestling match with the offender due to the fact that his partner was alone with several detainees. The officer lightly kicked the offender once he got him to the ground in an attempt to persuade the offender to comply with his direction to lye face first on the ground. Luckily, the offender eventually complied and the officer was able to secure the offender and recover the loaded handgun from his rear pocket. Also recovered from the offender was a bag of marijuana which was packaged in several smaller bags. The offender was placed under arrest and he had no visible injuries, nor did he complain of any injuries. This was a good day for law enforcement and the community. The citizen’s tip proved to be accurate and a drug dealer armed with a loaded gun was arrested and removed from the store. However, the story did not end there. Instead, the Federal Government reversed the ending and made the hero the criminal and the criminal the hero.

The victim in this case was the community. At trial video from the store was shown from the day of the arrest and the following day. The footage from the day of the arrest depicted a store notably absent of customers and filled with loiterers/drug dealers. In stark contrast, the following day’s footage depicted a store with actual customers. The community was able to shop in their store once again due to the actions of the police on the previous day. At one point the video showed a little girl, with the innocence and care free attitude only a child can possess, purchasing candy. This Norman Rockwell moment was only temporary because the drug dealers were rewarded and the hero was charged. The drug dealers returned and the store was eventually shut down by the City for repeated violations. The community lost in this case. What is the lesson learned here? Why would a police officer ever again take the pro-active step of investigating a citizen complaint and risk putting themselves in the cross-hairs? The unfortunate truth is that going forward most officers will do little more than back their squads out of the parking lot during their tour of duty. Better to be fetal and free than aggressive and incarcerated.

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