I want to discuss how, at night, someone outside a moving vehicle can observe someone inside the vehicle and reasonably determine that the passenger has “move[d] his body as if he were reaching for a weapon.” This observational conclusion seems key to the policeman’s decision to open fire (in which other police immediately joined) upon Sean Bell and his friends (all of whom were unarmed), and to the Judge’s decision to acquit the policemen. Before discussing this point, some background.

This morning at Queens County Criminal Courts Building in New York City, Judge Arthur Cooperman acquitted three NYPD officers charged with manslaughter and reckless endangerment after an eight week bench trial.

Sean Bell was killed by a 50+ bullet barrage as he left his bachelor party at the Kalua Cabaret with friends Joseph Guzman and Trent Benefield who were wounded multiple times in the shooting.

Officers Michael Oliver, 36, and Gescard Isnora, 29, stood trial for manslaughter while Officer Marc Cooper, 40, was charged only with reckless endangerment. Two other shooters weren’t charged. Oliver squeezed off 31 shots; Isnora fired 11 rounds; and Cooper shot four times.

The defense, which requested a non-jury trial, relied upon self-defense (statute text, see Sec. 35 et. seq.) as justification for the shooting. The District Attorney’s Office, which found itself in the unusual position of prosecuting city police officers (but did not opt to appoint a special prosecutor) had to prove beyond a reasonable doubt that self-defense was not justified.

Judge Cooperman read his opinion (transcript) from the bench. Let’s examine that opinion to deduce the facts as the Judge found them to be after hearing the evidence. The police were there undercover, investigating possible prostitution at the club. One officer witnessed a verbal altercation between Bell’s group (including Guzman) and another group of men.

And, the court finds, another threat was made by Joseph Guzman to retrieve a gun [from a car outside]. At that point, nothing of a criminal nature had taken place. But, having witnessed that provocative confrontation … the undercover officers became concerned and followed the group around the corner to Liverpool Street [where the three men got into the Nissan Altima].

…

The Altima, which was driven by Mr. Bell, sped away from its parked position, struck defendant Isnora [who claimed the car bumped his leg] and collided head on with the [unmarked] police van that had entered Liverpool Street. The Altima then went into reverse, backed up onto the sidewalk, struck a gate and then went forward and to the right, striking the police van again. As this was happening, defendant Isnora — who testified in the grand jury — observed Mr. Guzman, the front passenger, move his body as if he were reaching for a weapon.

Defendant Isnora yelled, “gun” and fired.

Other officers, indicted and unindicted, joined in from different locations on the street.

Note that nowhere in the opinion did the Judge find that any officer ever identified (or successfully identified) himself as such to the men in the car — a point that was disputed at the trial. Bell’s group could have easily believed they were being assaulted by persons following them out of the club. For a very nice NYTimes graphical walk-through of the incident, see here (but remember this is not evidence).

Judge Cooperman could have relied on the ramming of the unmarked (see photos from previous link) police van as a display of deadly force justifying a like response — but he did not so rely. Neither did he rely on the bumping of officer Isnora as Bell accelerated away in the Altima. Not surprising really, since either of these incidents — especially at the low speed at which they must have happened — is arguably not demonstrative of deadly force. Instead, the key evidence relied on to justify the gunfire is that which seems most unreliable: Isnora’s claim that he saw a passenger “move his body as if he were reaching for a weapon,” upon which Isnora yelled “gun!” and opened fire.

Think about this for a moment. It was dark. There is no indication that an interior light was on inside the Altima. Any outside lighting would reflect off the car windows, making observation of the interior more difficult. As the Altima moved around, presumably trying to maneuver/muscle past the blocking van, what could Isnora really have seen? What sort of body movement, exactly, visually translates as “reaching for a weapon” as opposed to something else — any of the infinite other purposeful or non-purposeful movements Guzman may have made as the car jolted around in the alley?

Isnora’s claimed observation being of the most self-serving variety possible (justifying a homicide!), one would think that a more rigorous evaluation of the forensic validity of the observation would have been conducted, and presumably the prosecutor attempted to refute the claim. What we know from the Judge’s verdict is that he seems to have wholeheartedly accepted the fact and accuracy of the Isnora’s physically dubious observation, and used it as the keynote of his written opinion.

I realize the burden of proof was on the DA to show that, beyond a reasonable doubt, the shooting was unjustified, but it seems from the opinion that the Judge relied on Isnora’s “observation” as the chief obstacle to the DA’s meeting his burden of proof. I will be watching for more news out of the trial with an eye to this issue, and will update my opinion here as new facts warrant me adjusting it.

Upcoming will be a civil case and a potential federal civil rights prosecution.

Paultre Bell, Guzman and Benefield have filed a wrongful-death lawsuit in federal court that has been stayed pending the outcome of the criminal trial. Guzman was shot 16 times, and four bullets, too dangerous to remove, remain in his body, according to his lawyer, Sanford Rubenstein.

Federal prosecutors in the Eastern District of New York have been monitoring the trial. In the event of an acquittal, it is likely authorities would conduct a review to determine whether there were any civil rights violations.

I’ll add news on those as it develops.

B

Two interesting matters that have been dormant for some time, worthy of an update.

Odyssey Marine v. Spain update:

A report in El País newspaper has revealed that the 500,000 coins which the Odyssey Marine Exploration company found off the coast of the Algarve last April and May are Spanish coinage. …

The revelation was made by the company itself when if [sic] completed customs forms in Gibraltar on April 10 and May 16, the dates that they took their haul out of the colony and back to their base in Florida. …

The fact that the Odyssey company has admitted the coinage found is Spanish, does not, the company claims, mean it was found on a Spanish ship. On that point they insist that they still have not been able to establish the nationality of the vessel, a point key as to which nation or nations might later claim part of the treasure. (emphasis mine - the nationality of the ship is crucial to Spain’s claim to ownership) …

One theory is that the ship concerned is the ‘Nuestra Señora de la Mercedes’ which sunk in 1804 in the battle of Cape Santa María during an attack from British ships, although this has been dismissed by the Odyssey director Gerg Stemm.

He told the EFE news agency that his company invited the Spanish Ministry of Culture to take part in his expedition last year. ‘At first’, he said, ‘they did not show any interest, now they do. They have tried to force us to give information which we consider could put the site where we found the treasure in danger’.

Louis “Outraged Octogenarian” Montgomery update:

The 81-year-old man accused of hitting a Sheriff’s deputy over the head with a paint roller is suing the county and the deputy involved in the case.
Louis Montgomery has filed a claim for personal injuries he says he sustained as a result of excessive use of force. Montgomery also claims his arrest in March was illegal.

He says the arrest by Deputy Steven Williams was not made with a warrant or based on probable cause. The claim was filed with the County on Sept. 4. According to the Sheriff’s Department, Montgomery became violent with Deputy Williams after Williams asked Montgomery to stop painting a neighbor’s fence.*

Montgomery claims he didn’t hit the deputy with the paint roller, it fell on his head. The 81-year-old man faces charges of assault with a deadly weapon.

If you haven’t been keeping up, let me point out the crucial point that Montgomery was painting his own fence, NOT his neighbor’s as reported in the article. Montgomery had build a concrete block fence under a court order related to his neighbor’s irritation with Montgomery’s mini pig farm. To annoy his neighbor, Montgomery was perched upon his wall painting the side facing the neighbor in the tradition of tasty, but unlovely Neapolitan ice cream. It is debatable as to whether this otherwise legal activity represented a breach of the peace in which the responding deputy could lawfully interfere, or whether it was merely a “so sue me” nuisance properly dealt by filing suit.

B

Good article and excellent video from Jason Kotowski writing for The Bakersfield Californian showing the painted wall and more.

I am coming around to the understanding that the subject wall is actually on/at/near the property line, but of course this becomes a very precise concept and requires a survey at some point. It was built by Montgomery, under a court order related to his pigs, and when you build a fence it is supposed to be on your side of the property line (if only barely). If it was entirely on his land, then it still seems “it was his to paint” - though that would explain why he actually seems to have sat or stood atop the wall to paint it (so as not to trespass on the other side).

I’m not sure how that’s a police matter assuming no breach of the peace. If the neighbor has a problem with it, go to court. If the neighbor was instigating a breach of the peace, it should’ve been the neighbor being warned off by the deputy. Until I learn different, I’ll continue to feel this way.

The next hearing in the case is on June 18.

B

This story has some legs in California. Any of these three links should work for the video:

http://www.kget.com/mostpopular/story.aspx?content_id=69d2f9b3-ac17-4472-9fb7-09d351703540
http://www.kget.com/mediacenter/local.aspx?videoId=17879
http://www.kget.com/mediacenter/?videoId=17879

The video accompanies a brief report that the accused, Louis Montgomery, will be held for trial - the hearing at which this video was taped established that there was sufficient evidence for a trial. I assume there will be a bail hearing, but it wasn’t mentioned.

One BIG twist. In my previous post, all the quotes and info stated directly that Montgomery was painting HIS OWN fence, on HIS land.  Now, in the report accompanying the video, there is an unsourced remark that Montgomery was painting HIS NEIGHBOR’S FENCE, and he was asked to stop by the Deputy.

Investigators said Montgomery became violent with Deputy Steve Williams after he asked Montgomery to stop painting his neighbor’s fence.

IF TRUE, that would be a breach-of-the-peace/destruction of property type situation where the Deputy would be (more) justified in trying to stop Montgomery - though his chosen tactics still seem highly questionable.

So which is it? Was the fence on Montgomery’s land or was it his neighbor’s fence - or was it a shared fence or a disputed property line? The earlier report seemed very clear on this point, but now we don’t know.

At least Montgomery has a lawyer, Kyle Humphrey, who said on the video:

“I don’t believe we pay our law enforcement to bust up old men … The evidence will be substantially different than what has been testified to [today] … We’ll let a jury sort it out.”

B

…I’d say only if it killed you.

This story (which is real, to my knowledge) is too good to pass up, and includes some interesting legal issues.

BAKERSFIELD, Calif. — An 81-year-old retiree was back in court Tuesday facing a felony charge of allegedly assaulting a Kern County deputy.

Louis Montgomery is facing the possibility of three years in prison for hitting a deputy with a paint roller. Last March, Montgomery was in the middle of a dispute with his neighbor over his pig farm. The feud boiled over when he decided to paint a wall facing his neighbor’s property using an assortment of old paint, according to the Kern County Sheriff’s Department. The neighbor then called the authorities to stop Montgomery.

It’s hard not to laugh (for me, impossible). But… this is serious business with three years in the pokey at stake.

Let’s fill in the blanks a little as we go along:

“[D]ispute with his neighbor over his pig farm.” Pigs are notorious for their stink, which isn’t respectful of property lines and often harmful to neighborly relations.

“The feud boiled over when he decided to paint a wall facing his neighbor’s property using an assortment of old paint…” Classic passive-aggressive. I’m feuding with you, so I do something to irritate you that you can’t really do anything about - for example I paint a wall on my land that you have to look at every day some really ugly colors. You’re so irate, you call the cops on me anyway.

This is where it gets really good.

A Kern County sheriff’s deputy who arrived at his home in Northwest Bakersfield told him to stop painting the wall. Montgomery said he explained to the deputy the fence was his to paint.

“He accused me of graffiti on my own fence,” said Montgomery.

The deputy said Montgomery ignored the deputy and continued to paint the wall with a long-handled paint roller.

How can you not side with Montgomery here? Isn’t he in the right? It’s his fence, on his land, and he’s painting it (and don’t call it ugly - beauty is in the eye of the beholder, right?). Sure the neighbor doesn’t like it, and it may be intended to aggravate the neighbor. But isn’t this like you painting your house hot pink? Your neighbor can’t call the cops to stop you from painting your house hot pink! It’s only hurting his feelings. Pig stink may be a legitimate private nuisance (or public - it’s been a while since I’ve reviewed nuisance law) but the color of a fence? And anyway private nuisance is a civil action, it’s not something you get police involved in. It is in no way violative of any criminal statute to paint your fence.

The graffiti charge sounds made up to me. Not buying it, no way. There is no indication that Montgomery was painting words (obscenities or slurs) on his fence (after all, he’s using a “long handled paint roller”).

So the Deputy told Montgomery to stop painting his own fence on his own property. Montgomery ignored him. And why shouldn’t he? How can the Deputy’s order possibly be lawful? I seem to remember some variance from state to state on obeying the orders of a law enforcement agent. Failing to do so can be a crime in itself. But I also seem to recall “lawful order” being part of that equation, at least in some states. I’ll have to research that. But — regardless – it offends common sense, the notions of private property and individual liberty, and the Bill of Rights to suggest that Montgomery should have to obey that order.

It was then that the Deputy Sheriff had the bright idea to use force against the 81 year old hardened criminal.

According to Deputy District Attorney Alex Harper, Montgomery hit the deputy over the head with the roller when the deputy tried to wrestle it away. The deputy was covered in paint and required medical attention for the gash in his head. Harper said the deputy received several stitches.

Montgomery said he was also injured in the brawl.

“When I was taken off the wall he busted both my arms, my elbows and a few of my ribs,” Montgomery explained.

He was arrested following the fight and charged with one count of felony assault with a deadly weapon.

Montgomery has pleaded not guilty.

Explain to me what right the Deputy had to walk onto Montgomery’s private property and lay hands on him (to stop him from painting!)? This sounds like a gross abuse of police power to me. No laws were being broken here. This neighborly feud was a civil dispute at best. So file suit already. The police aren’t supposed to take sides in a civil dispute.

Montgomery was having none of it. At a certain age, I can imagine you’re just done taking bull from anyone. Monty cracked the Deputy over the head with the paint roller (in self defense?). Was the Deputy trespassing on Montgomery’s land and assaulting him, all at the behest of an irritated neighbor? That will certainly be for a court to decide in the coming months when Monty sues the department. I’d love to represent the old codger, and I bet plenty of California lawyers will be jumping at the chance to try the criminal and civil suits.

Oh and by the way, I don’t believe anyone’s ever been killed by a paint roller (update: Google says the only time it ever happened, it was a freak accident). So lay off the “deadly weapon” charge, alright? Can’t we find anyone better to “throw the book” at? There’s this thing call prosecutorial discretion…

B

Thoughts on police-chase case Scott v. Harris. Watch the police videos here.

The crucial question is whether the Deputy Scott’s act (running Harris off the road) was a reasonable seizure under the 4th Amendment, or whether it was unreasonable and therefore violated Harris’s 4th Amendment rights. The case is a short education on “summary judgment” - which the Supreme Court majority renders in favor of Scott by reversing the judgment of a three judge panel of the 11th Circuit and the original District Court Judge, all of whom denied summary judgment.

The reasonableness of an act is a question of fact for the jury - until a judge takes the determination out of the jury’s hands by deeming that “no reasonable jury” could find the act reasonable/unreasonable. When a judge makes that determination, he is deeming the act reasonable/unreasonable as a matter of law.

This is the only way to win by summary judgment - the evidence viewed in the light (with the inferences) most favorable to the nonmoving party must be such that no reasonable jury could find in favor of the nonmoving party. Thus, there being no genuine issue (relevant disputed fact) for trial, summary judgment is appropriate.

Justice Scalia concludes his summary judgment discussion, writing:

When opposing parties tell two different stories, one of which is blatantly contradicted by the record [the video], so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Slip Opinion, Opinion of the Court @ 7.

But whether a party’s “story” is “blatantly contradicted by the record” is a determination of fact - Scalia’s own determination of fact. Disagreeing with Scalia’s decisive personal feelings about the facts are the District Court Judge, the Eleventh Circuit’s three judge panel, and Justice Stevens. Based on their differing view, these judges conclude that summary judgment is inappropriate and the jury should decide the case.

Justice Stevens, in his solo dissent, skewers Scalia and the majority perfectly, writing:

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events. Slip Opinion, Dissent @ 8.

The majority Justices seem too comfortable with their own fact-finding prowess, branding fellow sitting judges and potential jurors unreasonable for their actual and potential disagreement. You are unreasonable, I am not.

Isn’t this is exactly the sort of disagreement of perception that should make denial of summary judgment automatic: eminently reasonable people steeped in the law have already disagreed in interpreting the facts?

What’s your opinion?

B