Sonoma County D.A.: No criminal charges for sheriff's deputy in Andy Lopez shooting

[happyslug]

34. Or, so I sniff badges, as least I am TRYING to change things, not just complain.

One of the old rules in law is "One does NOT really understand a law, till one tries to change it". In abuse by police, the law is quite clear, the Police Officer retains the right NOT to incriminate himself (Thus does NOT have to report anything he does that MIGHT be criminal) and the law requires any prosecution for Criminal misconduct be proved beyond a reasonable doubt given all disputes as to facts to the Officer.

Thus to convict any officer of any crime you have to prove beyond a reasonable doubt that what he did exceeded his powers AND was in violation of this training. If a case can be built that whatever the Police officer did was within his training, there is no intent to commit a crime and thus no crime.

Remember to be found guilty of a crime, any one accused of a crime does NOT have to prove anything, the DA has to prove not only was the Criminal Act done, but the Defendant KNEW OR SHOULD HAVE KNOWN the act was a crime. Ignorance of the law is NOT a defense, but ignorance of a FACT is. Thus it is illegal to shoot a 13 year old with a BB gun, but if it is possible for the shooter to think the BB Gun was a real AK, then self defense kicks in. Among Civilians self defense only kicks in if the weapon is pointed to you or is going to point to you. It is the same rule for Police, but unlike Civilians, Police are permitted to confront potential criminals about their actions and be prepared for a violence response. i.e. Police can demand a 13 year old to put down a weapon, while they pull and point their pistols at him, Civilians can not actually put their pistols (if they have one on them legally) until the kid started to turn and then only if the weapon is brought to bear on them (and in most cases, Civilians have the duty to retreat from hostile situations, a duty the Police are exempt from for it is expected of police to be in hostile situations).

Now, I have advocated for years the following reforms, that are passable and may actually reduce such shootings:

1. Return Police to using Revolvers. Yes the Revolvers are slower and limited to six shots, but then you do not have 8 shoots fired, one of which missed the target. In actual shootouts between police and criminals the number of shots fires averages out to be two. Thus revolvers are sufficient for almost all police work, and in fact were the preferred Police Pistol till the 1980s. Automatics replaced Revolvers as a push to increase police firepower, but that firepower is unneeded except in very limited circumstances, and in most such circumstances other weapons, i.e. rifles, would be preferred in the first place.

2. Police have to be given a choice, if they decide to plead the fifth, the right NOT to incriminate oneself, then the duty to retreat has to be applied to them. i.e. they are treated as if they were a civilian who shot the victim. If they opt for the "Police Exemption" to such General Rule, then they MUST report everything that happened and the burden is on them that the shooting was justified.

At present the Police can claim BOTH exemptions, i.e. one that as American Citizens they have the right NOT to incriminate themselves, and thus the right NOT to say anything about what happened AND Two, the law presumes what they did was correct. i.e the shooting was justified for they are Police dealing with Criminals UNLESS there is evidence beyond a reasonable doubt that what they did was unlawful.

Years ago I ended up reading one of the first cases in Pennsylvania that justified a Police Shooting. It was around 1901 to 1909 if I remember right. It was out of Somerset County Pennsylvania. In that case a Sheriff Deputy had shot a person he was trying to arrest and had been charged with Murder for that killing. The Deputy went on the stand and described what happened (Thus giving up his Fifth Amendment right NOT to incriminate himself). The Jury after listening to him, voted he was not guilty. The Case hit the Case books for the Trial Court had require him to testify to justify the shooting and thus that decision was recorded in the list of decisions of the Courts of Pennsylvania. It is the first of many cases involving shooting by police and other law enforcement officers in Pennsylvania. It is notable that the Court REQUIRED the officer to testify as to why he shot the person he was trying to arrest.

I bring up that case for the so called Police Exemption to testify to justify any shootings had by 1900 NOT yet become the law in the US (This was a 1900 era case). Subsequent to that case, other Courts have expanded that exemption to the general rule as to shootings to the present one where not only does a DA have to prove the Shooting was unlawful, but the police retain the right NOT to testify. In that early 1900 case, the Deputy HAD testify as to why he had opened fire. The Judge ruled the Deputy had to testify to justify the shooting, or the Judge would have given instructions to the Jury to handle the case just like as if the Deputy had been a Civilian in the same situation.

Please remember, it is only in the 1920s that the US Supreme Court started to apply the Federal Bill of Rights to the States, thus when the above case was being held, the 5th Amendment's restrictions on forcing one to testify had NOT yet been applied to the States. The Pennsylvania Constitution had a similar provisions, but it was up to the Pennsylvania court to interpret that provision and the Police Exemption had NOT yet been developed (This was also the era of Private Police in Pennsylvania, so most cases involving violence by police involved such private police, whose primary protection method was being paid by their employers to skip the state. That remain the state till the Pennsylvania Coal and Iron Police were finally outlawed in the 1920s, thank you Gifford Pinchot).

Sorry, as long a Police can plead the Fifth AND still be able to use the Police exemption to any general law of Self Defense, such shootings will continue. The real check on such misuse of those two rules of law has been people suing those officers and their employers. In such lawsuits, the above defenses are no longer valid. The Officers can be forced to testify OR if they do not, the jury can take that refusal anyway they want (Unlike in Criminal Cases, where Juries MUST give any benefit of refusing to testify to the Defendant).

Thus right now, it is civil lawsuits that are the main control on the Police. That has been the case since at least the 1950s. Do not expect the State Legislature to do anything about Police Shootings, that would require the Legislature to take on the Police Lobby and the Various States Legislatures just will NOT do it. On the other hand, the Courts have to face these cases and address them as they come up to the Judges. The Judges may also want to support the Police, but they can NOT avoid the subject like the State Legislatures can when it is a case they have to decide. Judges like to defer to Juries on such difficult cases, and as the cases get worse, Juries give higher awards. The Trial Courts tend to uphold such awards and the Appeal courts also tend to uphold them (except if the award are NOT for Compensation but are "Punitive Damages" i.e. an award of damages no tied in with any actual harm but to punish the defendant for his wrongful actions. The Courts have impose restrictions on such punitive awards BUT not for actual damages awards, except for pain and suffering for awards for pain and suffering is subject to a lot of opinion of the jury).

Thus you hear from me and others, do NOT expect the Criminal Justice System to do anything in cases like this one, the Civil Side is where you have to look for justice. You may want someone to go to Jail, but as the law is today, that is almost impossible.

Side Note: Gifford Pinchot was Theodore Roosevelt's first head of the then Bureau of Forestry Federal (Now the US Forest Service). He was fired under Roosevelt's successor Howard Taft for insubordination, when Pinochet opposed the return of some Forest land to a coal company to be stripped. The return of the land was authorized by the Secretary of the Interior, thus Pinchot's boss. Pinchot was big on conservation. He was a close friend of John Muir (Through they disputed on how to use the forest, Pinchot said to get popular support for good forest, you must consider economics and how to use those forests, Muir was more a 100% conservationist, these two good friends had many debates on this during their life time).

Later on Pinchot became Governor of Pennsylvania, January 20, 1923 to January 20, 1927, and again from January 20, 1931 to January 20, 1935. In Pinchpt's first term, Pinchot changed the Pennsylvania Code of Regulations to become one of the most efficient such codes of regulations in the Country. Pinchot outlawed the Coal and Iron Police (Often called the only true terrorist organization ever formed in the US).. Pinchot started the Pennsylvania Highway Patrol, a Police force to patrol the roads of Rural Pennslyania. Pinchot formed a second state police force, rather then expand the exisiting Pennsyvania State Police, For the Pennsylvania State Police of 1903 to 1937 was tied in with and worked with the Coal and Iron Police in Labor Disputes, and thus was hated almost as much as the Coal and Iron police. Under Pinchots Democratic Successor in 1938, the two state Police forces were merged under the name "Pennsylvania Motor Police" and in 1947 was resumbed the name "Pennsylvania State Police", a name they retain to this day, even through most of the officers, after the merger of the two state police forces, had been Highway Patrol not State Police.

Pinchopt in his first term proposed rural electrification, which was denounced as Socialism. Pinchot also stated the Pennsylvania State Forest system, which is 2-3 times as large as the Federal Forest System in Pennsylvania (Pinchot also arranged for the Purchase of and formation of Allegheny National Forest, the only Federal Forest in Pennsylvania).

In Pinchot's second term, Pinchot wanted to retain prohibition, but that was defeated so Pinchot developed the Pennsylvania State Store System, which the GOP hates to this day for it is a Government owned Business that makes a huge profit and regulates who gets hard liquid in Pennsylvania (Thus it is beer that is used by teens to a much higher degree then hard liquor in Pennsylvania for Beer is sold by Private Enterprise not the state).

Pinchot in his second term in office also convinced FDR, to give Pennsylvania money to improve its rural roads, "To get the Farmer out of the mud" AND to implement FDR's Rural Electrication Program in Pennsylvania. Pinchot was also a big supporter of FDR's Civilian Conservations Corps (CCC) and Work Project Administration (WPA). Both programs were opposed by other Republicans (and lead to the Next Governor after Pinchot to be a Democrat, the first Democratic Governor in decades in Pennsylvania, remember I am discussing the 1930s not today). Thus the GOP came to hate Pinchot, for he showned how one can be a Republican and work with a Democratic President.

Pinchot would also run for Senator at least twice and Governor one more time, but as a good Republican, Pinchot would never switch parties and thus was never able to get those nominations (The Old Guard GOP of Pennsylvania kept denying him those nominations for the Old Guard GOP hated Pinchot's social programs). Pinchot stayed a Republican till the day he died, what a waste for the GOP had no use for someone like him even then. Pinchot won election due to massive support from Rural Residents in Pennsylvania and decent support from the Pittsburgh area. Pinchot was always opposed by Phidadelphia Area Republicans.

Second side note: Till the 1960s Phiadedphia was a GOP City, then the Republicans move to the Suburbs and Philly itself turned Democratic, but its Suburbs and surrounding rural areas remained Solidlly GOP. Western Pennsylvania around Pittsburgh, was different. Pittsburgh turned Democratic in the 1920s. Republicans did moved to the suburbs after the 1920s, but ran into the Rural Democrats that controlled Rural Western Pennsylvania at that time period. Thus the Suburbs had Democratic majorities, but a Republican could get elected in the suburbs (But NOT in the city iteself). Rural Western Pennslyvania was and remain Democratic, but socially conservative Democrats (They oppose abortion and Gay rights for example). Such Rural Western Pennsylvanians area also economic liberals, i.e they like unions, Social Security, Public Education and other Social Welfare programs. It is one of the big differences between the two sides of the state. The make up of each area is so different that state wide canidates run different commercials in both areas to cater to the different types of voters in both areas.

http://en.wikipedia.org/wiki/Gifford_Pinchot

http://en.wikipedia.org/wiki/John_Muir