Over last 5 years police have killed over 400 drivers or passengers

“Open the door now, you are going to get shot!” an officer in Rock Falls, Ill., shouted at Nathaniel Edwards after a car chase.

“Hands out the window now or you will be shot!” yelled a patrolman in Bakersfield, Calif., as Marvin Urbina wrestled with inflated airbags after a pursuit ended in a crash.

“I am going to shoot you — what part of that don’t you understand?” threatened an officer in Little Rock, Ark., adding a profanity, as she tried to pry James Hartsfield from his car.

The police officers who issued those warnings had stopped the motorists for common offenses: swerving across double yellow lines, speeding recklessly, carrying an open beer bottle, reported The New York Times. None of the men were armed. Yet within moments of pulling them over, officers fatally shot all three.

The deaths are among a series of seemingly avoidable killings across the United States. Over the past five years, a New York Times investigation found, police officers have killed more than 400 drivers or passengers who were not wielding a gun or a knife, or under pursuit for a violent crime — a rate of more than one a week.

Most of the officers did so with impunity. Only five have been convicted of crimes in those killings, according to a review of the publicly reported cases. Yet local governments paid at least $125 million to resolve about 40 wrongful-death lawsuits and other claims. Many stops began with common traffic violations like broken taillights or running a red light; relative to the population, Black drivers were overrepresented among those killed.

The recurrence of such cases and the rarity of convictions both follow from an overstatement, ingrained in court precedents and police culture, of the danger that vehicle stops pose to officers. Claiming a sense of mortal peril — whether genuine in the moment or only asserted later — has often shielded officers from accountability for using deadly force.

 “We get into what I would call anticipatory killings,” said Sim Gill, the district attorney for Salt Lake County, Utah. “We can’t give carte blanche to that.”

Whenever any kind of encounter between law enforcement and citizens ends in a loss of life, it is highly regrettable. When that loss of life is avoidable, it becomes more so. But where the legal standard for justification on the use of force is met, criminal prosecution is not an available remedy to address it.

In case after case, officers said they had feared for their lives. And in case after case, prosecutors declared the killings of unarmed motorists legally justifiable. But The Times reviewed video and audio recordings, prosecutor statements and court documents, finding patterns of questionable police conduct that went beyond recent high-profile deaths of unarmed drivers. Evidence often contradicted the accounts of law enforcement officers.

Dozens of encounters appeared to turn on what criminologists describe as officer-created jeopardy: Officers regularly — and unnecessarily — placed themselves in danger by standing in front of fleeing vehicles or reaching inside car windows, then fired their weapons in what they later said was self-defense. Frequently, officers also appeared to exaggerate the threat.

In many cases, local police officers, state troopers or sheriff’s deputies responded with outsize aggression to disrespect or disobedience — a driver talking back, revving an engine or refusing to get out of a car, what officers sometimes call “contempt of cop.”

fire at a motorist with a suspended license in 2017: “Don’t ram him, shoot him!” he later recounted saying, according to a body-camera recording. Knocking the man off the highway might “tear my cars up!”

Struggling to subdue a driver a few months later, a patrolman in Moundridge, Kan., warned that the man might be reaching for a police sidearm; an officer shot him, another struck his head with the butt of a shotgun and a third pummeled his body with a baton — killing him though he never touched a gun, video records show. And last year a body camera recorded an officer in Las Cruces, N.M., warning a motorist that he would “choke you out, bro,” then pinning him in a headlock. “A good little scrap,” the officer called it, before realizing the man had died.

Some families of the drivers said that their relatives were not blameless. “I don’t have my head buried in the sand,” said Deborah Lilly, whose 29-year-old son, Tyler Hays, had drugs in his car and tried to run away when he was pulled over for tinted windows last year by a sheriff’s deputy in Hamilton County, Tenn. “I am just saying he did not deserve to get shot in the back.” (Over the next three months, the deputy shot at two other unarmed drivers, wounding one.)

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Oklahoma carries out execution within hours of SCOTUS decision

The 9th Execution of 2021

His arms outstretched and body bound to the execution gurney, John Marion Grant turned his head as a sedative — the first dose of his deadly drip — flowed through the IV and into his veins, reported the Washington Post.

Grant exhaled. Then, his entire body convulsed, Associated Press reporter Sean Murphy, who observed the execution on October 29, 2021at the Oklahoma State Penitentiary in McAlester, said at a news conference.

Grant’s body shook and jerked nearly two dozen times before vomit spurted from his mouth and spilled down his neck, Murphy said.

The 60-year-old was still alive as members of the execution team entered and wiped the sick off Grant’s face.

Minutes passed and he was unconscious by 4:15 p.m. The second and third drugs in the three-part lethal cocktail came a minute later. Another minute passed before Grant stopped breathing. He was declared dead at 4:21 p.m.

The events on Thursday, which experts called “unusual,” came hours after the U.S. Supreme Court lifted stays of execution issued Wednesday for Grant and another inmate, Julius Jones. Jones, 41, who maintains his innocence for a 1999 murder, claiming he was framed, is scheduled for the lethal injection on Nov. 18. He has a clemency hearing before the Oklahoma Pardon and Parole Board on Tuesday.

Grant was sentenced to death in 2000 for killing a cafeteria worker in 1998. He stabbed 58-year-old Gay Carter 16 times with a homemade shank at Dick Conner Correctional Center in Hominy, Okla., where he was serving a 130-year sentence for numerous armed robberies, according to the AP. He had been denied clemency twice — most recently earlier this month in a 3-to-2 decision.

Grant’s reaction to the sedative midazolam is potential fodder for death penalty critics, since his execution formally ends a six-year hiatus in Oklahoma following concerns over a string of botched lethal injections.

Oklahoma turns to Supreme Court after long-delayed executions are halted again

In a statement, the Oklahoma Department of Corrections said “Grant’s execution was carried out in accordance with … protocols and without complication.”

This year, more than two dozen death row inmates filed a federal lawsuit arguing that the state’s three-drug protocol for lethal injections risks causing pain and suffering, which they claim is unconstitutional. The trial, which a judge in August allowed to proceed and halted the men’s executions, is expected to begin in early 2022.

But the judge excluded Grant and five other inmates from the lawsuit because they did not choose a different method of execution. A panel in the U.S. Court of Appeals for the 10th Circuit resolved Wednesday that although the inmates did not check a box specifying which method they would choose, they did specify alternative options.. The court issued Grant and Jones’s stays of execution.

Then in a 5-to-3 decision, the Supreme Court lifted the stays, allowing Grant’s execution to move forward.

Grant was escorted into the execution chamber at around 4 p.m. on Thursday. Murphy, the AP reporter who witnessed the event, wrote that he could hear Grant shouting “Let’s go! Let’s go! Let’s go!” followed by profanities.

Almost immediately after receiving the sedative midazolam — the first of the three drugs administered, including vecuronium bromide, a paralytic, and potassium chloride to stop the heart — Grant began convulsing and vomiting.

“It seemed like a long time,” Murphy said at the news conference following the execution.

Robert Dunham, executive director of the nonpartisan Death Penalty Information Center, told the AP he had “never heard of or seen” a reaction like that before.

 “That is notable and unusual,” he said.

Dunham added in a statement that Grant’s execution was a “human experiment” for the other death row inmates involved in the lawsuit over the state’s execution process. He also referenced three botched lethal injections in Oklahoma, including the executions of Clayton Lockett — who in 2014 writhed in pain for 40 minutes before he died — and Charles Warner, whose last words were “My body is on fire” after an unauthorized drug was used on him. Richard Glossip’s execution was suddenly called off in 2015 when the state again received the wrong drugs. Glossip is still alive.

A grand jury in 2016 called the state’s lethal injection process an “inexcusable failure.”

Oklahoma, which was the first to use lethal injections, is highly secretive about the process, Deborah W. Denno, a Fordham University law professor who studies the death penalty, told The Washington Post. Oklahoma officials do not divulge their protocols, the source of the lethal drugs, or how they train their staff, she said.

“They have tried to be at the forefront of different ways of executing people,” Denno added. “It says something about the state, and definitely says something about its department of corrections and its effort to be the first and try new things despite them ending in debacle.”

Dunham agrees, adding in his statement that it appears Oklahoma has not learned from past problems.

“But to say this is another botched Oklahoma execution would be inadequate,” Dunham said. “Oklahoma knew full well that this was well within the realm of possible outcomes in a midazolam execution. It didn’t care … and the Supreme Court apparently didn’t either.”

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Advocates for gun rights and abortion rights make strange bedfellows

A gun rights group is siding with abortion providers in the Texas dispute over the nation’s strictest abortion ban, reports Bloomberg .

The law, S.B. 8, was designed with procedural quirks that are intended to insulate it from judicial review by allowing private citizens, not government officials, to enforce the ban. The move has been successful, allowing the law to go into effect for nearly two months and halting almost all abortions in the state after six weeks.

But Erik Jaffe, who filed the amicus brief on behalf of the nonprofit group Firearms Policy Coalition, fears the law could be used to limit other constitutional rights, in particular the Second Amendment.

“It’s hard to miss the parallels between abortion and guns,” said Jaffe, a former clerk to Justice Clarence Thomas who is also part of the team helping to defend Indiana’s abortion restrictions.

‘Evade Court Review’

The concerns expressed in Jaffe’s brief are shared across the political spectrum.

Take almost any individual constitutional right and it “could easily fall into a similar scheme by any state that disfavors that right,” said Brigitte Amiri of the ACLU, which represents the Texas abortion providers.

“If a state can do this here, why can’t it do it in other contexts?” Amiri asked.

That includes everything from rules restricting guns, requiring face masks, or prohibiting criticism of public officials, Jaffe said.

Amiri said the Texas case is about whether a state can “pass an unconstitutional law and do so in a way that would evade court review.”

The state argues that judicial review is still available under the law—just not in the way the abortion providers would like.

“Petitioners’ constitutional grievances do not permit the federal courts to disregard the limits of their own jurisdiction,” the state told the justices in urging them not to take the case.

“Federal courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws,” it said, saying that the abortion providers must wait until they are sued in state court to challenge the constitutionality of the law.

‘Blatantly Unconstitutional’

Amiri said the Texas law “is a blatantly unconstitutional law under current Supreme Court precedent.” She noted, however, that the question of whether to overturn that existing precedent is directly at issue in a separate case that the justices will weigh this term, Dobbs v. Jackson Women’s Health Organization.

The Supreme Court stopped short of pausing S.B. 8 while the litigation plays out, saying in an unsigned Sept. 1 order that although the abortion providers “raised serious questions regarding the constitutionality of the Texas law at issue,” the justices couldn’t intervene because there were “complex and novel antecedent procedural questions.”

Most notably the law allows private citizens to enforce the ban by initiating lawsuits against anyone who “aids or abets” an abortion.

Without government officials enforcing the law, it’s hard to know who to sue, Amiri said, a question the justices have fast-tracked to hear Nov. 1. Along with the suit brought by the abortion providers, the justices will also consider the Biden administration’s attempt to sue Texas to enforce abortion rights.

Moreover, the law includes draconian statutory penalties, cost-shifting measures favoring anti-abortion activists, and broad rules that allow abortion providers to be sued anywhere in Texas.

Texas is “about as bold and shameless as possible,” in “putting a thumb on the scale to make it impossible to litigate these cases,” Jaffe said.

‘Fast and Loose’

That’s why Jaffe filed a friend-of-the-court brief supporting the abortion providers—to call out the implications for other constitutional rights.

“To the extent this tactic is effective at evading or outright blocking preenforcement review, while allowing the significant and largely decisive deterrent to persist unless and until a direct application of the law is reviewed by this Court, it will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets of such suppression,” Jaffe wrote in a brief urging the justices to consider the case.

“People think Roe should be overruled,” Jaffe said, referring to the court’s landmark 1973 abortion decision. “Everyone else on the other side thinks Heller should be overruled,” he said, referring to the court’s 2008 ruling affirming the right to own a gun in the home.

But until the Supreme Court actually overturns its precedent, states must enforce constitutional law, Jaffe said.

“You don’t get to play fast and loose with the procedure,” he said.

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Police in schools do not reduce school shootings, but do increase student suspensions, expulsions, and arrests

New research finds that police deployed in schools, commonly called school resource officers (SROs), do not reduce school shootings, but do increase suspensions, expulsions, and arrests of students, reported Reason.

A working paper published last week by the Annenberg Institute at Brown University and written by researchers at the University at Albany, SUNY and RAND Corporation bills itself as the broadest and most rigorous examination at the school-level of how SROs impact student outcomes. Using national school-level data from 2014 to 2018 collected by the U.S. Department of Education, the paper found that while SROs "do effectively reduce some forms of violence in schools," they do not prevent school shootings or gun-related incidents.

"We also find that SROs intensify the use of suspensions, expulsions, police referrals, and arrests of students," researchers wrote. "These effects are consistently over two times larger for Black students than White students."

The study found that the introduction of SROs to schools did appear to improve general safety and decrease non-gun-related violence, like fights and physical assaults. However, the authors say, those benefits come at the cost of increasing both school discipline and police referrals.

The study further found that SROs increase chronic absenteeism, especially for students with disabilities.

During the nationwide debate over policing last year, school districts across the country began reconsidering the use of SROs, and several major cities—Minneapolis, Denver, Seattle, Charlottesville, and Portland, Oregon—ended their SRO programs in public schools. Other jurisdictions significantly cut their budgets for school policing.

The number of police in schools has skyrocketed in schools over the past four decades, first in response to drugs, then mass shootings. Police departments and organizations like the National Association of School Resource Officers argue that well-trained SROs act as liaisons between the school and police department. A good SRO, they argue, can actually reduce arrests.

Civil liberties groups and disability advocates, on the other hand, have long argued that increases in school police and zero-tolerance policies for petty disturbances have fueled the "school-to-prison" pipeline and led to disproportionate enforcement against minorities and students with disabilities.

Other recent research has come to similar conclusions as the new working paper. For example, a study published last August by researchers at the University of Maryland and the firm Westat found that increasing the number of police in schools doesn't make school safer and leads to harsher discipline for infractions. The study found that increasing the number of SROs led to both immediate and persistent increases in the number of drug and weapon offenses and the number of exclusionary disciplinary actions against students.

After Florida mandated that all K-12 schools have at least one SRO or armed guardian following the 2018 mass shooting at Marjory Stoneman Douglas High School, a study found that the number of school arrests—which had been declining for years—suddenly started to rise. There was also a sharp increase in the use of physical restraint against students.

As Reason reported last June, Florida civil liberties groups and disability advocates warned that the hiring surge was leading to a disturbing number of arrests of children. The research appeared to confirm at least some of their concerns. The study found that the presence of SROs "predicted greater numbers of behavioral incidents being reported to law enforcement, particularly for less severe infractions and among middle schoolers." 

While overall youth arrests in the state declined by 12 percent, the number of youth arrests at school increased 8 percent. Florida police arrested elementary-aged children 345 times during the 2018–2019 school year, the study reported. It also found four times as many incidents of physical restraint in 2018–2019 as there were in the previous year.

Florida has also been the site of several recent viral videos of small children being arrested. Last year, body camera footage emerged showing officers in Key West, Florida, trying and failing to handcuff an 8-year-old boy, whose wrists were too small for the cuffs. An Orlando SRO made headlines last September when he arrested a 6-year-old girl.

Such viral incidents have sparked national outrage and calls for SRO programs to be curtailed. Chicago activists who want to defund the school system's police program have cited a 2019 video in which Chicago police officers kick, punch, and taser a 16-year-old girl. The Justice Department's 2017 report on civil liberties abuses by the Chicago Police Department included findings that officers beat and tasered teenagers in school for non-criminal conduct and minor violations.

Just yesterday, Hawaii News Now reported on a 10-year-old girl who was handcuffed and arrested for drawing an offensive picture that upset another student's parent.

Earlier this year, the city of Rochester, New York, released body camera footage of officers pepper spraying a handcuffed 9-year-old girl. 

A North Carolina mother filed a civil rights lawsuit last October against a policeman who handcuffed and held her autistic 7-year-old son prone on the ground for nearly 40 minutes.

The list could go on and on: a school resource officer at a high school in Camden, Arkansas, was relieved of duty after video showed him putting a student in a chokehold and lifting the student off the ground. A North Carolina SRO was fired after he brutally body-slammed a middle-schooler. A Broward County sheriff's deputy in Florida was arrested and charged with child abuse after a video showed him body-slamming a 15-year-old girl at a special needs school.

In response to incidents like these, legislators in states around the country have been introducing legislation to raise the minimum age at which children can be arrested.

The authors of the new working paper say that school districts should weigh the benefits of safer hallways against the high cost of putting more kids in contact with the criminal justice system.

"The results of this study present a difficult set of tradeoffs," researchers conclude. "Although our study does not perform a cost-benefit analysis, we encourage districts to consider these effects of SROs in comparison to other potential investments to prevent violence in schools, including restorative practices."

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Willard Hotel was "command center" for overthrow of election

They called it the “command center,” a set of rooms and suites in the posh Willard hotel a block from the White House where some of President Donald Trump’s most loyal lieutenants were working day and night with one goal in mind: overturning the results of the 2020 election, reported the Washington Post.

The Jan. 6 rally on the Ellipse and the ensuing attack on the Capitol by a pro-Trump mob would draw the world’s attention to the quest to physically block Congress from affirming Joe Biden’s victory. But the activities at the Willard that week add to an emerging picture of a less visible effort, mapped out in memos by a conservative pro-Trump legal scholar and pursued by a team of presidential advisers and lawyers seeking to pull off what they claim was a legal strategy to reinstate Trump for a second term.

They were led by Trump’s personal lawyer Rudolph W. Giuliani. Former chief White House strategist Stephen K. Bannon was an occasional presence as the effort’s senior political adviser. Former New York City police commissioner Bernard Kerik was there as an investigator. Also present was John Eastman, the scholar, who outlined scenarios for denying Biden the presidency in an Oval Office meeting on Jan. 4 with Trump and Vice President Mike Pence.

They sought to make the case to Pence and ramp up pressure on him to take actions on Jan. 6 that Eastman suggested were within his powers, three people familiar with the operation said, speaking on the condition of anonymity to describe private conversations. Their activities included finding and publicizing alleged evidence of fraud, urging members of state legislatures to challenge Biden’s victory and calling on the Trump-supporting public to press Republican officials in key states.

The effort underscores the extent to which Trump and a handful of true believers were working until the last possible moment to subvert the will of the voters, seeking to pressure Pence to delay or even block certification of the election, leveraging any possible constitutional loophole to test the boundaries of American democracy.

“I firmly believed then, as I believe now, that the vice president — as president of the Senate — had the constitutional power to send the issue back to the states for 10 days to investigate the widespread fraud and report back well in advance of Inauguration Day, January 20th,” one of those present, senior campaign aide and former White House special assistant Boris Epshteyn, told The Washington Post. “Our efforts were focused on conveying that message.”

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Alabama carries out execution

The 8th Execution of 2021

Alabama corrections officials executed Willie Smith on October 21, 2021, eight months after the Supreme Court halted his lethal injection over a dispute about having his pastor present in the death chamber.

Smith, 52, was declared dead at 9:47 p.m., according to the attorney general's office. He was sentenced to death in 1992 for the abduction, robbery and murder of Sharma Johnson, 22, in 1991.

"The family of Sharma Johnson has had to wait 29 years, 11 months and 25 days to see the sentence of Sharma's murderer be carried out," Alabama Attorney General Steven Marshall said in a statement. "Finally, the cruel and unusual punishment that has been inflicted upon them -- a decades-long denial of justice -- has come to an end."

The execution "went according to our protocol," Alabama Department of Corrections Commissioner told reporters afterward.

A press witness to the execution said Smith was accompanied into the chamber by his spiritual adviser Robert Wiley and that he offered no final words, WIAT reported.

He had no last meal and had refused breakfast and lunch during the day in which he was observed drinking a coke and eating M&Ms and barbecue chips, prison spokesperson Linda Mays said.

The execution was delayed several hours as the U.S. Supreme Court considered a petition by Smith's lawyers over his method of execution, which was denied.

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DA takes issue with suggestion that bystanders didn't intervene in rape

Delaware County District Attorney Jack Stollsteimer is pushing back on what he claims is a false narrative about the actions of bystanders during an alleged rape on SEPTA’s Market-Frankford line last week, reported WHYY-FM.

SEPTA officials and Upper Darby police have been quoted in stories that have been circulating nationally about the assault, many saying that bystanders stood by, watched, filmed, and did not intervene. Read my blog about the Bystanders Effect and the tragic murder of Kitty Genovese.

More than two dozen train stops passed as the man harassed, groped and eventually raped the woman, SEPTA Police Chief Thomas J. Nestel III said.

At a Thursday press conference in Media, Stollsteimer says it’s true that no one intervened, and that a handful of people were on and off the train during the incident. But he said that some of those people may not have known what was happening.

“People get off and on at every single stop,” said Stollsteimer, “that doesn’t mean when they get on and they see people interacting, that they know a rape is occurring.”

When asked about the content of the video, and if the assault would be obvious to bystanders, Stollsteimer declined to respond and said the video was “evidence.”

Authorities in Philadelphia say a woman was raped by a stranger on a commuter train in the presence of other riders. A 35-year-old man was arrested and has been charged.

The DA said that two people filmed the assault on their phones, and one of those videos was handed in to the police. Stollsteimer also said one of the people who filmed was likely the person who gave an anonymous tip to SEPTA officials.

“There is a narrative out there that people sat on the EL train and watched this transpire and took videos of it for their own gratification. That is simply not true,” said Stollsteimer.  “It did not happen.”

SEPTA declined a request for comment. A suspect in the case, Fiston Ngoy, 35, is in custody.

The DA is asking for anyone else who witnessed the incident to step forward.

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Not prosecuting drug possession and prostitution is no threat to public safety

Researchers at the Johns Hopkins University measured Baltimore State’s Attorney Marilyn Mosby’s policy to quit prosecuting drug possession and prostitution, finding no increase in citizen complaints or greater threat to public safety, reported the Baltimore Sun.

The researchers issued their results Tuesday after a 14-month study of the policy. Soon after the coronavirus pandemic hit in March 2020, Mosby announced she would cease prosecuting people for possessing drugs, prostitution, and other nonviolent offenses. She also dismissed pending cases of drug possession and prostitution.

Hopkins researchers found she dropped charges against 741 people. Six of those people were rearrested for violent crimes such as robbery and assault, the researchers wrote. That’s less than 1%.

“This suggests that the vast majority of direct beneficiaries of the policy change did not go on to commit crimes threatening public safety,” wrote the four researchers from the Johns Hopkins Bloomberg School of Public Health.

Mosby has defended her policy by arguing the prosecution of low-level, nonviolent crimes such as drug possession, open containers and prostitution has disproportionately and harmfully affected minority neighborhoods in Baltimore. The researchers cite statistics that 70% of Maryland’s prison population was Black in 2018 — double the national average. Mosby’s argued tough enforcement can end without an uptick in crime.

“This report demonstrates what we have set out to do as an office — reimagine the criminal justice system, by promoting healthy communities and no longer criminalizing behavioral health issues that do not pose a public safety threat,” Mosby said in a statement.

In March 2020, she announced her policy as a way to reduce the number of people behind bars in Maryland, where they’re at risk of contracting the coronavirus. One year later, she announced the COVID-19 policies would be permanent.

Her policy falls in line with other progressive strategies she brought to Baltimore. In 2019, Mosby announced she would cease prosecuting people for possessing marijuana.

“The data proves that we must continue to move past the era of tough-on-crime prosecution and zero tolerance policing and no longer just default to the status quo of criminalizing mostly people of color for addiction,” she said. “I appreciate the hard work and detailed analysis by the Johns

In the Hopkins study, researchers estimate her policy averted about 440 arrests for drug and paraphernalia possession. Almost 80% of those arrests would have fallen on Baltimore’s Black population, the researchers estimated.

They also counted nearly 4,000 drug-related 911 calls a month before the policy. Afterward, the number of drug-related 911 calls fell to about 2,500, a 37% decrease. And they counted 167 calls a month to 911 about prostitution before the policy. That figure has declined by about five calls a month.

Still, researchers wrote 911 calls may have declined because citizens knew those crimes wouldn’t be prosecuted rather than a reduction in community concern.

“We found these results very encouraging on the whole because we know that putting people into the criminal legal system is harmful to their mental and physical health, and it seems that Baltimore has been able to reduce that problem without incurring a significant cost in terms of public safety,” said Hopkins scientist Saba Rouhani, the study’s lead author.

The researchers conducted the study at the request of Mosby’s office. They noted further study is required to know whether people who use drugs and perform sex work are getting help when they are no longer being criminalized.

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SCOTUS continues to support qualified immunity

In two unsigned decisions without noted dissents, the U.S. Supreme Court ruled in favor of police officers accused of using excessive force, reported The New York Times. The rulings were a signal that the court continues to support the doctrine of qualified immunity, which can shield police misconduct from lawsuits seeking damages.

The doctrine has been the subject of criticism across the ideological spectrum, and it became a flash point in the nationwide protests last year over police brutality, with activists and lawmakers calling for its reconsideration.

The doctrine requires plaintiffs to overcome a daunting hurdle. They must not only show that the official accused of misconduct violated a constitutional right, but also that the right had been “clearly established” in a previous ruling. The Supreme Court has generally required a tight factual fit between an earlier ruling and challenged conduct.

Critics of the doctrine were heartened by two rulings this year that called on appeals courts to reconsider rulings in favor of corrections officers accused of mistreating prisoners. One prisoner was held in what the court called “shockingly unsanitary cells,” and the other was sprayed in the face with a chemical “for no reason at all.”

Some cases are so egregious, the court suggested, that no precedent directly on point was necessary to allow a plaintiff to sue.

The decisions on Monday, which concerned police officers rather than prison guards, took a different approach. One arose from a 911 call reporting that a woman and her two children were barricaded in a room in Union City, Calif., fearing that Ramon Cortesluna, the woman’s boyfriend, would break in and hurt them.

Five officers responded, ordering Mr. Cortesluna to come outside, raise his hands and get on his knees. He complied at first but later dropped his hands, and the officers noticed a knife in his back pocket. An officer shot him in the stomach and left hip with nonlethal beanbag rounds.

The U.S. Court of Appeals for the Ninth Circuit, in San Francisco, ruled that those shots “were objectively reasonable in the circumstances.”

The appeals court took a different view of what followed. After Mr. Cortesluna was shot, he was ordered to get down. He did, lying prone on his stomach.

Officer Daniel Rivas-Villegas then straddled Mr. Cortesluna, putting his left knee on the left side of Mr. Cortesluna’s back for what the Supreme Court opinion said was “no more than eight seconds.” Another officer removed the knife and handcuffed him.

The Ninth Circuit allowed Mr. Cortesluna’s excessive force lawsuit against Mr. Rivas-Villegas to proceed, saying the officer had been on notice that putting his knee on a prone man’s back with enough force to injure him was unlawful.

The Supreme Court disagreed. “Neither Cortesluna nor the court of appeals identified any Supreme Court case that addresses facts like the ones at issue here,” the court said its unsigned opinion in the case, Rivas-Villegas v. Cortesluna, No. 20-1539. A previous decision by the Ninth Circuit, the justices added, did not address sufficiently similar facts.

That decision concerned a man who was injured after the police responded to a noise complaint. In that case, the Supreme Court opinion said, “the officer deliberately dug his knee into his back when he had no weapon and had made no threat when approached by police.”

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Is a dog-sniff reliable enough to convict an alleged criminal?

Dogs have been celebrated since antiquity for their ability to sniff a particular odor and lead humans to its source, reported Science. But the domesticated canine’s transformation into crime-fighting companion emerged much more recently, as U.S. police launched K-9 training programs and a thriving cottage industry of private firms, which often aid law enforcement, emerged. 

Today, police use dogs to track fugitives and search for missing persons, obtain probable cause (that is, legal justification to get a search warrant), and find substances, particularly illegal drugs. In what are known as scent lineups, agencies use trained canines to match evidence collected at a crime scene to the scent of a suspect or body. Increasingly, testimony from dog handlers has also served as direct evidence of guilt—accepted in lieu of an actual corpse, drug stash, or other physical evidence of a crime.

Yet critics worry that the criminal legal system has embraced a technique profoundly lacking in scientific validation. Dog-sniff evidence has led to wrongful convictions, and studies show human biases skew animal behavior. Almost no published research indicates just what dogs detect or how they do it. Defendants and their lawyers can’t cross-examine a dog, which means the accused cannot scrutinize the evidence or readily confront their accusers, a right enshrined in the U.S. Constitution.

“It’s not enough to say I have this amazing expert with an incredible nose who can distinguish between scents,” says Binyamin Blum, an evidence scholar at the University of California (UC) Hastings College of the Law, who contends such testimony short-circuits the safeguards in place to discriminate between junk science and real science. “You have to explain exactly what their method is.”

No comprehensive database exists about exoneration that involved a dog-sniff, but according to the National Registry of Exonerations, a project hosted by the University of Michigan Law School, at least 17 innocent people have been freed after dog-sniff evidence erroneously sent them to prison. Other convictions have been upheld—even after errors came to light.

Dana Delger and M. Chris Fabricant, attorneys from the Innocence Project’s strategic litigation department have did not question whether dogs could detect odors imperceptible to humans. Rather, they argued, “What is at issue is what has never been proven with any degree of scientific reliability: the ability of a dog to detect the residual scent of a particular object, including human remains, at a specific location days, weeks, months, or even more than a year after that object was removed.” A sniff could be used to corroborate, but they argued a dog’s indications alone should not be used to prove a person’s guilt.

Fabricant and Delger argued that a dog’s behavior may reflect a handler’s expectations, pointing to a 2011 study in Animal Cognition by Lisa Lit, then at UC Davis. Lit found handlers “cued” dogs into making false indications. In one test, Lit showed up each morning with evidence bags containing cannabis and gunpowder, explaining to 18 teams that those target scents might be present inside a church. No target odors were present, and yet dogs positively indicated 85% of the time, handlers said, suggesting the dogs served as loyal companions first and objective scent detectors second.

Similar issues came to light more recently in letters criticizing a 2018 study published in Forensic Science International. The experiment was designed to test the long-standing belief that dogs could “mantrail” unfamiliar suspects by their odor. In the study, dogs correctly trailed people 82% of the time. But earlier this year, several critics pointed out methodological shortcomings stemming from handler and experimenter bias, and the journal’s editors added a cautionary “expression of concern.”

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Woman's public rape reminiscent of the Kitty Genovese murder

 A a woman was being raped while on a train near Philadelphia last week, riders watched, failed to intervene and did not call 911, reported The New York Times.

Reminiscent of the 1964 killing of Kitty Genovese. She murdered in the Queens borough of New York while as many as 38 people looked on or heard the murder.  The inaction spawning the "bystander effect' or what was also referred to as the "Genovese Syndrome." The New York Times later retracted some of the reporting and admitted to sensationalizing the reporting.

In last week's case a man whom officials identified as Fiston Ngoy sat down next to a woman at about 10 p.m. on a train that was traveling westbound on the Market-Frankford Line toward the 69th Street Transportation Center. Mr. Ngoy “attempted to touch her a few times,” said Andrew Busch, a spokesman for the Southeastern Pennsylvania Transportation Authority, known as SEPTA.

The woman pushed back and tried to stop Mr. Ngoy from touching her, Mr. Busch said. “Then, unfortunately, he proceeded to rip her clothes off,” Mr. Busch said on Sunday.

The assault lasted about eight minutes, and no passengers in the train car intervened, the authorities said.

“I’m appalled by those who did nothing to help this woman,” Timothy Bernhardt, the superintendent of the Upper Darby Township Police Department, said on Sunday. “Anybody that was on that train has to look in the mirror and ask why they didn’t intervene or why they didn’t do something.”

Several passengers were in the train car but Mr. Bernhardt declined to say how many; investigators were still working to determine the exact number, he said. While there were not “dozens of people” in the car at the time, Mr. Bernhardt said, there were enough that, “collectively, they could have gotten together and done something.”

Bystanders on the train who failed to intervene could be criminally charged if they recorded the attack, Mr. Bernhardt said, adding that it would be up to the Delaware County district attorney’s office to make such a decision after the police finish their investigation and submit their findings.

Alexis Piquero, a criminologist at the University of Miami, said there are several possible reasons that some crime witnesses do not intervene, such as fear of retaliation by the perpetrator and a belief that someone else will step in and help.

“The onus is really on us as a collective because we can’t always rely on the police,” he said. “We have to rely on one another.”

By expecting someone else to help, “we’re basically washing our hands and absolving ourselves of that responsibility,” he added.

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Oldest inmate on Ohio’s death row has died . . . of COVID-19

There was a execution scheduled for next in Ohio. The execution was to be carried out on October 20, 2021.  The execution chamber at Franklin Medical Prison in Columbus will be empty on Wednesday--James Frazier, the oldest inmate on death row died of COVID-19.

Seventy-nine-year-old James Frazier died last fall but COVID-19 got in the way and then it took his life before teh executioner could get his hands on him. In recent months, his attorneys had sought to block execution, saying he suffered from dementia and had little idea where he was.

Frazier had been sentenced to death in 2005 for killing 49-year-old Mary Stevenson during a robbery. She was killed in March 2004 when Frazier strangled her, cut her throat and fled with two of her purses.

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The Biden Commission on the Supreme Court releases initial findings

 President Joe Biden’s commission on the Supreme Court released its initial findings based on months of public hearings and research, laying out arguments related to expanding the size of the court and other issues, reported NBC News.

The documents laid out various arguments around reforming the Supreme Court but made no recommendations. The commission will meet Friday to discuss the findings and begin work on a draft report that will be discussed at a separate meeting. The group is charged with presenting a final report to Biden by mid-November.

On expanding the number of Supreme Court justices, which has become a charged political issue for Democrats and Republicans, the group said they were ultimately divided. The commission laid out a number of factors to be considered, including ways it would impact the judicial system, how the political timing would affect the court's independence and the example it would set for other countries that could use it to justify tampering with their own judicial systems.

“As a legal matter, we conclude that Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of Justices. The prudential question is more difficult, and Commissioners are divided on whether Court expansion would be wise," the materials stated.

The group said that court expansion could "undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values."

The group also detailed various scenarios for increasing the size of the court, like doing it gradually over time versus all at once, and addressed other proposed ideas like term limits and having justices associated with political parties.

Biden created the commission in April to study the number of justices on the Supreme Court along with other ways to reform the court system. He first proposed the commission when he was a presidential candidate, in response to pressure from liberals who called for adding justices following the confirmation of Amy Coney Barrett and accusations by Republicans that Biden would pack the court with liberal justices if elected.

 “It’s not about court packing. There’s a number of other things that our constitutional scholars have debated, and I'd look to see what recommendations that commission might make,” Biden said as a candidate in a CBS interview.

White House press secretary Jen Psaki said the draft materials had not been submitted to the White House for edits or feedback.

“The commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” The White House said in April.

The panel considered topics including the court’s role in the constitutional system, the length of service and turnover of justices, the membership and size of the court and case selection, rules and practices.

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New Jersey bail reform measure dramatically reduced minor offenders awaiting trial

 In 2014, New Jersey voters backed a constitutional amendment to allow judges to order certain criminal suspects be detained without bail and pushed the courts away from holding minor offenders awaiting trial, according to the New Jersey Monitor.

Since that measure went into effect in 2017, the number of individuals imprisoned on bail of $2,500 or less while awaiting trial fell to just 14 last year, the New Jersey Judiciary announced. A study conducted in 2012 put the number at more than 1,500, fully 12% of the state’s prison population.

“Based on what the hands-on experience is with the courts system, it’s proven out that we got it right,” said Assemblyman John Burzichelli (D-Gloucester), a prime sponsor of the amendment’s enabling legislation, which allowed the courts to set non-monetary release conditions.

The number of pretrial inmates held on bail of $2,500 or less has declined each year since the new rules went into effect. Replicated studies found such individuals accounted for 4.6% of New Jersey’s prison population in 2018, and 2.4% in 2019.

“If the point of it was to ensure that some of the tenets of American society — that you’re innocent until proven guilty and those people that are low societal risks are allowed to be out of jail — then it’s worked,” said Sen. Nicholas Scutari (D-Union), chair of the senate’s judiciary committee and another prime sponsor. “The data bears out that it’s working.”

The declines persisted even as widespread trial delays spurred by the pandemic pushed the number of incarcerated persons up slightly.

Scutari also credited the reforms with saving counties money that would have been used on corrections. Union County this summer transferred inmates held at its county jail in Elizabeth to the Essex County Correctional Facility. County officials expect the arrangement to save Union $103 million over the next five years.

Officials in Hudson County approved a similar agreement to share substance abuse treatment and re-entry services with Union. The Union County facility is still being used as an intake hub and for temporary detentions.

The reforms initially caused some consternation among judges, who voiced concerns over the impact of stricter trial deadlines, but — save for the delays caused by COVID-19 — those do not appear to have borne out.

“I remember the judges were going crazy. ‘It’s going to be crazy. It’s too much work,’” Scutari said. “But now they’ve gotten it done, just like I expected. We have an excellent judiciary. They got it done. They understand it now. It’s working, just as intended. Low-risk individuals are being allowed to await trial with their freedom, and we’re not jeopardizing people’s safety by putting high-risk people out there.”

The policy shift has not led to a rise in indictable offenses committed by individuals on pretrial release, the report says. That number has held steady at about 13.8% since 2017, and court appearance rates for such persons increased to 90.9% last year, from just under 90% in 2019.

The share of individuals incarcerated for serious offenses increased again, rising to 79.7%. It was 75.9% in 2019 and 74.9% in 2018.

“Too many people have ended up in jail not because they committed a serious crime, but because they can’t afford bail. That unfair system, which reigned in New Jersey for a century, unfairly punished the poor and working class,” Rep. Donald Norcross (D-01), who sponsored the bill as a state senator, said in a statement. “We have more to do to improve equity and abolish discrimination in our criminal justice system – but the annual criminal justice reform report shows we are on the right path.”

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Mangino a guest on Court TV

Watch my appearance on Court TV talking about the trial of a woman accused of killing a police officer while DUI. 

To watch the segment CLICK HERE

Proposed PA statute makes it more serious to injure a police dog than a police officer

The tragic death of Officer John Wilding of the Scranton Police Department has resulted in proposed legislation to prosecute suspects who evade the police on foot.  In July 2015, Officer Wilding fell to his death while chasing three teenagers suspected of armed robbery.

The bill would create a new offense of “Evading Arrest or Detention by Foot.” When an individual flees from a police officers attempting to make a lawful arrest or detention, the suspect creates a risk of harm not just to police, but also a police K9 as well as innocent bystanders and themselves. 

Interestingly, the proposed law makes injuring a K9 a more serious crime than injuring a police officer. It is a Felony-2 to seriously injure a police dog and a Felony-3 to seriously injure a police officer.  It is a Felony-3 to merely injure a dog and a Misdemeanor-2 for injuring a man/woman.

According to the bills sponsor, a thorough review of our existing statutes demonstrated that we currently prohibit fleeing from an officer in a vehicle and struggling with an officer attempting to place an individual under lawful arrest; however, our statutes are silent with respect to fleeing an officer on foot and placing the officers or innocent bystanders at risk of injury.

The proposed law would create a separate offense for injuring a police animal while a person is evading arrest. Officer Wilding had been pursuing a position in the Scranton Police Department as a K9 officer and this change will further assist in the protection of the animals that serve our communities.

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Mangino provides trial analysis for Law and Crime Network

Watch my analysis of the Mark Gooch trial in Arizona on Law and Crime Network. 

To watch the segment CLICK HERE

Man accused of killing Ahmaud Arbery wants vanity plate with confederate flag excluded from trial

One of the men accused of chasing and murdering Ahmaud Arbery is fighting to ban certain photo evidence from his upcoming trial, according to Fox5 in Atlanta.

Travis McMichael and his attorneys have requested that the court ban a photo of his old Georgia flag-theme vanity license plate, which includes a Confederate emblem.

In response, the state asked the court to deny the motion, saying the plates were on the truck at the time of the incident when Arbery was shot and killed.

Earlier this month, a Georgia judge ruled that Arbery's mental health records could not be used as trial evidence by the defense, ruling that his medical privacy, even in death, trumped the rights of the men standing trial to a robust defense. And he concluded that a registered nurse’s "highly questionable diagnosis" that Arbery suffered from mental illness during his first and only visit to a mental health services provider in 2018 could unfairly prejudice a trial jury.

"There is no evidence that the victim was suffering from any mental health issue, or had otherwise decompensated, on February 23, 2020," the date Arbery was killed, the judge’s ruling said.

In September, the judge dealt another setback to the defendants when he ruled that evidence of Arbery’s past run-ins with law enforcement, including two arrests, was also off-limits.

Prosecutors say Arbery was merely jogging in February when father and son Gregory and Travis McMichael armed themselves and chased Arbery in a pickup truck in their neighborhood just outside the port city of Brunswick, about 70 miles south of Savannah.

A neighbor who joined the chase, William "Roddie" Bryan, took cellphone video that showed Travis McMichael fatally shooting Arbery as he threw punches and grabbed for McMichael’s shotgun. Arbery was unarmed when he was killed by three shotgun blasts at close range.

The McMichaels and Bryan were arrested and charged with murder after the video was leaked online more than two months later, on May 5. The Georgia Bureau of Investigation took over the case the next day and swiftly arrested all three men.

Defense attorneys argue the McMichaels and Bryan committed no crimes. They say the McMichaels suspected Arbery was a burglar after he was recorded by video cameras inside a home under construction. Travis McMichael’s lawyers say he shot Arbery in self-defense.

The attorneys hoped to cast doubt on prosecutors’ contention that Arbery was an innocent jogger and to bolster their argument that the white men reasonably suspected Arbery had committed a crime when they chased him.

Prosecutors argued that defense lawyers were seeking to put Arbery on trial by making his criminal record and mental health part of the case. None of the three defendants knew Arbery, or anything about his past, prior to the shooting.

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Mangino on WFMJ-TV21 Weekend Today

 Watch my interview on WFMJ-TV21 discussing the opioid lawsuit in federal court in Cleveland, Ohio.

To watch the interview CLICK HERE

The clearance rate for homicide fell below 50 percent in 2020

 The number of murder cases that go unsolved by police hit a new high in 2020, according to an analysis of recent FBI data by the Council on Criminal Justice (CCJ), reported The Crime Report

Number-crunching by the CCJ revealed that the murder  “clearance rate”―the proportion of resolved cases―fell to 50 percent last year, in tandem with an historic single-year increase in homicides.

That represented a five percent drop from the previous year, amounting to “the largest decrease in clearance rates since 1989,” the CCJ analysis said.

Clearance rates in fact have been dropping steadily since the 1970s. In 1976, according to FBI figures, police were able to solve 82 percent of murders.

The lowering clearance rates may be driven by the fact that police didn’t know the specific relationships between victims and perpetrators in more than half the cases, with over 56 percent of the circumstances  recorded as “unknown” ― a rise of 10 percent since 2010.

“When fewer cases are solved, authorities know less about them,” the CCJ report said.

The CCJ noted that ”some media reports, and some elected officials and candidates for elected office have suggested that homicides have become more random and brazen,”  but added there isn’t enough data to support those characterizations.

The latest load of unsolved murders has added to the accumulating number of “cold cases” languishing in precincts around the country. At the end of 2019, the number of unsolved homicides in the U.S. exceeded 269,205 cases, James M. Adcock, founder of the Mid-South Cold Case Initiative, wrote earlier this year in The Crime Report.

Few observers expect the number of cleared cases to improve any time soon, particularly as police departments around the country grapple with staffing shortages and eroding community trust.

The analysis comes against the background of an historic spike of nearly 30 percent in the homicide rate in 2020―“the largest in 100 years,” according to a report released this week by the Centers for Disease Control and Prevention.

But the CCJ cautioned against drawing any conclusion about the 2020 surge, noting that the rate of increase in homicide had already begun to slow during 2021, to about 16 percent. While that still represents a significant rise, fears about a “crime wave” are likely misplaced.

Even the 2020 homicide rate remains 33 percent lower than its most recent peak in 1991.

Other public safety indicators such as property crimes have continued on a downward slope since the high-crime 1990s.

Nevertheless, CCJ noted that the FBI figures show an increase in the percentage of homicides involving firearms to 77 percent in 2020, from 73 percent in 2019 and 67 percent in 2010.

And in another troubling data point identified by CCJ analysts, the percentage of Black victims increased by 6 percent in 2020, while the percentage of white and Latinx victims has decreased, by 6 percent and 9 percent respectively.

Although recent headlines have focused on gang killings, the percentage of offenders and victims aged between 30 and 39 has been “steadily increasing over the past decade” to a current level of 24 percent, while the number of  victims 19 and younger dropped slightly from 17 percent in 2019 to 15 percent in 2020.

The complete CCJ analysis can be downloaded here.

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