Tased and confused

Oh, the ubiquitous taser. A nonlethal alternative to the trusty sidearm.

Except that isn't the way it turned out. As Scott Greenfield reminds us, the first rule of policing is to make it home for dinner alive. That rule trumps all others for those who wear a badge.

The vast majority of officers never fire their weapons except at the gun range. And that's the way it should be. Deadly force should be the ultimate last resort - because if you're wrong, there's no going back.

And what that means is instead of slowly escalating the use of force, in order to make sure they make it home for dinner, officers start with the taser instead of using it as the last best alternative to deadly force.

Up in Fort Worth, Texas, police executed a "no-knock" warrant on a house suspected to contain the bones of a cocaine distribution operation. The warrant was signed at 3:35 pm on Thursday. When they arrived, the police kicked in the unlocked front door and shortly thereafter had Jermaine Darden face-down on the floor.

Mr. Darden weighed over 300 pounds and was asthmatic. While laying on his stomach, Mr. Darden began to have a hard time breathing. He tried to roll over to his side to make it easier to breathe.

The police, accustomed to folks asking how high when commanded to jump, never thought that a heavy man with a breathing problem might be in a dangerous position on his stomach. Instead of viewing Mr. Darden's actions as an attempt to breathe, they determined he was resisting arrest. Instead of listening to the other people in the house who knew Mr. Darden's problems, they made the decision to show Mr. Darden that he wasn't to do anything without their permission.

So, despite the fact that the officers outnumbered the people in the house, and despite the fact that the officers had the ability to use deadly force, they tased Mr. Darden.

And, at 5:06 pm that afternoon, Mr. Darden was prounouced dead in the emergency room at John Peter Smith Hospital.

Now it was time to concoct a story to explain how something could go so wrong. Mr. Darden had to be tased. He was resisting arrest. The officers' safety was endangered. They only had one choice - either they could tase Mr. Darden or they could shoot him at point blank range. Knowing that not even the most naive person would believe that was warranted, they pulled out the taser.

Let's face it. Mr. Darden was a bad guy. He was in a house that served as the distribution center for a coke operation. Who you gonna believe in that scenario? The police who were shutting down a drug operation or a dope dealer?

And that's exactly what they expect you to do.

Give 'em a foot and they'll take a mile

Yesterday, Ohio criminal defense attorney Jeff Gamso wrote on his blog Gamso - For the Defense about the case of Robert Stevens who was charged with a criminal offense for marketing videos of dog fights. Mr. Stevens was being prosecuted under a law designed to criminalize so-called "crush" videos that depicted small animals being crushed to death.

Los federales decided that the prohibition on crush videos should extend to videos of dogs being hurt, maimed and killed in dogfights. The Supreme Court saw otherwise and declared the law unconstitutional.

Mr. Gamso's premise was that governments enact bad laws because of bad facts that, despite promises the scope of the law will be limited, often are used in ways not foreseen at the time the law was passed. This overextension of the penal code is a grave threat to our liberty and must be fought at every opportunity.

Let's face it, anytime you can get the National Association of Criminal Defense Lawyers and the Heritage Foundation to agree on something -- you've got a problem. And that's just what happened back in May when the two organizations teamed up to draft Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. The problem, according to the paper, is the extension of so-called strict liability crimes in the white-collar and environmental arena. There is no question that mistakes happen in the business world -- but since the basic calculus of criminal law is Crime = Act + Intent, subjecting persons to criminal prosecution who demonstrated no intent to break the law is either absurd or frightening.

And then there's the good ol' automobile that is now, according to prosecutors in vehicular crimes, a deadly weapon.

According to Article 1.07(a)(17) of the Texas Penal Code, a deadly weapon is (a) "a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury" or (b) "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."

It's that second definition that can make everything from a car to a can opener to a pencil a deadly weapon. The word capable completely eliminates the need to show a person intended to use the object in question as a deadly weapon. The word capable also enables the government to overcharge people accused of committing criminal acts, thereby putting more pressure on them to plead out to what they should have been charged with in the first place.

Somehow I'm not thinking that's not what was intended.

Significant decisions by the Courts of Appeal, August 2008

Honking your horn too loudly could give rise to reasonable suspicion

In Rogers v. State (No. 2-06-345-CR), the Fort Worth Court of Appeals held that the act of honking one's horn loudly and continually while screaming and making wild gestures gives an officer reasonable suspicion to initiate a traffic stop.

At approximately 2:30am on March 4, 2006, Sgt. Kelly Velder of the Arlington Police Department heard a car horn repeatedly blowing for up to 15 seconds at a time, and he saw the driver leaning into the steering wheel, shouting and gesturing wildly at an intersection.  He detained the driver and, after conducting his investigation, arrested her on suspicion of DWI.  

The Court held that making unreasonable noise in a public place was disorderly conduct and gave the police reasonable suspicion to conduct a temporary investigative detention.

A prescription drug and its metabolites are dangerous drugs

In Harkins v. State (No. 2-06-412-CR), the Fort Worth Court of Appeals held that a drug that may only be dispensed with a prescription meets the statutory definition of a dangerous drug.

On March 25, 2006, a concerned citizen called 911 to report that the defendant was driving erratically.  A blood test revealed soma and its metabolite in her system.  Ms. Harkins was charged with DWI -- caused by a dangerous drug.  At trial, the defendant argued that her impairment was not caused by soma but was caused by physical ailments and drowsiness due to sleep apnea.

The defendant argued that the metabolite of soma was not a dangerous drug by the statutory definition, but the Court held that since soma could only be dispensed by prescription, its metabolite was also a dangerous drug.

Putting another motorist in actual danger can give rise to a finding that a car was used as a deadly weapon

In Woodall v. State (03-05-00850-CR), the Austin Court of Appeals held that there must be evidence that another person (or persons) were actually in danger to uphold a finding that a vehicle was used as a deadly weapon.

On February 8, 2003, another driver  witnessed the defendant driving erratically.  The witness saw the defendant hit a barrel divider, almost hit the witness' car and then swerved, hit the curb on multiple occasions and kept driving. The witness followed the defendant to a restaurant and reported what he saw to Officer Mitchell.  The officer approached the defendant and asked him some questions.  He then went outside and looked at the defendant's vehicle -- seeing scratches that seemed consistent with hitting a barrel divider.  Officer Mitchell administered field sobriety tests and arrested defendant on suspicion of DWI.

A jury convicted the defendant of felony DWI and found that he was using his vehicle as a deadly weapon.

Section 1.07(a)(17)(B) of the Texas Penal Code defines deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."  The Court held that as the defendant almost hit the witness that the witness was in actual danger at the time the defendant was driving.

Failing to maintain a single lane by itself is insufficient to warrant a traffic stop

In Fowler v. State (No. 2-06-06183-CR), the Fort Worth Court of Appeals held that a driver's failure to maintain a single lane absent evidence that it was unsafe to do so is insufficient to give an officer reasonable suspicion to detain the driver.

The Court also held that reasonable suspicion cannot be based on an officer's mistaken understanding of traffic laws.  Section 545.060(a) states that a driver shall drive within a single lane and may not move from that lane unless the movement can be made safely.  As the officer failed to produce any evidence that the defendant's movements were not made safely, there was no traffic code violation.

The Court did say that the failure to maintain a single lane when coupled with a driver's leaving a bar, driving into oncoming traffic or weaving over an extended period of time would, however, give an officer reasonable suspicion.

Weaving into oncoming traffic, however, is 

In Keenan v. State (No. 06-08-00086), the Texarkana Court of Appeals held that failing to maintain a single lane and swerving into oncoming traffic did give rise to reasonable suspicion.