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Who Polices the Police?

Hi there. This is Erica Merrill and I’m the founder of perfectly legal video. And I amvery happy to bring you today. Attorney Brian Jones, he owns a criminal defense firmout of Ohio, and we are going to be talking to him about something that is a very hottopic in the news. so I want to thank you so much for joining us today, Brian.

SPEAKER 2
00:26 – 00:31
Hi, Erica. Thanks for having me on again. It’s good to see you and I’m excited about today’s topic.

SPEAKER 1
00:32 – 01:19
Absolutely. the topic is, kind of sad though. you know, so we’ll go into it. It’s going to be, in the case of a former Minneapolis police officer, Derek Shelvin, who was arrested on May 29th, 2020 on third degree murder and manslaughter charges in the relation to the death of George Floyd on May 25th, 2020. And so this is all just happening this week. this comes on the heels of another high profile death of African-Americans as a result of contact with law enforcement. So many of us are wondering who polices the police. So I love to ask you, Brian, how are the police held accountable today

SPEAKER 2
01:20 – 02:54
There are seven main ways that police are held accountable for illegal or improper actions. internal misconduct review, criminal charges, civil lawsuits against them, shaming and media attention. The judicial system can impose sanctions on them. The federal department of justice can also impose sanctions on police departments and then of course, citizens through their right to vote and their first amendment rights to free speech and, public gatherings and form of protest. Now with an internal misconduct review, this is frequently triggered by some sort of misconduct that’s in violation of protocols and procedures. It can result in a suspension with pay a suspension without pay. it can result in additional training or, other additional educational needs that the officer has to go through. And it can even result in demotion in some cases. Now with the case of, officer Shovin, there are criminal charges pending against him, currently for third degree murder, with regards to the death of George Floyd, for instances where police conduct exceeds the scope of the actual criminal law in the jurisdiction that they’re in law enforcement officers can face criminal charges for their conduct in their official capacity civilly.

SPEAKER 2
02:54 – 03:57
we all had heard about the financial sanctions that can be imposed both on officers, individually, the police departments they work for and the municipal County and state jurisdictions that they work for. And those are through what’s called a 1983 action, most significantly, but also most States have statutory provisions that provide for civil rights remedies, for violations of individuals. So right now, of course, over the last five days, we’ve seen extensive media coverage highlighting the bad behavior of the officer in this case, or the alleged bad behavior of the officer in this case. And of course that media coverage has a variety of consequences trickling down to how jurors look at these law enforcement officers and future court cases. whether that chief or sheriff is reelected or reappointed to their position, the person who is in a supervisory capacity over the individual officer.

SPEAKER 2
03:57 – 05:02
and of course, you know, the, the broad ranging societal view of law enforcement officers in general now, courts can also sense your, and impose sanctions on officers who engage in unconstitutional illegal, or just improper misconduct during the course of an investigation, they can prevent those officers from testifying. They can give special jury instructions for individual officers that this particular officer has been found to have engaged in misconduct in the past. They can reopen closed cases and overturned convictions based on instances of perjury or consistent misconduct over the course of a particular officer’s career. Not the United States has the department of justice and pattern and practice investigations can be started either through a complaint, a citizen complaint to the department of justice, or the department of justice can start those investigations on their own. Now the results of those investigations can be wide ranging as well.

SPEAKER 2
05:02 – 06:40
Everything from a finding of no misconduct, all the way up to, mandated plans to improve police training, and reimbursed localities for violations of their civil rights, long standing civil rights violations, in particular, Ferguson, Missouri was subjected to extensive sanctions, following the DOJ investigation of that location, I believe in 2008, maybe 2009, then of course citizens have the right, and I would argue the obligation to police the police in the age of cell phone, video, audio recording, and live streaming of events. People can be out there keeping an eye on the people that are supposed to be protecting us. They’re supposed to be acting in service to us, but all too often, don’t meet that standard. Now with regards to citizen policing of the police, it’s critical to remember that you cannot interfere with police action, even if you believe it’s illegal. And even if you believe it, another individual’s life is at risk, you must observe the behavior. I would strongly encourage you to record the behavior, but do not interfere with that action because you as a citizen can then be charged criminally and may even be putting your life at risk, trying to help somebody who suffering at the hands of a law enforcement officer. So those are broadly speaking, but other ways that law enforcement is policed, so to speak

SPEAKER 1
06:41 – 07:09
Well, Brian, this sounds like it’s going to be quite a significant case because if he is found guilty, it sounds like all of his actions. And as I’ve heard from some of the news reports, this isn’t the first time that he has been overly aggressive. He has a history and all of the cases could be opened up again, is what you’re saying.

SPEAKER 2
07:11 – 07:37
That’s correct, Erica. So he can be both criminally prosecuted. And all of the cases that he’s worked on over the course of his career could be reopened by the judicial system. both Fox news and CNN have recorded that this individual officer has a board of a dozen, use of force complaints that have been filed against him over the course of his career.

SPEAKER 1
07:38 – 08:09
And that number seems to climb because I saw one report that was over 20, and that always happens when something happens in the news. You find out that more and more was, uncovered. And that’s, that’s really interesting. Can we talk about, what’s going to happen to the three officers that were watching their fellow officer, do this criminal act and I know they were fired. but do you think that we’ll see them in court sometime soon,

SPEAKER 2
08:11 – 09:13
Eric, who would be absolutely possible in this case for those officers to also be criminally charged Remember last week we talked about, felony murder liability, which is not available in Ohio, but is being applied down in Georgia right now. but we also have, accomplice liability. That is a, a factor here in Ohio now in Minnesota. I believe that that is not a felony murder state. That is a, co-conspirator an accomplice prosecution state. So those officers would have to be found to have that same level of intent. as officer Shovan now, I don’t know that that would be the case in this particular circumstance from a criminal situation, but they can obviously also be subject to internal discipline, civil lawsuits. and of course their reputation has been harmed by the media coverage generated by the citizen recording of this incident.

SPEAKER 1
09:15 – 09:26
And they were fired as I’ve heard, correct the internal discipline aspect of it. So yeah, their whole lives being police officers, it’s now over. that’s really great.

SPEAKER 2
09:27 – 09:44
You’d be surprised how many times these officers who are terminated from one Oh one police force for excessive use of force, then get picked up and hired by another police force in a neighboring County. and certainly within the same state that they currently

SPEAKER 1
09:46 – 10:14
Wow. That is really interesting. I mean, they can’t be rehired if they’re charged of a criminal act, I would imagine, but they can be rehired even if they are disciplined or brutal force. okay. That’s very, you know, that’s, that’s very interesting. and I guess that that’s where the problem may lie is that the people have seen the future in some of their actions, but they keep hiring them. Anyway,

SPEAKER 2
10:16 – 10:59
What we’ve seen in a lot of our investigations of officers is that they will be terminated from one position and transferred to another. We’ve identified multiple Ohio state highway patrol officers. Who’ve been transferred around the state for engaging in a variety of improper conduct. And so rather than terminate them from the Ohio state highway patrol, they’re simply transferred to another post. We’ve also identified numerous officers here in Ohio who have been terminated from a Sheriff’s department or a local law enforcement agency who have then been rehired by a neighboring law enforcement agency. It’s almost like they get traded back and forth.

SPEAKER 1
11:01 – 11:22
Wow. I’m speechless. that seems like that’s the kind of thing that should not happen in such an important role in society as a police officer holds. So that’s very interesting. what are some of the examples of charges a law enforcement officer could face

SPEAKER 2
11:23 – 12:34
Again, we go back to the, the seven kind of categories that, that police the police. So when we’re talking about internal discipline, they can be disciplined for acts of racial profiling, falsifying information on search warrant or a police report, planting evidence, targeting or harassing behavior of a particular individual or a protected class, meaning, you know, an age, race, gender ethnic, basis, or fabricating reasons for roadside detentions or arrests. remember back in 2000, I believe it was 2010 when the New York city police department came under fire for their stop and frisk policy. and that sort of illegal detention. Kevin be the subject for internal discipline. Now, when we’re talking about civil rights lawsuits and civil remedies, we’re talking about violations of an individual’s constitutional rights. So, 42 United States code section 1983 creates a civil cause of action.

SPEAKER 2
12:34 – 13:52
Any time a government individual violates a person’s civil rights constitutionally guaranteed rights. So if you look at the entirety of the constitution, each one of those amendments to the constitution can be a catalyst for a civil rights lawsuit. Additionally, 1983 can also provide a civil cause of action for things like false arrest, malicious prosecution, falsifying evidence, perjury, and the light. Now what we’re talking about with regards to, the George Floyd case and officer Derek Shovan our criminal charges and the criminal charges can be anything that anybody else could be charged. Everything from assault, sexual assault, murder theft in office ticket, fixing or bribery. we even there have been cases of officers engaging in drug dealing that, are prosecuted criminal. Now it’s critical to note that law enforcement officers have they enjoyed great authority and immunity from a lot of these types of remedies, but that authority requires responsibility and accountability.

SPEAKER 2
13:52 – 15:14
In my opinion, no one bad officer does not make the entire police force back. We cannot say that just because there’s this one individual that all police can’t be trusted, and we have to throw the entire bushel out the one bad app, but the officers that turn a blind eye to the misconduct in the maltreatment and the inhumanity that one individual officer engages in are perpetuating a system of injustice that they’re in a unique, and I would say an obligated position to remedy and fix as lawyers. We have what we call a squeal rule, where if we identify a lawyer who’s engaging in misconduct and unethical behavior, we have an obligation to report back to our state supervisory board in Ohio, the Supreme portable high. Now, if I became aware of a lawyer who was engaging in misconduct, and I had evidence that they violated the ethical groups, if I remain silent about that violation of the ethical rules and the Supreme court finds out about I can lose my license to practice law. My question is why isn’t that level of obligation imposed on the police

SPEAKER 1
15:16 – 16:08
That’s a really good question. I mean, because obviously it should be, otherwise this probably never would have happened. Had they taken the proper action early on in this gentleman’s career And when they see the signs of using force, it just goes over the top and hurts people. This would have never happened. Someone not turned the blind eye and just reported it, and not let him just keep getting job after job. it’s, it’s a really sad sign of our times, when this keeps happening over and over again. So something should be fixed, but what are the remedies and how do people get justice if they were hurt or killed by law enforcement When it seems like the deck is stacked against them.

SPEAKER 2
16:10 – 17:28
So, Eric, I think, I think the first way that people get justice in these sorts of situations is by bringing media attention to the problem we’ve, we’ve seen over the last 10 years or so 10, 15 years as cell phone cameras have become ubiquitous that time and time again, we identify misconduct by the police. And what we also see with that misconduct is that the police have circled around their peer and that thin blue line or the thick blue wall has come up to try and protect that individual. We read police reports and officer narratives that say, one version of events when the body worn camera footage or the citizen’s cell phone footage tells a drastically different story. So in my opinion, the first step is to bring that misconduct to light. Second, if you are a victim of improper or illegal police misconduct, the first thing that you have to do in most jurisdictions and under federal law is that exhaust your administrative remedies.

SPEAKER 2
17:29 – 19:06
What that means is you must file a formal complaint with the agency that hired and employed the individual that violated your civil rights filing that complaint is absolutely necessary. And you can hire a lawyer to assist you with that process. Once that complaint is filed, the rest of the remedies become open and available to you. So, criminal charges can always come down on an officer that breaks the wall and that’s up to the County prosecutor to bring those charges, but the civil lawsuit, the civil aspect of it, because unfortunately in America, when somebody is injured, you can’t go back in time and undo that injury. We can’t bring George Floyd back to life. All we can do is compensate his family for the loss that they experienced. So those civil lawsuits can bring compensatory financial damages, but they can also bring in junk delivery forcing that agency to Institute policies, possibly even my, squealer rule that or that is imposed on lawyers, additional training in use of force and community relations in a variety of areas that make the police to do a better job next time. And of course there are the federal civil rights violation investigations conducted by the department of justice, that can impose rules, restrictions, and requirements on, to remedy issues that happen on a systemic basis.

SPEAKER 1
19:08 – 20:12
Thanks so much, Brian, that was an incredible analysis of the situation. Not only what a citizen should do, if they see something happening that seems like someone might be getting hurt by the police, or, you know, to make sure that you stay out of it recorded, if you can. there were several great suggestions on, you know, how they can help their own process with, punishing their own people and not continuing to give them job after job when they see things are going wrong. I mean, as you said, yeah. So with, with attorneys, there’s a square low rule. And, you know, instead of just covering up for each other, they’re actually going to turn you in. If they see wrongdoing, which is what should really be happening with police. And I know that that’s so tough to do to another team member a lot, you know, they’re like family to you a lot of times, but, you know, unfortunately if they don’t start doing stuff like that, they are going to end up having these issues come back over and over again.

SPEAKER 1
20:12 – 21:11
And as we mentioned earlier, he does get prosecuted. there’s a risk that all of his cases against criminals that probably did deserve to be in jail could be let loose because things weren’t done correctly when they were first filed and put in jail. So I love this interview because I think it’s informative on a lot of levels. And I mean, you’ve seen how the public is blowing up over this. We’ve seen it before. cops were just getting randomly shot the whole nation. And it’s very scary because police officers that are, are bad cops. And it turns out that the rest of them get blamed and just randomly shot by citizens. And that is that’s really scary. They, they burnt down the building and we’re rescuing police officers from the roof this week. And, you know, to keep them safe, things really need to change.

SPEAKER 1
21:12 – 22:19
And so I, I love this interview. I think that it’s, it’s a very helpful on a lot of counts. So if you do, like Brian was saying, if you do have questions about anything having to do with a crime that you saw or a crime that you might be accused of, or someone, you know, please have them give the office of Brian Jones, a call, they are up to date on everything. And, you know, they, they go the lengths to get the extra education needed, to know the best strategies for you. It’s I am constantly blown away in these interviews by the things that I didn’t know, that I’ve never heard other criminal defensive attorneys say, so their processes strategies are amazing and they really do help their clients, the best that they can. So please give them a call. Brian, is there anything that you feel like we miss I, or I didn’t ask you today Cause I know sometimes we get to talking and something pops into your mind and we want to make sure that, we’ve exhausted all of the information from you

SPEAKER 2
22:20 – 23:37
As a criminal defense attorney. I’m in a unique position to bear witness to the systemic issues in our criminal justice system and the dangerous impact that racial prejudice, socioeconomic bias and misconduct and policing has on our communities and on the police themselves. I don’t look at this as just an issue of citizen rights and citizen safety. This is a law enforcement safety issue as well. Police officers walking the streets, as you pointed out yourself, Erica, or risk to be assaulted and possibly even murdered because of the behavior of these isolated bad apples, but the thin blue line that rallies around them and hides their misconduct, exacerbates that problem and makes it look like they are engaging in and supporting the misconduct. When the reality could be nothing different citizens can protect themselves and police officers by keeping a recording device on themselves at all time.

SPEAKER 2
23:38 – 24:40
And when you see something, say something, record the misconduct, stay out of it, don’t fear, but record it and share that recording and shine a light into the dark corners of our criminal justice system. So that those good police officers can see that citizens support them so that those good police officers can come forward and say, I’ve sworn an oath to protect the people of my community. I swore an oath to defend the constitution and what my peers are doing is wrong. Those officers need our support because when they come forward and they report the misconduct that they see they’re ostracized by their peers, some of them are even assaulted by giving them our support. We are being allies to everyone by being an active citizen informant. We are being true Americans.

SPEAKER 1
24:43 – 25:03
Wow. That those were just amazing words. Thank you so much for sharing those. And, we, it’s always a pleasure to interview you. every Friday we really enjoy the information that we get. I’m always learning. So thanks so much for joining us. We will look forward to what you have to say next week.

SPEAKER 2
25:04 – 25:06
Thanks, Erica. Can’t wait until next week.