Transit police execute rider

[CmdrWilkens]

just so long as it hasn't reached this level...

You know that that was actually a legal execution right? The guy had papers on himidentifying him as a Major in the NVA however he was operating in a combat zone while in civilian clothes making him a spy and subject to execution without trial under the Geneva Convention.

[Enigma]

Another video here, with a better angle. Still looks crazy.

At first I based my reaction on the article but after seeing the video, well it looked like the cop screwed up bad and he knew it judging by his reaction after shooting Oscar. I can buy the excuse that was floating around about him meaning to use the taser instead. Even if that was true, using the taser on Oscar would still be considered using excessive force and police brutality. Nevertheless he still should be charged and serve some time in jail.

[CmdrWilkens]

Here's the real kicker:

From US v Rabinowitz 339 US 63:

What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are "unreasonable" searches, and, regrettably, in our discipline, we have no ready litmus paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.

So yes there are a thousand different tests and standards but there is no "gold standard" by which a conclusive statement can be made about the validity of evidence gathered with or without a warrant (evidence gathered with a warrant obviously has a much greater likelyhood of passing the reaosnable test but the nature of obtaining the warrant can lead to suppression occasionally).

In this case its tough to say whether the police have exceeded their authority in so far as federally protected rights and I am far from conversant enough with California and BART-specific (the agency must operate under a certain legal framework to allow for cross-jurisdictional police work) requirements to say whether they did so for rights protected therein. In other words we can argue here but it may be more useful for us to let this play out in the trial court where it almost certainly will.

[The Yosemite Bear]

yes, I know that the tet offensive shooting was a legal kill, it still made a bad picture for us during the period.

[Havok]

I've stayed out of this because even though I live here, surprisingly, I don't care much. Old hat and all. However, when this all blows over, if anyone is interested, remind to go over some of the things the OPD Officers that have been working and following the case have been saying and talking about with us. It is fairly interesting. Needless to say, they are pissed they have to deal with this. Working a Harley parts counter is like tending bar.

Edit for clarification: They always ask us not to say anything until the initial shit storm blows over and all the facts are out.

[Alyeska]

From the videos I have seen of the incident, it looks to me like the cop did not mean to shoot that man. His body language screams "oh shit, what the fuck did I just do" immediately after the shot occurs. From my perspective, there are no grounds for a murder charge.

As to what is going on right now, the cop in question has already resigned. I have no doubt that due to the public attention, he is going to trial.

[General Zod]

From the videos I have seen of the incident, it looks to me like the cop did not mean to shoot that man. His body language screams "oh shit, what the fuck did I just do" immediately after the shot occurs. From my perspective, there are no grounds for a murder charge.

As to what is going on right now, the cop in question has already resigned. I have no doubt that due to the public attention, he is going to trial.

As far as I know, in order to count as manslaughter one of the big elements involved is that the defense needs to show the crime was unavoidable. Which really does not seem to be the case here given it could have been easily prevented. Isn't it regulation that any armed officer has to have their weapon's safety on before using it? I'll admit I'm not terribly familiar with the design of police issued tasers, but wouldn't the safety mechanisms be completely different, making it almost impossible to not realize that you weren't using the same thing? It also begs the question why he felt he had to fire it almost immediately on drawing without bothering to ensure that it really was the taser and not his gun.

[Kamakazie Sith]

It's pretty fucking plain when you read the fucking case law examples provided and even the wonderful selection of links offered by KS, all of which state that they may request recordings but that the plain view seizure exception is limited to contraband, i.e. plainly illegal items or items which the officer has a probable cause to believe are such.

You think ignoring my replies that address your claim here are going unnoticed. If there is an official challenge on SDN, then I am issuing it to you right fucking now. One of the three links I provided uses the word contraband exclusively, but the other two use the word evidence. This is common among internet websites whose publishers are either too lazy or missed something which is why I did what I should have done in the first placed and referenced case law specifically Horton v. California because it is a landmark case which redefined the plain view doctrine, and it details that police may seize evidence, weapons, or contraband in plain view without a warrant if it meets three criteria. Either address this or concede.

Interestingly, by this sort of messing about the 4th amendment could be argued to exclude all video collected by the officers involved. Since it was collected in an improper manner...gee, I'm sure such a situation would really upset them.

Digital media is already up for discussion, but until it is ruled as illegal they did nothing wrong, and assuming it is eventually ruled illegal it doesn't apply retroactively the most that will happen is that the evidence would be surpressed which isn't exactly what those looking for justice here would want.

[Alyrium Denryle]

This is common among internet websites whose publishers are either too lazy or missed something which is why I did what I should have done in the first placed and referenced case law specifically Horton v. California because it is a landmark case which redefined the plain view doctrine, and it details that police may seize evidence, weapons, or contraband in plain view without a warrant if it meets three criteria. Either address this or concede.

While Keevan is wrong, and yes Keevan you are, I read the full decision in question... So are you Sith. The Horton decision as I laid out above, only applies in cases where a Warrant has already been issued but the police find incriminating evidence they did not list pursuant to the warrant application. In fact the Horton decision stresses this very strongly.

I have also laid out how this instance violates at least one and possibly two prongs of the Horton Test.

Digital media is already up for discussion, but until it is ruled as illegal they did nothing wrong, and assuming it is eventually ruled illegal it doesn't apply retroactively the most that will happen is that the evidence would be surpressed which isn't exactly what those looking for justice here would want.

Actually as far as I remember my constitutional law, if a form of evidence is ruled unconstitutional, all cases involving that evidence are subject to an appeal because the evidence used is retroactively declared illegal, because the violation occurred in every case involving before it was brought before SCOTUS.

[Kamakazie Sith]

You know, I am actually reading the supreme court cases that led to this, and they do not say what you claim. It was never intended to apply

You're reading the actual document or the cliff note version? Both can be found on the internet.

First off, the Horton case only discusses searches authorized by a warrant that find stuff the cops did not list on the warrant applicartion, in fact the case goes on at length on how even though the police did not have warrant for the objects seized, the search is itself legal because of the specific nature of the warrant. It specifically does NOT authorize warrantless seizures.

True, but it also redefined what criteria must be met for evidence to be seized under the plain view doctrine.
-----------------------------------------
Thus, the significant elements in any plain view doctrine seizure are: (1) the officer must already have lawful presence in an area protected by the 4th Amendment. In a house, that would mean that the officer must have entered with a warrant, exigency or consent. (2) The officer must observe an item in plain view. (3) The officer must immediately recognize the item as evidence or contraband without making a further intrusion. It should be recognized that officers routinely make plain view observations, but that does not necessarily mean that the item may be seized unless the officer has met the elements above.
-----------------------------------------

I don't know what else to tell you. Look up plain view doctrine under its current understanding and you'll see that it includes evidence. Basically, it says that a warrantless seizure is authorized if those three criteria are met. Now, looking at those three criteria the officers in this case were 1 - in a public area, and therefore there lawfully, 2 - they observed the recording devices in plain view pointing at them, 3 - given the circumstances would immediately recognize the item as evidence of the event that just happened.

Moreover, this case fails at LEAST the third prong of the test, even if we expand it to include searches not already allowed by warrant. Why? Because the incriminating nature of people's cameras and cell phones... against them I would like to stress, is not immediately apparant. It is not an Uzi while investigating an Uzi shooting, or pictures of tortured victims.

Again, probable cause. They had probable cause that those people who were pointing recording devices at them were probably recording.

The second prong of the test might be violated because the police may well not have a legal right of access to the items. Why? because the search was without warrant

Plain view doctrine is one of the exceptions to obtaining a warrant. Get this through your head. It happens all the time, and is consistenly upheld.

(cont) and frankly, the seizures themselves especially given the probable (due to the rapidity with which they had to take the cameras and phones) lack of recipts for the items, likely to themselves have been a crime. You yourself have admitted if I recall that the circumstances were a tad shady. They could have easily stopped the train and called in another unit to handle investigation, perhaps have IA do it. Instead they tried to rapidly take as much as they could.
[/quote]

This is speculation on your part, and again as I've said it doesn't matter. They were doing their job. Now, if you or others can find something in their policy or law which forbids witnessing officers from taking part in the investigation by identifying witnesses and collecting evidence then I'll be happy to hear it and concede, but until then you're just giving your opinion on the way things should be which is not what I'm discussing. I'm discussing how things are/.

The obvious conflict of interest here probably invalidates the search.

Again find the case law or policy please.

[Kamakazie Sith]

Actually as far as I remember my constitutional law, if a form of evidence is ruled unconstitutional, all cases involving that evidence are subject to an appeal because the evidence used is retroactively declared illegal, because the violation occurred in every case involving before it was brought before SCOTUS.

My last post addresses your other concerns.

You're correct here, but what I meant was the officers are immuned from civil or criminal action because they executed their decisions in good faith with the current understanding of the law.

[Kamakazie Sith]

This would matter if the police in general had his name and already ran it for his background and new his criminal record and that said criminal record was for violent offenses. Then the police would have reason to be a little more paranoid. But like I said this was one guy standing up while everyone else was sitting down and there were several officers around him.

In the best of circumstances it will amount to this officer being a complete moron who mixed up his gun with his taser. But then considering the number of officers there and the fact that the suspect was already pinned down what would have been the justification for using taser? Which then puts another nail in the coffin for officers carrying tasers. They already use them more often than justified and if an officer can mix the two up then they are too dangerous to be in the hands of the police.

I have to point out that until you've actually restrained a resisting person then you have no fucking clue how difficult it can be to get someones hands into handcuffs. That's why pain compliance techniques are used in order to *gasp* gain compliance. While I agree that shooting him with the probes would be excessive a drive stun by the taser (without probes) would not have been. They also could have manipulated pressure points or used personal physical force on large muscle groups to gain compliance.

[General Zod]

This would matter if the police in general had his name and already ran it for his background and new his criminal record and that said criminal record was for violent offenses. Then the police would have reason to be a little more paranoid. But like I said this was one guy standing up while everyone else was sitting down and there were several officers around him.

In the best of circumstances it will amount to this officer being a complete moron who mixed up his gun with his taser. But then considering the number of officers there and the fact that the suspect was already pinned down what would have been the justification for using taser? Which then puts another nail in the coffin for officers carrying tasers. They already use them more often than justified and if an officer can mix the two up then they are too dangerous to be in the hands of the police.

I have to point out that until you've actually restrained a resisting person then you have no fucking clue how difficult it can be to get someones hands into handcuffs. That's why pain compliance techniques are used in order to *gasp* gain compliance. While I agree that shooting him with the probes would be excessive a drive stun by the taser (without probes) would not have been. They also could have manipulated pressure points or used personal physical force on large muscle groups to gain compliance.

Having seen one of the videos, it doesn't look to me like he was putting up a whole lot in terms of any kind of resistance; at least none that we can see. Which makes me wonder why any type of weapon was needed at all.

[Kamakazie Sith]

Having seen one of the videos, it doesn't look to me like he was putting up a whole lot in terms of any kind of resistance; at least none that we can see. Which makes me wonder why any type of weapon was needed at all.

This is exactly what I mean. People who have no experience in dealing with people who resist have no clue. No offense to you, Zod. However, you can resist by clenching up and holding preventing your hands from being placed into handcuffs. This does not require overt movements, nor does it require intense hand to hand combat.

[Big Phil]

This would matter if the police in general had his name and already ran it for his background and new his criminal record and that said criminal record was for violent offenses. Then the police would have reason to be a little more paranoid. But like I said this was one guy standing up while everyone else was sitting down and there were several officers around him.

In the best of circumstances it will amount to this officer being a complete moron who mixed up his gun with his taser. But then considering the number of officers there and the fact that the suspect was already pinned down what would have been the justification for using taser? Which then puts another nail in the coffin for officers carrying tasers. They already use them more often than justified and if an officer can mix the two up then they are too dangerous to be in the hands of the police.

I have to point out that until you've actually restrained a resisting person then you have no fucking clue how difficult it can be to get someones hands into handcuffs. That's why pain compliance techniques are used in order to *gasp* gain compliance. While I agree that shooting him with the probes would be excessive a drive stun by the taser (without probes) would not have been. They also could have manipulated pressure points or used personal physical force on large muscle groups to gain compliance.

Having seen one of the videos, it doesn't look to me like he was putting up a whole lot in terms of any kind of resistance; at least none that we can see. Which makes me wonder why any type of weapon was needed at all.

What video were you watching? The guy was CLEARLY resisting the officers and they were having to manhandle him to make him comply with them. Maybe in the three seconds before he was shot he stopped, but the minute or so leading up to the shooting, he was NOT being compliant.

[Alyrium Denryle]

You're reading the actual document or the cliff note version? Both can be found on the internet.

Full decision.

True, but it also redefined what criteria must be met for evidence to be seized under the plain view doctrine.
-----------------------------------------
Thus, the significant elements in any plain view doctrine seizure are: (1) the officer must already have lawful presence in an area protected by the 4th Amendment. In a house, that would mean that the officer must have entered with a warrant, exigency or consent. (2) The officer must observe an item in plain view. (3) The officer must immediately recognize the item as evidence or contraband without making a further intrusion. It should be recognized that officers routinely make plain view observations, but that does not necessarily mean that the item may be seized unless the officer has met the elements above.
-----------------------------------------

I don't know what else to tell you. Look up plain view doctrine under its current understanding and you'll see that it includes evidence. Basically, it says that a warrantless seizure is authorized if those three criteria are met. Now, looking at those three criteria the officers in this case were 1 - in a public area, and therefore there lawfully, 2 - they observed the recording devices in plain view pointing at them, 3 - given the circumstances would immediately recognize the item as evidence of the event that just happened.

I will concede after a check through Findlaw (among other sources) that the Plain View Doctrine is presently understood to include warrantless seizures outside of a home. However will still contest that due to a conflict of interest inherent in the situation, or at least the appearance of one to any rational being, that the police involved should have had a third party do their evidence collection and thus may not have met the first criteria (though this will probably have to be determined at trial, I am, not aware of case law to this effect, this could be precedent setting. I dont know)

I would also argue that it is not immediately obvious that cameras and phones would contain incriminating evidence that would warrant (pun intended) rapid seizure of the items in question. Moreover, given the time constraints, it is very likely that the evidence is question was not properly handled given the circumstances and that chain of custody might well be an issue. It may be speculation, but even you must admit that it is rather valid speculation considering the circumstances.

Again find the case law or policy please.

Most conflicts of interest laws as you are probably aware related to monetary issues (though if they exist with monetary conflicts of interest it is not much of a stretch to think at least policies relating to criminal conflicts of interest exist). I will see what I can find.

[Glocksman]

From the videos I have seen of the incident, it looks to me like the cop did not mean to shoot that man. His body language screams "oh shit, what the fuck did I just do" immediately after the shot occurs. From my perspective, there are no grounds for a murder charge.

As to what is going on right now, the cop in question has already resigned. I have no doubt that due to the public attention, he is going to trial.

As far as I know, in order to count as manslaughter one of the big elements involved is that the defense needs to show the crime was unavoidable. Which really does not seem to be the case here given it could have been easily prevented. Isn't it regulation that any armed officer has to have their weapon's safety on before using it? I'll admit I'm not terribly familiar with the design of police issued tasers, but wouldn't the safety mechanisms be completely different, making it almost impossible to not realize that you weren't using the same thing? It also begs the question why he felt he had to fire it almost immediately on drawing without bothering to ensure that it really was the taser and not his gun.

Homicide laws vary somewhat from state to state, so California's may vary.
In my state the applicable charge would either be involuntary manslaughter or reckless homicide if he meant to draw his taser and pulled the gun by mistake.

Obviously, if he intended to pull the gun then voluntary* manslaughter is the charge to press since he lacked even the slightest visible excuse to knowingly draw a firearm.

If it can be proven he intended to shoot the guy before the confrontation, then he lacks the 'sudden heat' element needed in my state for a manslaughter charge and murder is the appropriate charge to be filed.

As far as tasers go, police tasers are often designed to mimic firearms as far as handling goes in order to make the actions of using one more 'natural' under stress to an officer already trained in pistol handling.
Most civilian tasers are designed to not handle like a pistol because of the obvious problem of a civilian meaning to use a taser and instead drawing a pistol.

The problems with this are in situations like the one under discussion and in a case where the cop intends to draw and fire his service pistol because his life is under immediate threat and instead draws the taser.

From watching the video, I honestly think the cop meant to draw the taser and due to poor training drew his pistol instead
If I were that cop's lawyers, I'd be subpoenaing everything the BART transit police have WRT both firearm and taser training procedures.


*My state uses the term 'sudden heat' to differentiate voluntary manslaughter from murder.
If I shoot you in a sudden fit of rage and no premeditation was involved, that's voluntary manslaughter.
If I intend to shoot you and do so absent 'sudden heat' being the motivating factor, that's murder.

[Glocksman]

Addendum:

'Sudden heat' is also used when referring to actions taken in the 'heat of the moment'.
An example would be reacting to an unarmed non-life threatening attack by shooting your attacker.

If you walk up to me and punch me squarely in the face and I draw and shoot you on the spot, that's voluntary manslaughter in my state because I didn't plan on killing you prior to the provocation and reacted in the heat of the moment.

Of course if you punch me in the face and I shoot you an hour later, I've had time to think about it and that would be murder.

[Coalition]

Out of curiosity, could one of the officers have simply told the crowd to send the photos/videos/etc to an email address of the police department (at the very least the webmaster) with the location in the subject? He could have told them that if the videos/pictures/other stuff is released online then it will take longer to find an impartial jury. He'd have to combine that with a 'confirm received' type of message that tells what was received, size of the attachment, etc.

Combine that with a plea to the local news agencies to now show any of the imagery, as it could affect jury selection.

The people watching get to keep their cameras, and the police get the evidence (likely within a few minutes, sent directly from the phones).

Would the above have worked?

[Kamakazie Sith]

Out of curiosity, could one of the officers have simply told the crowd to send the photos/videos/etc to an email address of the police department (at the very least the webmaster) with the location in the subject? He could have told them that if the videos/pictures/other stuff is released online then it will take longer to find an impartial jury. He'd have to combine that with a 'confirm received' type of message that tells what was received, size of the attachment, etc.

Combine that with a plea to the local news agencies to now show any of the imagery, as it could affect jury selection.

The people watching get to keep their cameras, and the police get the evidence (likely within a few minutes, sent directly from the phones).

Would the above have worked?

Courts sometimes like to have the actual device. In my department chances are if you use your own digital camera to document the scene of a crime then chances are it won't be yours for very much longer if it goes to court. The red tape of the US court system makes every step subject to scrutiny.

[Graeme Dice]

This is speculation on your part, and again as I've said it doesn't matter. They were doing their job. Now, if you or others can find something in their policy or law which forbids witnessing officers from taking part in the investigation by identifying witnesses and collecting evidence then I'll be happy to hear it and concede, but until then you're just giving your opinion on the way things should be which is not what I'm discussing. I'm discussing how things are/.

Are you aware that the primary reason you are assumed to be supporting police brutality is that you continue to post this legalistic nonsense? Nobody except police officers, lawyers, and other people with childlike ethical development consider whether something is legal to be a valid determiner of morality. This is an extremely common response by police and their supporters whenever a case of police brutality pops up. "Oh, it was legal/within policy, so its okay that Joey got shot/beat up/tasered." Allowing the friends of a murderer to collect evidence and keep it out of the public eye is a clear conflict of interest to any rational person.

[General Zod]

Are you aware that the primary reason you are assumed to be supporting police brutality is that you continue to post this legalistic nonsense? Nobody except police officers, lawyers, and other people with childlike ethical development consider whether something is legal to be a valid determiner of morality. This is an extremely common response by police and their supporters whenever a case of police brutality pops up. "Oh, it was legal/within policy, so its okay that Joey got shot/beat up/tasered." Allowing the friends of a murderer to collect evidence and keep it out of the public eye is a clear conflict of interest to any rational person.

Exactly where has anyone been discussing morality? Pretty much the only thing that anyone's been arguing about at all throughout the entire thread was legality, period.

[Graeme Dice]

Exactly where has anyone been discussing morality? Pretty much the only thing that anyone's been arguing about at all throughout the entire thread was legality, period.

Ummm, it's pretty clear that the fundamental disagreement between both sides was in what should have happened, not what was legally the correct thing to do.

[Ender]

Exactly where has anyone been discussing morality? Pretty much the only thing that anyone's been arguing about at all throughout the entire thread was legality, period.

Ummm, it's pretty clear that the fundamental disagreement between both sides was in what should have happened, not what was legally the correct thing to do.

No, the entire thing is whether or not their seizing of the cellphones was a violation of 4th Amendment rights. Nobody has been arguing whether or not they were morally right.

[Bilbo]

Digital media is already up for discussion, but until it is ruled as illegal they did nothing wrong, and assuming it is eventually ruled illegal it doesn't apply retroactively the most that will happen is that the evidence would be surpressed which isn't exactly what those looking for justice here would want.

First off my apologies for jumping down your throat.

Second a question. Does the average police officer, one who is not in his car but is on foot, carry on his person evidence receipts? I ask because if the police quickly starting confiscating cell phones it only becomes legal if they had the proper paperwork on them to record what was taken and from whom and to give receipts.

Maybe officers carry receipts and evidence bags on their person at all time. But form every description of the situation and the time frame between the shooting and the leaving train there does not appear to be any time for an officer to run down to a car to get receipts and bags.

Without that paperwork wouldnt all the phone and the images they contain become inadmissable in court? There would be no proper chain of custody and the cops (ex-cop now) would have them thrown out of court.