ExpertCop.com13th Juror Law Disc

    Sold : 15,600
    Left : 984,400
    Home | Buy Pixels | FAQ | Blog | Pixel Clicks | Press | Publications | Tell a friend | Contact me

         News Updates:

The Future Is The Future Is US Constitution 4th Amendment Police Expert Witness & Consultant Deadly Force GGS 51-277a Connecticut Deadly Force Shooting Reports The Original Moment
   

13thJuror


04-05-17 | 04:33 am

Terry Frisk


If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Terry, 392 U. S., at 17.

13thjuror

03-31-17 | 06:13 pm

Ct Warns Illegal Immigrants


Know Your Rights Everyone –both documented and undocumented persons –has rights in this country. Talk to everyone in your household, including your children, about what to do if ICE officials come to your house, approach you, or arrest you. ICE at Your Door You do not have to open the door for ICE or any police officer without a warrant signed by a judge (a “judicial warrant”) A judicial warrant must have your specific and correct name and address on the warrant Ask for the warrant to be slid under the door or shown to you through a window so you can look for your name, address and a judge’s signature If ICE Approaches or Arrests You You have the right to remain silent: You do not have to talk to ICE or answer their questions Make a call to an attorney or your consulate Do not sign any documents before speaking to an attorney " http://portal.ct.gov/FamilyPreparedness

13thjuror

03-27-17 | 07:57 am

Common Sense


State v. Sivri, 231 Conn. 115, 135, 646 A.2d 169 (1994) (once jury has determined that ``the hypothesis or hypotheses of innocence posed by the defendant are no more than possible as opposed to reasonable . . . that jury determination is entitled to deference on appeal'' see also State v. Winot, 294Conn. 753, 768, 988 A.2d 188 (2010) (jury is entitled to rely on common sense and experience).

13thjuror

03-26-17 | 08:16 am

Expert Opinion


"When an expert offers an opinion relevant to applying a legal standard such as probable cause [or Brady], the expert's role is limited to describing sound professional standards and identifying departures from them, " Jimenez v. City of Chicago, 732 F.3d 710, 721 (7th Cir. 2013) "...Experts are permitted to testify about "custom and usage" of terms in particular industries. See SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107, 134 (2d Cir. 2006). "

13thjuror

03-17-17 | 03:16 am

Legislative Intent


‘‘In the absence of a definition of terms in the statute itself, [w]e may presume . . . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use. . . . Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary.’’…. ‘‘It is a well established principle of statutory interpretation that we cannot accomplish a result that is contrary to the intent of the legislature as expressed in the [statute’s] plain language. . . . [A] court must construe a statute as written. . . . Courts may not by construction supply omissions. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.’’ State v. Rodriguez-Roman, 297 Conn. 66, 80–81, 3 A.3d 783 (2010).

13thjuror

03-12-17 | 01:20 am

Legislative Intent Rule


‘‘In the absence of a definition of terms in the statute itself, [w]e may presume . . . that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use. . . . Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary.’’…. ‘‘It is a well established principle of statutory interpretation that we cannot accomplish a result that is contrary to the intent of the legislature as expressed in the [statute’s] plain language. . . . [A] court must construe a statute as written. . . . Courts may not by construction supply omissions. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.’’ State v. Rodriguez-Roman, 297 Conn. 66, 80–81, 3 A.3d 783 (2010)."

13thjuror

03-04-17 | 03:34 am

Statutory Intent


SUPREME COURT OF CALIFORNIA CITY OF SAN JOSE et al., Petitioners, v. Santa Clara County & Ted Smith (3/2/17) .“When we interpret a statute, our fundamental task . . . is to determine the Legislature‟s intent so as to effectuate the law‟s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute‟s purpose, legislative history, and public policy.‟ Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.‟ ” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165-166.) "To qualify as a public record, a writing must “contain information relating to the conduct of the public‟s business.” (§ 6252, subd. (e).) Generally, any “record . . . kept by an officer because it is necessary or convenient to the discharge of his official duty . . . is a public record.” (Braun v. City of Taft (1984) 154 Cal.App.3d 332, 340; see People v. Purcell (1937) 22 Cal.App.2d 126, 130.)"... a writing must relate in some substantive way to the conduct of the public's business... records related to public business are subject to disclosure if they are in an agency's actual or constructive possession. ... “[A]n agency has constructive possession of records if it has the right to control the records, either directly or through another person.”... a city employee's writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.

13thjuror

03-02-17 | 05:53 am

No Duty to Protect


DeShaney v. Winnebago County Department of Social Services, the Supreme Court held that, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” 489 U.S. 189, 195 (1989). "The Second Circuit has identified two exceptions to the general rule of DeShaney. See Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008). “First, the state or its agents may owe a constitutional obligation to the victim of private violence if the state had a ‘special relationship’ with the victim.” Id. (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993)). “Second, the state may owe such an obligation if its agents in some way assisted in creating or increasing the danger to the victim.” Id. (quoting Dwares v. City of New York, 985 F.2d 94, 98-99 (2dCir. 1993) (internal quotation marks omitted)). The distinction between these two categories of cases “suggests that ‘special relationship’ liability arises from the relationship between the state and a particular victim, whereas ‘state created danger’ liability arises from the relationship between the state and the private assailant.” Pena v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005).

13thjuror

03-01-17 | 10:44 am

Subjective Probable Cause


"Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Whren v. United States, 517 U.S. 806, 813 (1996). "Once an officer has probable cause, the stop is objectively reasonable and any ulterior motivation on the officer's part is irrelevant." United States v. Frasher, 632 F.3d 450, 453 (8th Cir. 2011). "Similarly, it is irrelevant that the officer would have ignored the violation but for his ulterior motive."

13thjuror

03-01-17 | 08:46 am

Almost Perfect


Police officers are required to act reasonably, not perfectly, under the Fourth Amendment. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).

13thjuror

02-22-17 | 04:15 pm

Deliberate Indifference is Recklessness


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2016 Argued: September 22, 2016 Decided: February 21, 2017 Docket No. 15-2870 ...the Supreme Court has instructed that “deliberate indifference” roughly means “recklessness,” but “recklessness” can be defined subjectively (what a person actually knew, and disregarded), or objectively (what a reasonable person knew, or should have known). See Farmer v. Brennan, 511 U.S. 825, 836-37 (1994)."“deliberate indifference,” which is roughly synonymous with “recklessness,” can be defined either “subjectively” in a criminal sense, or “objectively” in a civil sense. As such, the“subjective prong” might better be described as the “mens rea prong” or “mental element prong.” the “subjective prong” (or “mens rea prong”) of a deliberate indifference claim is defined objectively..."

13thjuror

02-18-17 | 05:36 am

Truth is what is believed


"...probable cause is a “fluid”standard that “does not demand hard certainties or mechanistic inquiries”; nor does it “demand that an officer’s good-faith belief that a suspect has committed or is committing a crime be correct or more likely true than false.” Zalaski, 723 F.3d at 389-90 ... As such, probable cause for arrest requires only facts establishing “the kind of fair probability” on which a “reasonable and prudent” person, as opposed to a “legal technician,” would rely. Florida v. Harris, 133 S. Ct. 1050, 1055, 185 L. Ed. 2d 61 (2013) Reynolds v. Jamison, 488 F.3d 756 (7th Cir. 2007 "Law enforcement officers often encounter competing and inconsistent stories. If officers were required to determine exactly where the truth lies before acting, the job of policing would be very risky financially as well as physically.” Askew v. City of Chicago, 440 F.3d 894, 896 (7th Cir. 2006)). “Police would respond by disbelieving witnesses (or not acting on allegations) lest they end up paying damages, and the public would suffer as law enforcement declined.” Id.

13thjuror

08-08-16 | 12:23 pm

Ignorance of the law is an excuse sometimes


The United States Supreme Court has recognized that “[j]ails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.” Johnson v. Avery, 393 U.S. 483, 487 (1969). A significant number of inmates do not have the wherewithal to determine their rights and advocate for themselves due to limited education and literacy, and in some cases language barriers. These constraints give rise to considerable policy concerns, and perhaps constitutional ones. "

13thjuror

05-19-16 | 06:57 am

Terry Stop


United States v. Neff, ___ F3d ___ (10th Cir. No. 01-4184, filed 8/22/2002). Use of handcuffs during a Terry stop did not turn it into an arrest. Officers received reliable tip that suspect was intoxicated and possibly carrying a gun - a "short-type rifle" concealed in his jacket sleeve. Officers saw suspect, who quickly walked away. Officers stopped him with guns drawn and handcuffed him. United States v. Colon, ___ F.3d ___ (2d Cir. No. 00-1628, filed 05/14/2001). Caller information given to a civilian 911 operator working for the New York Police Department but not conveyed to the dispatching or arresting officer cannot be imputed to the arresting officer under the collective knowledge doctrine as a basis for reasonable suspicion to justify a search of defendant.Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)(affirming 727 So. 2d 204 (1999)). Anonymous tip that a black male wearing a plaid shirt standing in front of a certain pawnshop is carrying a concealed firearm, is not sufficiently reliable, absent some corroboration by police officers, to justify investigatory detention and frisk. Weapon seized should have been suppressed.

13thjuror

05-06-16 | 04:38 am

Willfully Defined


"Black’s Law Dictionary defines the word “knowingly” as “with knowledge; consciously; intelligently; willfully; intentionally. An individual acts ‘knowingly’ when he acts with awareness of the nature of his conduct.” BLACK’S LAW DICTIONARY 827 6TH ED. The term “willful” is defined as “proceeding from a conscious motion of will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary. the word willfully to mean “deliberately” instead of “maliciously” or “viciously”.The term willfully was also described as “an act consciously and deliberately done…Premeditated; malicious, done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification.” The dictionary defines the phrase “knowingly and willfully” in reference to a violation of a statute to mean “consciously and intentionally.”the term knowingly can be defined as the mental state of an accused that knew or should have known that the act he or she was committing was a violation. A willful act is one that is done intentionally or deliberately, but not maliciously (although it can be)."

13thjuror

05-06-16 | 02:04 am

Contributory Recklessness


``a person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to the danger of probable injury, is liable if such injury results, even though he uses all proper care''

13thjuror

05-01-16 | 08:28 am

Reckless Standard


Connecticut courts have set forth definitions of the terms reckless, willful and wanton to assist courts in determining whether conduct rises to a level sufficient to justify an award of punitive damages: Recklessness is a state of consciousness with reference to the consequences of one's acts. . . . It is more than negligence, more than gross negligence. . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . Wanton misconduct is reckless misconduct. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention. Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003) (quoting Craig v. Driscoll, 64 Conn. App. 699, 720-21, 781 A.2d 440 (2001). RUSSO v. CITY OF HARTFORD, 158 F.Supp.2d 214 (D. Conn. 08/02/2001) Municipal Policy or Custom… It is only when the execution of a municipality's "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the [municipality] as an entity is responsible under § 1983." Id. at 694. "In short, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). Thus, in order for a municipality to be liable under § 1983, a plaintiff is required to plead and prove the existence of an official policy or custom that causes the plaintiff to be subjected to a denial of a constitutional right. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995)…. A single decision by "municipal policy makers" can be sufficient to impose liability. Pembauer v. City of Cincinnati, 475 U.S. 469, 480 (1986). Further, "an `official policy' within the meaning of Monell [can] be inferred from informal acts or omissions of supervisory municipal officials." Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir. 1980). In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts. . . . [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . BATES v. MCKEON, 650 F. Supp. 476 (D. Conn. 11/20/1986) Connecticut courts have emphasized the primacy of intention in their definitions of "wantonness" and "malice": "A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was a voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional." Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). "A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances." Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may also be satisfied if the resultant harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). "It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 (1929). 2.3-5 Criminal Negligence -- § 53a-3 (14) Revised to December 1, 2007 A person acts with "criminal negligence" with respect to a result or to a circumstance described by a statute defining an offense when (he/she) fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. The failure to perceive the risk must be a gross deviation from the standard of a reasonable person. The standard of conduct of a reasonable person in the same situation as the defendant is the doing of something that a reasonably prudent person would do under the circumstances or omitting to do what a reasonably prudent person would not do under the circumstances. A gross deviation is a great or substantial deviation, not just a slight or moderate deviation. There must be a great or substantial difference between, on the one hand, the defendant's conduct in failing to perceive a substantial and unjustifiable risk, and, on the other hand, what a reasonable person would have done under the circumstances. Whether the risk is substantial and unjustifiable is a question of fact for you to determine under the circumstances. Commentary See State v. McMahon, 257 Conn. 544, 568 (2001), cert. denied, 534 U.S. 1130, 122 S.Ct. 1069, 151 L.Ed.2d 972 (2002) (explaining the difference between recklessness and criminal negligence); State v. Ortiz, 29 Conn. App. 825, 833 (1993) (criminal negligence requires more than the civil standard of negligence); State v. Bunker, 27 Conn. App. 322, 329 (1992) (the term "gross deviation" has its ordinary meaning).

13thjuror

02-03-16 | 11:39 am

Intent


[A] court must construe a statute as written. . . . Courts may not by construction supply omissions. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.’’ State v. Rodriguez-Roman, 297 Conn. 66, 80–81, 3 A.3d 783 (2010).

13thjuror

02-02-16 | 11:53 am

Threat


" A threat is the expression of an intention to injure another person. A physical threat is a threat accompanied by some action, such as words accompanied by a threatening gesture. A physical threat may also occur if the defendant expresses the threat in the person's presence and has the apparent ability to carry out (his/her) threat. Mere words are insufficient to constitute a physical threat; the defendant must also indicate by (his/her) actions an intent or an ability physically to carry out that threat. The conduct of a person, even without words, may be sufficient to cause fear in another person." Connecticut Criminal Jury Instructions § 6.2-3 (4th Ed. 2009), available at http://www.jud.ct.gov/JI/criminal/part6/6.2-3.htm (last visited November 28, 2014).

13thjuror

02-01-16 | 10:05 am

Self-defense


The United States Supreme Court has recognized that the second amendment protects ‘‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’’ District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).Section 29-38c does not implicate the second amendment, as it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes"

13thjuror

02-01-16 | 08:55 am

Intent to kill


‘‘To act intentionally, the defendant must have had the conscious objective to cause the result... state of mind is rarely available... intent is often inferred from conduct... ‘‘An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’’ State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981)....one who ‘‘uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.’’ State v. Tomasko, supra, 238 Conn. 259.

13thjuror

02-01-16 | 08:21 am

Seconds


Meyers v. Baltimore Cnty.713 F.3d 723, 733(4th Cir. 2013) ("force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated")…. In the course of responding to evolving scenarios, officers may encounter circumstances that compel them to recalibrate the amount of force deployed...."

13thjuror

02-01-16 | 05:29 am

Qualified Immunity


Qualified immunity provides police officers “breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 S. Ct. 3, 5 (2013)... individuals have a clearly established right not to be shot absent “probable cause to believe that [they] pose[] a threat of serious physical harm, either to the officer or to others,” Sample v. Bailey, 409 F.3d 689, 698 (6th Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985))...we must be careful not to substitute “our personal notions of proper police procedure for the instantaneous decision of the officer at the scene.” Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992). ...“[w]hat constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.” Dickerson v. McClellan, 101 F.3d 1151, 1163 (6th Cir. 1996)...The fact that a situation unfolds quickly “does not, by itself, permit [officers] to use deadly force.”...“what matters is the reasonableness of the officers’ belief . . . .” “[w]hen an officer faces a situation in which he could justifiably shoot, he does not retain the right to shoot at any time thereafter with impunity.” ...Whether or not an officer is following police procedures is certainly relevant to the question of reasonableness in excessive force cases, but it is not necessarily conclusive proof that the Constitution has been violated...the key inquiry is whether a reasonable officer in the same circumstances would have used the same amount of force. ...we must analyze the reasonableness of an officer’s use of deadly force based on an “objective assessment of the danger a suspect poses at that moment.” Mullins v. Cyranek No. 14-3817 Sixth Circuit November 9, 2015

13thjuror

01-31-16 | 01:52 pm

13thjuror


Reginald F. Allard , Jr. 13thJuror, LLC P.O. Box 1013 Southington, Connecticut 06489-5013 Voice: (860)-621-1013 (Police Assistance - Code 1013) Fax: (860)-621-1013 Web: http://www.expertcop.com E-mail: 13thjuror@cox.net

13thjuror

12-07-15 | 10:05 am

Second Amendment - Day of infamy


"If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing." The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits" THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES ARIE S. FRIEDMAN, ET AL. v. CITY OF HIGHLAND PARK, ILLINOIS ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 15–133. Decided December 7, 2015

13thjuror

10-28-15 | 07:45 am

Qualified Immunity


Qualified immunity protects public officials from liability where either ʺ(a) the defendantʹs action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.ʺ Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015)… ʺThe relevant, dispositive inquiry in determining whether a right is clearly established…is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.ʺ Id. at 92 (citing Saucier v. Katz, 533 U.S. 194, 202 (2001))…. For false arrest and malicious prosecution claims, an officerʹs probable cause determination is ʺobjectively reasonableʺ provided there was ʺarguableʺ probable cause. Jenkins v. City of N.Y., 478 F.3d 76, 87 (2d Cir. 2007). ʺArguable probable cause [to arrest] exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.ʺ Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013). Arguable probable cause to charge exists where, accounting for any new information learned subsequent to an arrest, ʺit was not manifestly unreasonable for [the defendant officer] to charge [the plaintiff].ʺ Lowth v. Town of Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996)…. The extent to which a police officer must credit a self‐defense claim in establishing probable cause is not clearly established, and depends on the facts and circumstances of each arrest. While a police officer cannot ʺdisregard plainly exculpatory evidenceʺ when establishing probable cause, Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006), if he has a reasonable basis for believing there is probable cause, he is not required to consider plausible defenses offered by a suspect prior to making an arrest. Jocks v. Tavernier, 316 F.3d 128, 135‐36 (2d Cir. 2003)…. an officer has probable cause to arrest where facts establishing defense are not ʺso clearly apparent to the officers on the scene as a matter of fact, that any reasonable officer would have appreciated that there was no legal basis for arresting plaintiffsʺ)….officers of reasonable competence could disagree on whether the probable cause test was met…. …In Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), the Supreme Court held that a municipality cannot be liable under § 1983 solely on a theory of respondeat superior. A municipality may be liable under § 1983 when there is a deprivation of a constitutional right, provided that such deprivation results from an action pursuant to an official municipal policy. Id. at 690‐91. 15‐170‐cv Arrington v. City of New York

13thjuror

10-23-15 | 11:30 am

Subjective Inferences


Although the subjective beliefs of the officer are irrelevant, law-enforcement officials are “permitted to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Shank, 543 F.3d 309, 315 (6th Cir. 2008)"..under the proper totality-of-the-circumstances approach, “we must determine whether the individual factors, taken as a whole, give rise to reasonable suspicion, even if each individual factor is entirely consistent with innocent behavior when examined separately.” Smith, 263 F.3d at 588; see also United States v. Marxen, 410 F.3d 326, 329 (6th Cir. 2005) (“In considering all the circumstances, the question is not whether there is a possible innocent explanation for each of the factors, but whether all of them taken together give rise to reasonable suspicion that criminal activity may be afoot.”)."..United States v. Garrido, 467 F.3d 971, 983 (6th Cir. 2006) (“[T]he officers were entitled to judge [the defendant’s] behavior and the information obtained during the safety inspection against the backdrop of their own experience and knowledge . . . .”).

13thjuror

10-05-15 | 05:35 am

Connecticut Gun Carry


"...Since carrying a gun is not per se illegal in Connecticut, the fact that respondent carried a gun is no more relevant to probable cause than the fact that his shirt may have been blue, or that he was wearing a jacket....Terry did not hold that whenever a policeman has a hunch that a citizen is engaging in criminal activity, he may engage in a stop and frisk. It held that if police officers want to stop and frisk, they must have specific facts from which they can reasonably infer that an individual is engaged in criminal activity and is armed and dangerous....Connecticut specifically authorizes persons to carry guns so long as they have a permit....Since Connecticut has not made it illegal for private citizens to carry guns, there is nothing in the facts of this case to warrant a man "of prudence and caution" to believe that any offense had been committed merely because respondent had a gun on his person.ADAMS v. WILLIAMS (06/12/72) SUPREME COURT OF THE UNITED STATES No. 70-283"

13thjuror

10-05-15 | 05:12 am

Stop Frisk Authority


"a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." ...The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape....the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. "When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," he may conduct a limited protective search for concealed weapons....So long as the officer is entitled to make a forcible stop,and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.ADAMS v. WILLIAMS (06/12/72)SUPREME COURT OF THE UNITED STATES"

13thjuror

09-06-15 | 04:24 am

Force Moment


Law enforcement officers may use only such force as is objectively reasonable under the circumstances. Id. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The inquiry into a Fourth Amendment excessive use of force claim is not assessed with 20/20 hindsight, but "depends only upon the officer's knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force." Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996). The objective reasonableness test will not be met "'if, on an objective basis, it is obvious that no reasonably competent officer would have concluded' . . . in that moment that his use of deadly force was necessary." O'Bert, 331 F.3d at 37 (quoting Malley, 475 U.S. at 341). In other words, a court should ask if "officers of reasonable competence could disagree" on the legality of the officer's actions. Malley, 475 U.S. at 341. If there could be disagreement, qualified immunity is appropriate. See id. This level of inquiry is appropriate so that the courts do not engage in "endless second-guessing of police decisions made under stress and subject to the exigencies of the moment." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)."...But the law is clear that immunity is appropriate precisely when reasonable people can disagree, and that in all events second-guessing is not appropriate. See Salim, 93 F.3d at 91 ("The Supreme Court has made it clear that an officer's actions are not to be assessed with 20/20 hindsight."). The standard is whether "officers of reasonable competence could disagree" on the legality of Det. Morrissey and Sgt. Flores's actions at the time. See Malley, 475 U.S. at 341; see also Scott, 39 F.3d at 915 ("as the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them." (citing Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983)))."...The Second Circuit has found irrelevant whether an officer "created a situation in which the use of deadly force became necessary". See Salim, 93 F.3d at 92 (any violations of police procedure and failure to disengage when other children entered the fray were "irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force"); see also Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995) ("[E]vidence that [the officers] created the need to use [deadly] force by their actions prior to the moment of seizure is irrelevant . . ."); Fraire v. City of Arlington, 957 F.2d 1268, 1275-76 (5th Cir. 1992), cert. denied, 506 U.S. 973, 113 S. Ct. 462, 121 L. Ed. 2d 371 (1992) (same).

13thjuror

09-04-15 | 12:33 pm

Legislative Intent


``It is well established that we cannot accomplish a result that is contrary to the intent of the legislature as expressed in the [statute's] plain language. . . . As we recently have reiterated, a court must construe a statute as written. . . . Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.'' State v. Singleton, 292 Conn. 734, 765-66, 974 A.2d 679 (2009).

13thjuror

06-09-15 | 01:08 am

Deadly Force Statute


Connecticut General Statutes. Section 53a-22 (c) authorizes the use of deadly force by peace officers in two instances. See generally State v. Smith, 73 Conn. App. 173, 196-98, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002). The first instance is when an officer "reasonably believes such [force] to be necessary to . . . [d]efend himself or herself or a third person from the use or imminent use of deadly physical force . . . ." General Statutes Α 53a-22 (c) (1). The second instance in which an officer is authorized to use deadly force is when the officer "reasonably believes such [force] to be necessary to . . . effect an arrest or prevent the escape from custody of a person whom he or she reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he or she has given warning [ A.3d Page 1018 ] of his or her intent to use deadly physical force." General Statutes Section 53a-22 (c) (2)."

13thjuror

05-18-15 | 10:31 am

Expert vs Training


"...so long as “a reasonable officer could have believed that his conduct was justified,” a plaintiff cannot “avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.”...“‘[I]n close cases, a jury does not automatically get to second-guess these life and death decisions, even though a plaintiff has an expert and a plausible claim that the situation could better have been handled differently’” CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, ET AL., PETITIONERS v. TERESA SHEEHAN No. 13–1412 May 18, 2015.

13thjuror

05-17-15 | 02:47 am

Threat


Connecticut - "As the model jury instruction for § 53a-62 (a) (1) from the Judicial Branch website explains: "A threat is the expression of an intention to injure another person. A physical threat is a threat accompanied by some action, such as words accompanied by a threatening gesture. A physical threat may also occur if the defendant expresses the threat in the person's presence and has the apparent ability to carry out (his/her) threat. Mere words are insufficient to constitute a physical threat; the defendant must also indicate by (his/her) actions an intent or an ability physically to carry out that threat. The conduct of a person, even without words, may be sufficient to cause fear in another person." Connecticut Criminal Jury Instructions § 6.2-3 (4th Ed. 2009), available at (last visited November 28, 2014).... State v. Bernacki, supra, 307 Conn. 22 n.16. Section 53a-62 (a) (1) provides in relevant part that "[a] person is guilty of threatening in the second degree when . . . [b]y physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . ." Section 53a-62 (a) (2) provides in relevant part that "[a] person is guilty of threatening in the second degree when . . . such person threatens to commit any crime of violence with the intent to terrorize another person . . . ."

13thjuror

05-03-15 | 02:09 am

Performance of Duty


‘‘ ‘The phrase ‘‘in the performance of his duties’’ means that the police officer is simply acting within the scope of what he’s employed to do...‘‘unreasonable and unnecessary force by a police officer would place the actions outside the performance of that officer’s duties.’’ ...a person is not required to submit to the unlawful use of physical force during the course of an arrest, whether the arrest itself is legal or illegal . . . .’’

13thjuror

05-03-15 | 02:00 am

POSTC Police Academy Training


"File # 11323 State of Connecticut: Office of Claims Commissioner February 9, 1996 The language of Conn. Gen. Statute 7-294d(1),(2),(3),(4) and (10) give the Police Officers Standards & Training Council sole authority to determine a training plan for police recruits and set established courses of study,…the specific training programs and techniques used by POST instructors in training police recruits…are discretionary in nature..."

13thjuror

05-03-15 | 01:56 am

Negligence


"Negligence is the violation of a legal duty which one person owes to another...Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances...If harm of the same general nature as that which occurred here was foreseeable, it does not matter if the manner in which the harm that actually occurred was unusual, bizarre or unforeseeable." Connecticut 3.6-3 Common-Law Negligence Defined

Negligence

05-03-15 | 01:49 am

Possibility


Because every police-citizen encounter is subject to prosecution of the officer, the at-scene facts and circumstances are evidence. "The right to one's privilege against prosecution that could result from the testimony sought does not depend upon the likelihood of prosecution but upon the possibility of prosecution.. . . The trial court is . . . obligated to assess only whether a possibility of future prosecution exists, or could arise, by virtue of the proffered testimony in light of existing law.'' In re KeijamT., 226 Conn. 497, 503-504, 628 A.2d 562 (1993)."

13thjuror

04-09-15 | 06:06 am

Deadly force fleeing standard


The Supreme Court has made plain that law enforcement officers may use deadly force to stop a suspect who poses “an actual and imminent threat to the lives of any pedestrians who might be present, to other civilian motorists, and to the officers involved,” Scott v. Harris, 550 U.S. 372, 384 (2007), and not only to protect civilians who, upon a post hoc review of security-camera footage, were in fact found to have been in the path of a fleeing suspect’s car....under Plumhoff, once Fenwick threatened bodily injury to Pudimott, the deputies were not obligated to stop firing “until the threat had ended.” ...Plumhoff v. Rickard, 134 S. Ct. 2012, 2018–19 (2014) ...“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Brosseau v. Haugen, 543 U.S. 194 (2004)...." United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 9, 2014 Decided February 13, 2015 No. 13-5130 MICHAEL FENWICK, APPELLEE v. ANDREW PUDIMOTT AND JEREMY FISCHER, APPELLANTS

13thjuror

04-08-15 | 08:40 am

State of Mind Training


APPELLATE COURT OF CONNECTICUT STATE OF CONNECTICUT v. SCOTT SMITH (AC 21991) 73 Conn. App. 173;807 A.2d 500; October 22, 2002 …Allard’s testimony regarding the training that the defendant received on the use of deadly force was relevant to the defense. It did not invade the province of the jury on the ultimate issue of fact. Rather, it would have permitted the defendant to establish his defense by assisting the jury in evaluating whether his beliefs did in fact comport with the standard of a reasonable peace officer….the exclusion of the expert testimony regarding the defendant’s training in the use of [ Conn. App. Page 202 ] deadly force was harmless beyond a reasonable doubt. The defendant, therefore, is entitled to a new trial, and we remand the case to the trial court for that purpose....the test for determining whether a police officer’s use of deadly force was reasonable is to be judged according to the subjective-objective formulation used in evaluating self-defense claims under § 53a-19. With respect to the objective part of the test, however, the reasonableness is to be judged from the perspective of a reasonable police officer....The objective reasonableness test is met if "officers of reasonable competence could disagree" on the legality of the defendant’s actions. Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)…. In determining whether the force used to effect a particular seizure is reasonable, a court must examine "the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8-9). "

13thjuror

04-04-15 | 03:56 am

701 Lay Witness


"Federal Rule of Evidence 701 provides that a lay witness‟s testimony in the form of opinions or inferences “is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness‟s testimony or todetermining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”..Hill v. United States, 541 A.2d 1285, 1288 (D.C. 1988) (allowing a police officer to testify as a lay witness about the general practice of the police department of which he was a member because it was “based on his personal knowledge”..United States v. Garcia, 413 F.3d 201 (2nd Cir. 2004), holding that “a court must focus on „the reasoning process‟ by which a witness reached his proffered opinion.”..lay testimony is that which “results from a process of reasoning familiar in everyday life,” whereas “an expert‟s testimony results from a process of reasoning which can be mastered only by specialists in the field.”"

13thjuror

04-04-15 | 02:06 am

Lay Testimony Reasonableness allowed


" United States v. Perkins, 470 F.3d 150 (4th Cir. 2006), where the court held that a police officer could give a lay opinion about the excessiveness of another officer's use of force based on his personal observations of other officers' use of force during his time as a police officer. The court held that because the observations were common enough and required such a limited amount of expertise . . . they can, indeed, be deemed lay witness opinion[s]” Perkins, 470 F.3d at 156 (quoting United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995))."

13thjuror

04-02-15 | 05:42 am

Special Relationship Duty


"The elements of this “special relationship” are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking (Mastroianni v County of Suffolk, 91 NY2d 198, 204, supra; Kircher v City of Jamestown, 74 NY2d 251, 257, supra; Cuffy v City of New York, 69 NY2d 255, 260, supra).As a general rule, a governmental agency may not be held liable for injuries resulting from a failure to provide police protection (Mastroianni v County of Suffolk, 91 NY2d 198, 203; Kircher v City of Jamestown, 74 NY2d 251, 255; Cuffy v City of New York, 69 NY2d 255, 260). The Court of Appeals has recognized potential liability stemming from the presence of a special relationship existing between the governmental agency and the injured party"... “...when the police assume a duty to assist members of the public and exercise control over them, a special duty to provide proper care and attention so that the condition of the individual requiring aid is not worsened may indeed arise..."

13thjuror

03-30-15 | 11:01 am

Training to Competence


Under physical threat, an officer will use those behaviors which have been repetitively practiced. A learner retains 90% of what he/she says and does, 10% of what they read, 20% of what they hear, 30% of what they see, and 50% of what they see and hear.Training can not afford to be "all talk and no action". Police training which is less that safe, relevant, and realistic to the tasks each officer is reasonably expected to encounter, is deliberately reckless.

13thjuror

03-18-15 | 04:10 am

Expert Opinion


“An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law” Thus, a purported expert’s opinion that a police officer’s “conduct was not ‘justified under the circumstances.’ not ‘warranted under the circumstances.’ And ‘totally improper.’” Hygh v. Jacobs 961 F.2d 359, 363 ( 2nd cir. 1992), is inadmissible. Moreover, “the fact that an expert disagrees with an officer’s actins does not render the officer’s actions unreasonable. The inquiry is not whether another reasonable or more reasonable interpretation of events can be construed … after the fact” but “whether a reasonable officer could have believed that his conduct was justified.” Reynolds v County of San Diego, 84 F.3d 1162, 1170 ( 9th Cir. 1996 ) Case 2:13-cv-03825-CAS-JCG Document 61 12/08/14."

13thjuror

03-16-15 | 05:00 am

Did God Create Evil?


Singularity – Did God create Evil? Evil & Good are fused together into the oneness. Evil co-exists with Good. Was it God’s will to create mankind without free will. Free will is the creation of evil fused with immortality. At the dawn of creation, evil was hidden from mankind as was immortality. Without free-will there is no evil. Knowledge creates choice between good & evil. Like God, mankind, in his separateness, knows the difference between Good and Evil. Immortality is fused to the combined knowledge of good and evil. God created evil as well as the good. God’s Will is Man’s Will for man is the creation of the singularity of fused good and evil. The only thing that interferes with ‘faith’ is ‘religion’ Reginald Allard, Jr"

Reginald F. Allard, Jr.

03-15-15 | 12:08 am

Firearms Trigger Locks


SUPREME COURT OF THE UNITED STATES Syllabus DISTRICT OF COLUMBIA ET AL. v. HELLER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 07–290. Argued March 18, 2008—Decided June 26, 2008 …the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional…. And requiring safety devices such as trigger locks, or imposing safe-storage requirements would interfere with any self-defense interest while simultaneously leaving operable weapons in the hands of owners (or others capable of acquiring the weapon and disabling the safety device) who might use them for domestic violence or other crimes….

13thjuror

03-06-15 | 12:54 am

Reasonable Expectation


"...reasonable expectation of the [officer] employing the physical force must be the guiding principle in making the determination whether deadly physical force was used ..."..Did the officers expect that the force used would cause death or serious physical injury, and; 2. Was this expectation objectively reasonable?..The test formulated in Smith concerns the reasonableness of an officer’s belief in the context of C.G.S. Sec. 53a-22. Nonetheless, it is an appropriate formulation for the similar determination of an officer’s reasonable expectation in the context of C.G.S. Sec. 53a-3(5), particularly in the absence of any other guiding case law to make such a determination. See generally State v. Wayne, 60 Conn. App. 761 (2000)...The training undergone by officers and the policies in place by their departments is relevant to the subjective beliefs held by the officers at the time they are deploying force. These factors may be somewhat less relevant with respect to the objective reasonableness of the belief...."In evaluating an officer’s reasonable belief under section 53a-22(c)(1), the test is both subjective and objective. First, the officer must believe that the use of deadly force is necessary to defend himself or another from the imminent use of deadly physical force. Second, that belief must be objectively reasonable. State v. Smith 73 Conn. App. 173, cert. denied 262 Conn. 923 (2002)...."The test is not whether it was in fact necessary for the officer to use deadly physical force in order to defend against the imminent use of deadly physical force. The test is whether the officer believed it was necessary to use deadly physical force and whether such belief was objectively reasonable, based on the facts and circumstances known to the police officer at the time that the decision to use deadly force was made. State v. Silveira 198 Conn. 454 (1986); State v. Adams 52 Conn. App. 643 (1999)...."Our law does not require that the police, when they reasonably perceive themselves to be fighting for their lives, retreat or use less than lethal force."..Brian Preleski State’s Attorney Judicial District of New Britain Dated: December 23, 2014Report of the New Britain State’s Attorney concerning the death of Seth Victor on September 3, 2013, in the City of New Britain"

13thjuror

03-05-15 | 02:13 am

TASER


Guidance produced by the United States Department of Justice, Office of Community Oriented Policing Services, and the Police Executive Research Forum in 2011 warns that ECWs are “‘less-lethal’ and not ‘nonlethal weapons’” and “have the potential to result in a fatal outcome.” 2011 Electronic Control Weapon Guidelines 12 (Police Executive Research Forum & U.S. Dep’t of Justice Office of Community Oriented Policing Services, Mar. 2011) (“2011 ECW Guidelines”)..Officers should be required to view the ECW as one tool among many, and “a weapon of need, not a tool of convenience.” 2011 ECW Guidelines at 11. Effective policing requires that officers not depend on ECWs, or any type of force, “at the expense of diminishing the fundamental skills of communicating with subjects and de-escalating tense encounters.”..Investigation of the Ferguson Police Department DOJ Findings Letter March 4, 2015

13thjuror

02-26-15 | 01:35 pm

Articulable Suspicion - Terry Stop


07-5359-cr United States v. Padilla The Honorable John F. Keenan, United States District Judge * for the Southern District of New York, sitting by designation. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ________________________ August Term 2008 (Argued: September 26, 2008 Decided: December 2, 2008)..While the officer may not rely on an “inchoate and unparticularized suspicion or ‘hunch,’” id. at 27, he is entitled to “draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that might well elude an untrained person.” United States v. Muhammad, 463 F.3d 115, 121 (2d Cir. 2006) (quoting Arvizu, 534 U.S. at 273 (alterations in original, internal quotation marks omitted)). Therefore, courts evaluate the circumstances surrounding the stop “‘through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.’” Bayless, 201 F.3d at 133 (quoting United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977))...“[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). Even conduct that is “as consistent with innocence as with guilt may form the basis for an investigative stop where there is some indication of possible illicit activity.” Villegas, 928 F.2d at 516. Terry recognized that a “series of acts, each of them perhaps innocent in itself,” can when “taken together warrant[] further investigation.” Terry, 392 U.S. at 22...The high-crime nature of the neighborhood was properly “among the relevant contextual considerations” in his assessment of the situation. Wardlow, 528 U.S. at 124...“There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.” Terry, 392 U.S. at 33 (Harlan, J., concurring).""

13thjuror

02-23-15 | 05:52 am

Probable Cause


"...The existence of probable cause is a complete defense to section 1983 claims of false arrest and malicious prosecution in violation of the Fourth Amendment. See Weinstock v. Wilk, 296 F. Supp. 2d 241, 247-48 (D. Conn. 2003). "Probable cause exists when there are facts and circumstances sufficient to warrant a prudent man that the suspect had committed or was committing an offense." Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). Generally, "courts consider only information the officer relied on in concluding there was probable cause and whether it was reasonable, based on that information, for the officer to conclude that probable cause existed." Stone v. Town of Westport, 411 F. Supp. 2d 77, 87 (D. Conn. 2006) (quoting Caldarola v. Calabrese, 298 F.3d 156, 168 (2d Cir. 2002)). Probable cause can come from information given by "some person, normally the putative victim or eyewitness, who it seems reasonable to believe is telling the truth." Id. "Furthermore, the veracity of citizen complainants who are the victims of the very crime they report to the police is assumed." Crocco v. Advance Stores Co. Inc., 421 F. Supp. 2d 485, 506 (D. Conn. 2006). "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)..."[A]n arresting officer􀎖s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause . . . [H]is subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Further, "a claim for false arrest turns only on whether probable cause existed to arrest a defendant, and that it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest." Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006)UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT VIRGINIA SILANO, Plaintiff, v. DANIEL WHEELER, Defendant. CIVIL CASE NO. 3:13-CV-00185 (JCH) 2015.DCT. February 5, 2015"

13thjuror

02-18-15 | 11:43 pm

Home Defense


STATE OF CONNECTICUT v. CARGIL A. NICHOLSON (AC 36021)...General Statutes § 53a-20 provides: ‘‘A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100, or place of work, and for the sole purpose of such prevention or termination.’’ General Statutes § 53a-19 provides: ‘‘(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. ‘‘(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he or she is in his or her dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he or she is a peace officer, a special policeman appointed under section 29- 18b, or a motor vehicle inspector designated under section 14-8 and certified pursuant to section 7-294d, or a private person assisting such peace officer, special policeman or motor vehicle inspector at his or her direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform. ‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.’’ 3 General Statutes § 53a-16 provides: ‘‘In any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.’’"..The court instructed the jury on the use of deadly physical force as follows: ‘‘The penal code of Connecticut gives a person who is in his or her home the right to use reasonable physical force against another person when to the extent the occupant of the home reasonably believes that such force is necessary to prevent or terminate a criminal trespass. The code limits the use of deadly physical force against a trespasser to three factual situations. These situations are as follows. ‘‘First, an occupant of a home may use deadly physical force against a trespasser to defend the occupant or another person if the occupant reasonably believes the trespasser is using or about to use deadly physical force or is inflicting or about to inflict great bodily harm. Second, an occupant of a home may use deadly physical force when the occupant reasonably believes such force is necessary to prevent an attempt by the trespasser to commit any crime of violence. Third, an occupant of a home may use deadly physical force to the extent the occupant reasonably believes such force is necessary to prevent or terminate an unlawful entry by force into the home. The homeowner or occupant may use such means as are absolutely necessary, even taking a life, to prevent the intruder’s unlawful and forced entry. The deadly force must be used solely for the purpose of resisting a forceful and unlawful entry. ‘‘A killing is not justified if the resistance to the intruder’s entry is greater in degree than necessary. A killing is not justified if the occupant takes an opportunity of an unlawful entry to kill the intruder in order to gratify the occupant’s hatred, malice, or ill will. The three justification rules that I have just described apply to trespassers.’’ Additionally, the court gave further instructions on each of the three factual situations that permit the use of deadly physical force under § 53a-20. The defendant makes no claim that these instructions were inadequate.".

13thjuror

02-16-15 | 10:02 am

Untrained


Judge Janet Hall of the U.S. District Court - Connecticut -"an officer who has not been trained in proper, constitutional felony stop procedures has implicitly been left untrained as to how to recognize when such procedures are unlawfully employed by others.  Similarly, a policy that requires officers only to report the force they themselves use encourages them only to note and monitor their own force, not that of others."

13thjuror

02-11-15 | 05:58 am

Self Right


‘‘ ‘no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ . ."

13thjuror

02-07-15 | 05:30 am

Grand Jury Immunity


In Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012), the Supreme Court announced the bright line rule that a grand jury witness, including a law enforcement officer, "has absolute immunity from any § 1983 claim based on the witness' testimony," even if that testimony is perjurious. The Rehberg Court thereby expressly extended to grand jury witnesses, including police officers, the same immunity that had previously been enjoyed by witnesses at trial.*fn6Id. This holding was consistent with the understanding that, despite its broad terms, 42 U.S.C. § 1983 does not effect a radical departure from common-law immunities. Id. at 1502; see also Pierson v. Ray, 386 U.S. 547, 554-55 (1967)"..we have accorded only qualified immunity to law enforcement officials who falsify affidavits and fabricate evidence concerning an unsolved crime."...In Marshall v. Randall, 719 F.3d 113, 114 (2d Cir. 2013), the plaintiff sued for damages arising from police officers' use of false information in his arrest. On appeal, the officers challenged "the use of their grand jury testimony as violative of the rule in Rehberg." Id. at 115. We held that "the grand jury testimony was properly admitted for impeachment purposes and that the manner in which it was used at trial did not contravene the rule in Rehberg." Id. at 116. As Marshall demonstrates, grand jury testimony may ultimately be admissible on summary judgment or at trial for a purpose other than for its truth, for example, for impeachment."

13thjuror

02-02-15 | 12:12 pm

War of Words


‘‘Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend [on] the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.’’ Marroquin v. F. Monarca Masonry, 121 Conn. App. 400, 419, 994 A.2d 727 (2010)...It is also important to note that ‘‘[i]t [is] within the commissioner’s discretion to credit all, part or none of the expert testimony presented at the hearing.’’ Dixon v. United Illuminating Co., 57 Conn. App. 51, 59, 748 A.2d 300, cert. denied, 253 Conn. 908, 753 A.2d 940 (2000)."

13thjuror

01-28-15 | 04:14 am

Self-Defense


In State v. Rodriguez, 195 N.J. 165 (2008), our Supreme Court "held that a person who acts in self-defense and 'kills in the honest and reasonable belief that the protection of his own life requires the use of deadly force' cannot be convicted of murder, aggravated manslaughter, or manslaughter." State v. O'Neil, 219 N.J. 598, 601 (2014) (quoting Rodriguez, supra, 195 N.J. at 172). As recently emphasized in O'Neil, the Court has "put to rest the 'mistaken assertion' in State v. Moore, 158 N.J. 292, 303 (1999), that a defendant charged with aggravated manslaughter and manslaughter could not assert self-defense." Id. at 602... self-defense is a complete justification for manslaughter offenses as well as for murder ...

13thjuror

01-24-15 | 03:30 am

Belief Rodeo


"...proper application of the necessary and proper standard "does not require an officer to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be...even if his interpretation or perception was ultimately mistaken....STATE OF NEW YORK v. TANELLA, No. 02-CR-1343 (NGG) (E.D.N.Y. 09/03/2003).""..a key question in this inquiry is whether a suspect poses an "immediate" threat, not a "possible" threat...‘reasonableness’ of a particular seizure depends not only on when it is made, but also on how it is carried out”.

13thjuror

01-22-15 | 02:26 am

Some, All Or None


From what I know of experience, knowledge of human nature, common sense, and awareness of the motives which influence and control human nature I believe some, all or none of what I believe.

13thjuror

01-13-15 | 08:54 am

Expert Qualifications


‘‘It is well settled that [t]he true test of the admissibility of [expert] testimony is . . . whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.’’ State v. Banks, 117 Conn. App. 102, 116, 978 A.2d 519 (2009)."

13thjuror

01-02-15 | 09:09 am

TASER as Significant Force


"Tracy involved pepper spray; it did not involve a taser. But just as in Tracy, a jury here could reasonably determine on this record that Healy no longer posed a threat to the arresting officers at the time he was repeatedly tased. And as in Tracy, the use of force here was "significant," "somewhere in the middle of the nonlethal-force spectrum" and "on par with pepper spray." See Abbott, 705 F.3d at 724; see also Defs.' Reply Mem. 10. It was therefore clearly established law in the Second Circuit as of April 2000 that it was a Fourth Amendment violation to use "significant" force against arrestees who no longer actively resisted arrest or posed a threat to officer safety, regardless of whether that significant force emanated from a pepper spray canister or the trigger of a taser. See Tracy, 623 F.3d at 98; Bailey, 708 F.3d at 405; Terebesi, No. 12-3867, 2014 U.S. App. LEXIS 16133, slip op. at 33 & n.20.

13thjuror

12-29-14 | 12:58 pm

You be the JUDGE


It is not reasonably possible for an officer to re-create, in a mechanical fashion, moment by moment re-construction of a police-citizen encounter. Individual police custody decisions should not be judged in artificial isolation. The entirety- totality of the factual circumstances-must be explored to reach a justification judgment for whatever the intended use of force was. Any lesser test would lead to a reasonably possible result of injustice, both to the officer and the community. The ‘media’ is NOT one of the three forms of government, i.e. Executive, Legislative, Judicial. The ‘media’ cannot create facts or evidence. Only the trier of fact(i.e., the jury) and the judge are allowed such authority, albeit with a retrospective downward decision-making process. You be the judge does NOT mean you be the JUDGE.

13thjuror

12-05-14 | 07:25 am

DOJ Findings Letter


Cleveland Ohio December 4, 2014 - "A police officer may not use deadly force against an unarmed and otherwise non-dangerous subject, Sixth Circuit has recognized that “even when a suspect has a weapon, but the officer has no reasonable belief that the suspect poses a danger of serious physical harm to him or others, deadly force is not justified.” Bouggess v. Mattingly, 482 F.3d 886, 896 (6th Cir. 2007) (emphasis in original). In order to justify the use of deadly force, an officer’s “sense of serious danger about a particular confrontation” must be both “particularized and supported.” Id. at 891. In making our determination under Section 14141 it is not necessary to show that there is a pattern or practice of intentional or criminal misconduct by individual officers in their unreasonable use of force, and we make no such finding in this letter.In order to justify the use of deadly force, an officer’s “sense of serious danger about a particular confrontation” must be both “particularized and supported.” Id. at 891. In making our determination under Section 14141 it is not necessary to show that there is a pattern or practice of intentional or criminal misconduct by individual officers in their unreasonable use of force, and we make no such finding in this letter.""...simply saying that an officer’s or a Department’s actions are not criminal, does not mean that no Constitutional problem exists...""..The goal in addressing a dangerous situation should be to use the amount of force needed to protect the officer and the public, not to continually inflict pain on a suspect who is unable to rationally comply with police commands."

13thjuror

12-05-14 | 07:04 am

Inadequate Training


Inadequate training can be a basis for municipal liability "in limited circumstances." City of Canton, 489 U.S. at 387. "Only where a municipality's failure to train its employees in a relevant respect evidences a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city 'policy or custom' that is actionable under § 1983." Id. at 389. "[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)."In order to establish that a failure to train constitutes deliberate indifference to the constitutional rights of the public, a plaintiff must establish (1) that the policymaker knows 'to a moral certainty' that his employees will confront a given situation; (2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or there is a history of employees mishandling the situation; and finally (3) that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Wilson v. City of Norwich, 507 F.Supp.2d 199, 210 (D.Conn. 2007) (citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992)). City of Canton requires that a plaintiff identify a specific deficiency in the municipality's training program and establish that the deficiency is "closely related to the ultimate injury," such that it "actually caused" the constitutional violation. 489 U.S. at 391. Thus, a plaintiff must establish that "the officer's shortcomings . . . resulted from . . . a faulty training program" rather than from the negligent administration of a sound program or other unrelated circumstances. Id. at 390-91. it is not sufficient to show that only a particular officer is unsatisfactorily trained, because "the officer's shortcomings may have resulted from factors other than a faulty training program."

13thjuror

12-01-14 | 05:10 am

State of Mind


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2003 (Argued: April 21, 2004 Decided: June 30, 2004) Docket No. 03-1589 ..First, regarding Tanella’s subjective belief, the State relies on eyewitness testimony that Dewgard was moving away from Tanella to demonstrate that Tanella did not actually believe that Dewgard was reaching for his (Tanella’s) gun. …testimony of Edward John in arguing that Dewgard “managed to get two or more steps away from [Tanella] when [Tanella] shot Dewgard in the back.” Based on John’s testimony, the State contends that Tanella unjustifiably shot Dewgard to prevent his escape. John’s testimony that Dewgard was beginning to move away from Tanella, however, fails to raise a genuine issue of fact about Tanella’s state of mind when he shot Dewgard. See Long, 837 F.2d at 744. Indeed, the testimony does not establish that Tanella “acted wantonly” or with “criminal intent.” In re Fair, 100 F. 149, 155 (D. Neb. 1900). Nor does the testimony suggest that Tanella had any “motive other than to do his job under circumstances as they appeared to him.” Long, 837 F.2d at 744; see also In re Lewis, 83 F. 159, 160 (D. Wash. 1897) (“[W]here there is no criminal intent on his part he does not become liable to answer to the criminal process of a different government.”). To reiterate, the issue is not whether Dewgard was actually beginning to run, but whether Tanella’s belief that Dewgard was about to grab his (Tanella’s) gun was reasonable from Tanella’s viewpoint.

13thjuror

10-16-14 | 04:42 am

Video Prejudice


"15. It is further found, based upon the testimony of attorney Gailor and the in camera inspection, that if IC-2006-020-1 was disclosed, it would be prejudicial to a prospective law enforcement action, because of the potential for influencing witness testimony. Independent recollections of witnesses could be tainted if witnesses have an opportunity to view the videotape. Through the power of suggestion, witnesses could believe they remember events that they did not see. Moreover, if third parties view the videotape, these third parties may attempt to persuade witnesses that they saw something different from what they previously thought they saw."FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT Docket #FIC 2006-020 August 9, 2006

13thjuror

10-15-14 | 10:02 am

State of Mind


State of Connecticut v. Scott Smith, No. AC 21991 (Conn.App.10/22/2002)"Allard's testimony regarding the training that the defendant received on the use of deadly force was relevant to the defense. It did not invade the province of the jury on the ultimate issue of fact. Rather, it would have permitted the defendant to establish his defense by assisting the jury in evaluating whether his beliefs did in fact comport with the standard of a reasonable peace officer." "Test: not whether an officer personally believed he was in jeopardy, rather the question is whether the officer reasonably believed he was at risk. That is, what a reasonably well-trained officer would have believed.""

13thjuror

10-11-14 | 04:50 am

Feet as Dangerous Instruments


STATE OF CONNECTICUT v. KEVIN J. MCCOLL (AC 20624) Mihalakos, Flynn and Dupont, Js. Argued September 17, 2002- officially released January 21, 2003 …whether the ``feet and footwear'' in the manner used were a dangerous instrument….consider whether an unshod foot could be a dangerous weapon…question is whether the instrument, that is, the ``feet and footwear'' of the defendant, as used, was capable of causing serious physical injury…``Instrument'' is not defined in the General Statutes. One dictionary provides that an instrument is ``a means whereby something is achieved, performed or furthered.'' Merriam-Webster's Collegiate Dictionary (10thEd. 1993)…. Using that definition, we conclude that an ordinary object may be a dangerous instrument. Therefore, ``[e]ach case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury.'' State v. Barnett, 53 Conn. App.581, 590, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 …A.2d 659 (1999). The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury. State v. Mercer, 29 Conn. App. 679, 682±83, 617 A.2d 916(1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993);see, e.g., State v. Sawicki, 173 Conn. 389, 392±94, 377A.2d 1103 (1977) (state permitted to present testimony that defendant's shod foot was dangerous instrument);State v. McFadden, 25 Conn. App. 171, 173±75, 593 A.2d979 (jury allowed to consider whether shod foot, fist, cement floor or combination of any was used as dangerous instrument under facts of case), cert. denied, 220Conn. 906, 593 A.2d 972 (1991); State v. Johnson,14Conn. App. 586, 597, 543 A.2d 740 (``jury could reasonably have concluded that the defendant's act of kicking the victim with his shod foot was, under the circumstances, the use of a deadly instrument''), cert. denied,209 Conn. 804, 548 A.2d 440 (1988).We conclude that ``feet and footwear'' can be a dangerous instrument in some circumstances. As the court properly instructed, the question of whether the defendant's ``feet and footwear'' were a dangerous instrument is a question for the jury's consideration under the given circumstances. Having concluded that ``feet and footwear'' can be a dangerous instrument in some circumstances…``feet and footwear'' were a dangerous instrument because under the circumstances in which they were used or attempted or threatened to be used, the repeated kicking of the victim in the midsection rendered the defendant's ``feet and footwear'' capable of causing death or serious physical injury….The jury reasonably could have found that the ``feet and footwear'' were a dangerous instrument in the manner in which they were used because of the size of the defendant, the age and health condition of the victim, the location of the kicking, and the number and force of the kicks, which was intensified by the weight of the footwear…it was reasonable for the jury to find that the defendant had used a dangerous instrument, his ``feet and footwear,'' to cause physical injury to the victim….

13thjuror

10-10-14 | 05:07 am

Qualified Immunity 2nd Cir


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT GARCIA v. CITY OF NEW YORK Qualified immunity therefore allows for "reasonable mistakes" in an officer's application of law to fact. Saucier, 533 U.S. at 205.Contrary to well-settled precedent, the majority dispenses with this protection for the police officers at the Brooklyn Bridge. The majority asserts that qualified immunity would be appropriate at the motion to dismiss stage in this case only if, based on the plaintiffs' account of events, "no officer who participated in or directed the arrests could have thought [that the plaintiffs' rights were violated]." Maj. Op. 23. This is the wrong standard. Under Supreme Court and Second Circuit precedent, officials are granted qualified immunity if government actors "of reasonable competence could disagree on the legality of the action at issue in its particular factual context," Manganiello, 612 F.3d at 165. "In an unlawful arrest action," moreover, "an officer is . . . subject to suit only if his 'judgment was so flawed that no reasonable officer would have made a similar choice.'" Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir. 2001) (quoting Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995)) (emphasis added); accord Walczyk v. Rio, 496 F.3d 139, 163 (2d Cir. 2007). Thus, to be protected by qualified immunity officers need not show, as the majority's erroneous (and demanding) articulation requires, that "no officer" could have thought the challenged conduct was unconstitutional. Rather, defendants need only show that at least one reasonable officer, taking the plaintiffs' allegations as true, could believe such conduct fell within constitutional constraints.*fn5 *fn5The majority's "no officer" reformulation of the qualified immunity test is contrary to this Circuit's precedent, see, e.g., Provost, 262 F.3d at 160; Walczyk, 496 F.3d at 163; see also id. at 169-70 (Sotomayor, J., concurring) (recognizing that this Circuit applies the "reasonable officers could disagree" standard), and also separates this Court from the six other circuits that have held that qualified immunity is appropriate when officers of reasonable competence could disagree on the constitutionality of the challenged conduct.

13thjuror

09-01-14 | 03:10 am

Re-calibrating the Use of Force


UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK DENISE ANN GARCIA, as Administrator of the Estate of JAMES J. HEALY, JR., Deceased, Plaintiff, -against- DUTCHESS COUNTY, DUTCHESS COUNTY SHERIFF'S OFFICE, and DEPUTY BENJAMIN SISTARENIK, Defendants. 11-Cv-1466 (SHS) 2014.SNY. August 21, 2014 Meyers v. Baltimore Cnty., 713 F.3d 723, 733 (4th Cir. 2013) ("force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated")…. Healy was neither "actively resisting arrest" nor "pose[d] a continuing threat to the officers' safety." …Several courts of appeals have determined that similar conduct by arrestees does not rise to the level of "active resistance." See, e.g., id. (when an arrestee "stiffened his body, keeping it rigid while he was on the ground" as "several officers sat on the arrestee's back, he was "no longer actively resisting arrest, and did not pose a continuing threat to the officers' safety"); Mattos, 661 F.3d at 445 (an arrestee who "refused to get out of her car when requested to do so and later stiffened her body and clutched her steering wheel to frustrate the officers' efforts to remove her from her car" "engaged in some resistance to arrest" but not to a degree that would preclude a jury from determining that use of a taser was constitutionally excessive); Cyrus, 624 F.3d at 858, 863 (when a suspect "tucked" his hands "underneath his stomach and . . . did not comply with the officers' commands to produce them for handcuffing," summary judgment in favor of the officers was "inappropriate" in significant part because despite the suspect's "refus[al] to release his arms for handcuffing," the officers "knew that [the suspect] was unarmed and there was little risk [he] could access a weapon" while restrained); see also Gravelet-Blondin, 728 F.3d at 1092 (a suspect who "continually ignored officer commands to remove his hands from his pockets" and to produce his hands for handcuffing was not "particularly bellicose," so "the third Graham factor offered little support for the use of significant force against him")….Sistarenik's failure to warn Healy before tasing him the first time and Sistarenik's failure to give Healy any time to recover before administering the taser again. Several courts have noted that an "officer's failure to warn" before using a taser "when it is plausible to [warn], weighs in favor of finding a constitutional violation." See Mattos, 661 F.3d at 451; Negron v. City of New York, 976 F. Supp. 2d 360, 367 (E.D.N.Y. 2013) (collecting cases), appeal docketed, No. 13-4220 (2d Cir. Nov. 1, 2013). Courts have similarly weighed as a relevant circumstance in the constitutional analysis the fact that an officer administered multiple "tasings in such rapid succession providing no time for [an arrestee] to recover from the extreme pain she experienced, gather herself, and reconsider her refusal to" submit to being arrested.*fn12See, e.g., Mattos, 661 F.3d at 445….it is "generally . . . unreasonable for officers to deploy a taser against a misdemeanant who is not actively resisting arrest." See Abbott, 705 F.3d at 730 (collecting cases); see also Meyers, 713 F.3d at 734; Austin v. Redford Twp. Police Dep't, 690 F.3d 490, 498 (6th Cir. 2012); Mattos, 661 F.3d at 446, 451; Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009); Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009); Parker, 547 F.3d at 11; Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007)…. "the fact that an initial use of force" - to physically restrain Healy - was "justified does not mean that all subsequent uses of . . . force were similarly justified." See Abbott, 705 F.3d at 729; see id. at 731. In the course of responding to evolving scenarios, officers may encounter circumstances that compel them to recalibrate the amount of force deployed. See, e.g., Tracy, 623 F.3d at 98…. …was it clearly established on March 10, 2010 that in effectuating a lawful arrest, an officer used excessive force by firing a taser in stun mode against an individual not suspected of a crime and who no longer actively resisted arrest?... the use of force here was "significant," "somewhere in the middle of the nonlethal-force spectrum" and "on par with pepper spray." See Abbott, 705 F.3d at 724…It was therefore clearly established law in the Second Circuit as of April 2000 that it was a Fourth Amendment violation to use "significant" force against arrestees who no longer actively resisted arrest or posed a threat to officer safety, regardless of whether that significant force emanated from a pepper spray canister or the trigger of a taser. See Tracy, 623 F.3d at 98; Bailey, 708 F.3d at 405; Terebesi, No. 12-3867, slip op. at 33 & n.20….The fact that many of these decisions involve the use of tasers in dart rather than stun mode is not a dispositive difference, given that both methods of deploying a taser constitute "significant" force in Fourth Amendment jurisprudence. See Tracy, 623 F.3d at 98; Abbott, 705 F.3d at 724…. *fn7The report of plaintiff's expert Charles W. Drago, a former police instructor and member of the Florida Department of Law Enforcement Commission on Standards and Training, concludes that Sistarenik "did not give . . . Healy the opportunity to comply with his commands" within a reasonable time period and "did not take the time to announce that he was going to deploy the Taser again as required in nationally accepted protocols." (See Ex. I to Posner Aff. at 11.)

13thjuror

08-25-14 | 04:23 am

Shooting Justification


UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2003 (Argued: April 21, 2004 Decided: June 30, 2004) Docket No. 03-1589 STATE OF NEW YORK, v. JUDE TANELLA, “necessary and proper” …two conditions must be satisfied…: (1) the actor must subjectively believe that his action is justified; and (2) that belief must be objectively reasonable. Whitehead, 943 F.2d at 234; see also Long, 837 F.2d at 745 (“On the subjective side, the agent must have an honest belief that his action was justified. On the objective side, his belief must be reasonable.”). A defendant, however, need not “show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be.” Clifton v. Cox, 549 F.2d 722, 728 (9th Cir. 1977). Because we hold, as a matter of law, both that Tanella honestly believed his life to be in danger and that his belief was objectively reasonable, we affirm the judgment of the district court. A. Prior “Necessary and Proper” Case Law First, regarding Tanella’s subjective belief, the State relies on eyewitness testimony that Dewgard was moving away from Tanella to demonstrate that Tanella did not actually believe that Dewgard was reaching for his (Tanella’s) gun. …testimony of Edward John in arguing that Dewgard “managed to get two or more steps away from [Tanella] when [Tanella] shot Dewgard in the back.” Based on John’s testimony, the State contends that Tanella unjustifiably shot Dewgard to prevent his escape. John’s testimony that Dewgard was beginning to move away from Tanella, however, fails to raise a genuine issue of fact about Tanella’s state of mind when he shot Dewgard. See Long, 837 F.2d at 744. Indeed, the testimony does not establish that Tanella “acted wantonly” or with “criminal intent.” In re Fair, 100 F. 149, 155 (D. Neb. 1900). Nor does the testimony suggest that Tanella had any “motive other than to do his job under circumstances as they appeared to him.” Long, 837 F.2d at 744; see also In re Lewis, 83 F. 159, 160 (D. Wash. 1897) (“[W]here there is no criminal intent on his part he does not become liable to answer to the criminal process of a different government.”). To reiterate, the issue is not whether Dewgard was actually beginning to run, but whether Tanella’s belief that Dewgard was about to grab his (Tanella’s) gun was reasonable from Tanella’s viewpoint. Given the circumstances surrounding the shooting, such evidence is insufficient to defeat Tanella’s federal immunity defense that during the course of the close-quarter struggle he honestly and reasonably judged Dewgard’s sudden movement to be an attempt to reach for his (Tanella’s) gun. We need not and do not decide that Tanella correctly evaluated the circumstances, but only that he honestly and reasonably perceived Dewgard as a threat to his life. See Clifton, 549 F.2d at 728 (noting that immunity “does not require [an officer] to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be”); Lipsett, 156 F. at 71 (stating that a federal officer is “not liable to prosecution in the state court from the fact that from misinformation or lack of good judgment he transcended his authority”).

13thjuror

08-18-14 | 06:15 am

Extra Shots Fired


Statistics reveal that about 90% of shooting incidents take place within a three-second time frame. Within this time frame, a police officer takes appropriate steps to stop the threat and rarely, if ever, engages in a decision-making process about his intent or the degree of injury that will be inflicted. The realistic motivation is primarily reactive and designed to stop the threat or the aggressive behavior. Attempts to shoot to wound or to injure are unrealistic and because of high-miss rates and poor stopping effectiveness can prove dangerous for police officers and others. “International Association of Chiefs of Police National Law Enforcement Policy Center, “ Use of Force”, Concepts and Issue Paper, February 1, 1989. p.4. …The jury found that extra shots fired were due to a delayed response before the officer realized he was out of danger “Townsell v. Lewis, 938 Fed. Supp 728 (U.S.D.C. Kansas 1996) …When deadly force is permitted under this policy, attempts to shoot to cause minor injury are unrealistic and can prove dangerous to agents and others, because they are unlikely to achieve the intended purpose of bringing an imminent danger to a timely halt…” F.B.I. Training on The New Federal Deadly Force Policy,” F.B.I. Law Enforcement Bulletin, April, 1996

13thjuror

08-02-14 | 10:05 am

Golden Rule Violation


"With respect to the prosecutor’s comment inviting the members of the jury to place themselves in the shoes of a police officer and asking what they would do in the present situation, we conclude that the comment was improper because it violated the prohibition against golden rule arguments. Specifically, it encouraged the members of the jury to decide the case not on the basis of the facts of the case, but rather on their emotions and passions. Put another way, the prosecutor’s comment inviting the jurors to place themselves in the shoes of a police officer was tantamount to a request for sympathy and a recognition of the challenging tasks facing police officers. Accordingly, we conclude that this comment was improper."State v. Daniel G., AC 33653 (Conn.App. 01/21/2014)...jurors should be encouraged to decide cases on the basis of the facts as they find them, and reasonable inferences drawn from those facts, rather than by any incitement to act out of passion or sympathy for or against any party. . . . Although we recognize that this danger is most acute when the prosecutor asks the jurors to put themselves in the position of the victim rather than the defendant or another witness . . . we conclude that the principle barring the use of such arguments is the same regardless of which individual is the subject of the prosecutor’s emotional appeal.’’

13thjuror

07-14-14 | 10:24 am

Connecticut Expert


STATE OF CONNECTICUT v. DUSTIN RUOCCO (AC 34763) Alvord, Keller and Harper, Js. Argued March 5-officially released July 22, 2014 (Appeal from Superior Court, judicial district of New Haven, Moore, J.) ``This court recently articulated the test for the admission of expert testimony . . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.'' Id.,157-58… In order to possess the requisite skill or knowledge to qualify as an expert, ``[i]t is not essential that an expert witness possess any particular credential . . . so long as his education or experience indicate that he has knowledge on a relevant subject significantly greater than that of such persons lacking such education or experience.'' Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 62, 717 A.2d 724 (1998).An expert witness' special skill or knowledge ``may emanate from a myriad of sources, such as teaching, scholarly writings, study or practical experience.'' Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489(1990). Regardless of the source of the expert's specialized knowledge, a court properly may preclude testimony if the expert's knowledge does not pertain to the specific matter at issue. See Baranowski v. Safeco Ins.Co. of America, 119 Conn. App. 85, 97, 986 A.2d 334(2010) (out-of-state insurance agent precluded from testifying as expert because expert had not ``acquired sufficient knowledge, either from reading, experience or course work, of the applicable standard of care in Connecticut in 1998'').

13thjuror

06-29-14 | 02:51 am

Put yourself in the policeman’s shoes. What would you do?


a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited . . . and must not impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. . . . the common-law rule that everyone is presumed to know the law and that ignorance of the law excuses no one from criminal sanction.’’ State v. Knybel, 281 Conn. 707, 713, 916 A.2d 816 (2007). , ‘‘a legislature [must] establish minimal guidelines to govern law enforcement.’’‘‘[A] golden rule argument is one that urges jurors to put themselves in a particular party’s place . . . or into a particular party’s shoes. . . . Such arguments are improper because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. . . . They have also been equated to a request for sympathy. . . . With respect to the prosecutor’s comment inviting the members of the jury to place themselves in the shoes of a police officer and asking what they would do in the present situation, we conclude that the comment was improper because it violated the prohibition against golden rule arguments. Specifically, it encouraged the members of the jury to decide the case not on the basis of the facts of the case, but rather on their emotions and passions. Put another way, the prosecutor’s comment inviting the jurors to place themselves in the shoes of a police officer was tantamount to a request for sympathy and a recognition of the challenging tasks facing police officers. Accordingly, we conclude that this comment was improper.STATE OF CONNECTICUT v. DANIEL G.(AC 33653)January 21, 2014.

13thjuror

06-29-14 | 02:33 am

Reasonable Mistake


"We agree with the trial court that General Statutes 53a-19 (a) embraces a reasonable mistake of fact of the type asserted by the defendant in this claim of error. The trial court charged, in reference to the defendant's belief in the necessity of using deadly physical force: "Now he may be wrong in such belief, but if it has a reasonable basis, if he has a reasonable basis to believe that an assault against himself or against Mr. Magalhaes was about to take place and that the actors were about to use deadly physical force or force capable of inflicting great bodily harm, he is justified in using deadly physical force . . . ." 01/28/86 State of Connecticut v. Silveira

13thjuror

06-23-14 | 02:13 pm

The Golden Rule Violation


With respect to the prosecutor’s comment inviting the members of the jury to place themselves in the shoes of a police officer and asking what they would do in the present situation, we conclude that the comment was improper because it violated the prohibition against golden rule arguments. Specifically, it encouraged the members of the jury to decide the case not on the basis of the facts of the case, but rather on their emotions and passions. Put another way, the prosecutor’s comment inviting the jurors to place themselves in the shoes of a police officer was tantamount to a request for sympathy and a recognition of the challenging tasks facing police officers. Accordingly, we conclude that this comment was improper.This court has stated that it is improper for a prosecutor to invite the jury to consider the conduct of the defendant through the lens of the prosecutor’s own life experiences. STATE OF CONNECTICUT v. DANIEL G. (AC 33653)January 21, 2014

13thjuror

06-19-14 | 03:21 pm

Employee Speech


"Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment."...Sworn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. See, e.g., 18 U. S. C. §1623 (criminalizing false statements under oath in judicial proceedings); When the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee."...the Eleventh Circuit read Garcetti far too broadly. It reasoned that, because Lane learned of the subject matter of his testimony in the course of his employment with CITY, Garcetti requires that his testimony be treated as the speech of an employee rather than that of a citizen. See 523 Fed. Appx., at 712. It does not."But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” Id., at 421. In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties."...It bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment."...Lane’s testimony is also speech on a matter of public concern. Speech involves matters of public concern “when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder v. Phelps, 562 U. S. ___, ___ (2011) (slip op., at 6–7)"...There is no evidence, for example, that Lane’s testimony at Schmitz’ trials was false or erroneous or that Lane unnecessarily disclosed any sensitive, confidential, or privileged information while testifying. 5 In these circumstances, we conclude that Lane’s speech is entitled to protection under the First Amendment. The Eleventh Circuit erred in holding otherwise and dismissing Lane’s claim of retaliation on that basis."...Lane v Franks

13thjuror

05-29-14 | 01:28 pm

20/20 Hindsight Jury Charge


"...police officers are justified in using reasonable physical force upon another person when and to the extent that they reasonably believe it necessary to effect an arrest or defend themselves or a third person from the use or imminent threat of use of physical force while effecting an arrest. In order to comply with this requirement, a police officer is not required to consider and dismiss the possibility of using any other alternative type or degree of force which may have been available to him at the time he was confronted with the decision to use force in order apprehend the plaintiff. The Constitution merely requires that whatever degree of force a police officer chooses to use be objectively reasonable under the totality of the circumstances, not that the officer pursue the most prudent course of conduct as judged by the perfect vision of 20/20 hindsight."

13thjuror

05-29-14 | 01:23 pm

Eyes of a Reasonable Officer


"In determining whether an officer’s use of force is objectively reasonable, you must view the circumstances with which the officer was confronted through the eyes of a reasonable and cautious police officer on the scene guided by his training and experience. You must keep in mind that a trained, experienced police officer may perceive danger where an untrained observer would not. Police officers are allowed to draw upon their own experience and specialized training to make inferences and deductions about the cumulative information available to them that might well elude an untrained person." Authority: United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed. 2d 740 (2002); Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); United States v. Barlin, 686 F.2d 81, 86 (2d Cir. 1982); United States v. Rideau, 969 F.2d 1572, 1575 (5th Cir. 1992).

13thjuror

05-24-14 | 10:21 am

Conceal Carry Arrest


United States v. Redick, No. 3:05CR168 (D. Conn. 04/05/2006)...As a preliminary matter, the Court notes that, once it was revealed that Mr. Redick had been concealing a firearm in his waistband, police officers had probable cause to arrest him on suspicion of illegally possessing the weapon. See Adams v. Williams, 407 U.S. 143, 148 (1972) (holding, in the context of a Terry stop, that "[o]nce [the police officer] had found the gun precisely where the informant had predicted, probable cause existed to arrest [defendant driver] for unlawful possession of the weapon"); see also State v. Williams,59 Conn. App. 771 (2000) ("'In determining whether the police officers had probable cause to arrest the defendant for carrying a weapon in a motor vehicle, we also note that probable cause may exist even without ascertaining whether the defendant had a permit to carry the weapon discovered.'" (quoting State v. Lizotte, 11 Conn. App. 11, 19 (1987) cert. denied, 204 Conn. 806 (1987))reversed on other grounds by State v. Williams, 258 Conn. 1 (2001))). Discovery of the weapon in Mr. Redick's waistband -- precisely the kind of handgun the informant said he would have and precisely where the informant said it would be...United States v. Alexander, 907 F.2d 269, 272 (2d Cir. 1990) ("a law enforcement agent, faced with the possibility of danger, has a right to take reasonable steps to protect himself and an obligation to ensure the safety of innocent bystanders, regardless of whether probable cause to arrest exists.").

13thjuror

04-23-14 | 12:13 pm

Qualified Immunity


In Shabazz v. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988)...Law can be clearly established for purposes of qualified immunity analysis, even in the absence of specific authority directly on point, if state court decisions “clearly foreshadow a particular ruling on the issue.” Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997). Indeed, as the Second Circuit noted in Shabazz, the absence of case law can be explained in part because police departments have “seen the writing on the wall” and trained their officers to avoid arrests they know will pose constitutional problems.

13thjuror

01-15-14 | 07:26 am

Objectively Reasonable Standard


State v. Smith, No. AC 21991 (Conn.App. 10/22/2002)"...The objective part of the test under General Statutes § 53a-19 requires the jury to measure the defendant's honest belief against the standard of a reasonable person in the defendant's circumstances. State v. Prioleau, 235 Conn. 287.... the objective part of the test under General Statutes § 53a-22, however, the standard is that of a reasonable peace officer.... The defendant argues that this evidence was admissible to show the objective reasonableness of his belief that the use of deadly force was justified, judged against the "reasonable peace officer" standard. We agree.... The evidence, the defendant argues, would have assisted the jury in analyzing the defendant's state of mind and his conduct during the forty seconds that elapsed between the time when he first encountered the victim and when he fired the shot that killed the victim. We agree.... We conclude that the test for evaluating self-defense claims pursuant to § 53a-22 is a subjective-objective test.... the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable police officer in the defendant's circumstances. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (evaluating reasonableness of police officer's belief that deadly force justified in context of fourth amendment excessive use of force claims, stating that "[t]he [objective] reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight"); Weyel v. Catania, 52 Conn. App. 292, 296, 728 A.2d 512 (all claims that law enforcement officers have used excessive force in the course of an arrest, whether deadly force or not, should be analyzed under the reasonableness standard of the fourth amendment), cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).... we agree with him that if he were to be sued for damages under 42 U.S.C. § 1983, he would be entitled to have his civil jury instructed under the Graham standard... "[a]s a general proposition, the 'objective reasonableness' standard may be comprehensible to a lay juror. On the other hand, any 'objective' test implies the existence of a standard of conduct, and, where the standard is not defined by the generic--a reasonable person--but rather by the specific--a reasonable officer--it is more likely that [federal rule of evidence] 702's line between common and specialized knowledge has been crossed."... Allard's testimony regarding the training that the defendant received on the use of deadly force was relevant to the defense. It did not invade the province of the jury on the ultimate issue of fact. Rather, it would have permitted the defendant to establish his defense by assisting the jury in evaluating whether his beliefs did in fact comport with the standard of a reasonable peace officer... The proposed charge stated in relevant part that "[t]he amount and degree of force that the officer uses must be reasonable. It must be that degree of force that a reasonable police officer in the same circumstances, viewed from the perspective of the defendant, would use making an arrest."..."The . . . test is an objective test--was the defendant's belief reasonable under all the circumstances? The second test requires you to consider what a reasonable police officer finding himself in the same situation as did the defendant would also conclude that defensive deadly physical force was necessary to defend himself against the use of offensive deadly physical force by his assailant."... the reasonableness is to be judged from the perspective of a reasonable police officer...."

13thjuror

12-14-13 | 09:09 am

More likely than not


SUSAN MARANDINO v. PROMETHEUS PHARMACY ET AL. (SC 18135) Rogers, C. J., and Norcott, Katz, Vertefeuille and McLachlan, Js.* Argued April 29, 2009—officially released January 26, 2010 Expert opinions must be based [on] reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. . . . To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend [on] the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. . . . Struckman v. Burns, 205 Conn. 542, 554–55, 534 A.2d 888 (1987).’’ (Internal quotation marks omitted.) DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra, 294 Conn. 142–43. ‘‘The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of his opinion.’’ State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987). ‘‘In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . . Some facts must be shown as the foundation for an expert’s opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence.’’ State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). ...the facts on which an expert relies for his medical opinion is relevant to determining the admissibility of the expert opinion, but once determined to be admissible, there is no rule establishing what precise facts must be included to support an expert opinion. See State v. Douglas, supra, 203 Conn. 452; see also State v. John, supra, 210 Conn. 677 Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 103, 971 A.2d 8 (2009) (‘‘[t]he credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact’’ See Aspiazu v. Orgera, 205 Conn. 623, 632, 535 A.2d 338 (1987) (‘‘An expert opinion cannot be based on conjecture or surmise but must be reasonably probable. . . . Any expert opinion that describes a condition as possible or merely fifty-fifty is based on pure speculation.’’

13thjuror

11-28-13 | 06:42 am

Know the Law


Requirements for POSTC Law Enforcement Instructor Certification are documentation of expertise or specialization in the respective field to be taught. Said expertise may include the completion of specialized and/or advanced training; acceptance as an "expert" by a court of law, association or society (or other recognizing body); and/or experience in the subject area. POSTC is charged with setting policy, training and licensing standards for all full-time and part-time municipal police officers throughout the State in regard to basic and continuing training. POSTC is also responsible for the certification of basic and in-service review training programs conducted by various municipalities, as well as administering the certification of police officers and police instructors statewide "I Certify the lesson plan and training material used in each of the instructional areas that I am certified to teach, has been reviewed and updated to reflect changes in applicable law, law enforcement best practices and advances in areas of specialization". 1. K-10 Conduct legal research in state and local laws, etc., to determine proper charges or practice 2. K-11 Read and comprehend Department Policy and procedures and apply same to law enforcement. 3. K-6 read Reports, legal papers, etc to maintain knowledge of law enforcement work. 4. K-7 read court and legal papers to determine meaning and proper law enforcement response. “[O]fficers have an obligation to understand the laws that they are entrusted with enforcing, at least to a level that is objectively reasonable.” “Any mistake of law that results in a search or seizure, therefore, must be objectively reasonable to avoid running afoul of the Fourth Amendment.” The purpose of police training is to allow the jury to evaluate the officer's conduct against that of a reasonable police officer. POSTC - 207 Laws of Arrest: a) Doctor of Jurisprudence, and admission to the Bar in Connecticut, or b) successful completion of a specific formal criminal justice or law enforcement course of study on Criminal Law, or c) other specific recent and frequent professional training (e.g., State’s Attorney’s Course, Legal and Constitutional Updates). Connecticut Criminal Law a) Doctor of Jurisprudence, and admission to the Bar in Connecticut, or b) successful completion of a specific formal criminal justice or law enforcement course of study on Criminal Law, or c) other specific, recent and frequent professional training (e.g., State’s Attorney’s Course; Legal and Constitutional Law Updates)., or d) a rank of Sergeant or above with completion of an approved first line supervisor school. 209 Use of Force a) Successful completion of specific law school training in the area of Criminal Law, or b) current certification as a P.O.S.T. Defensive Tactics instructor or Firearm instructor, successful completion of a specific formal criminal justice or law enforcement course of study on Criminal Law material, or c) a person who has held the rank of Sergeant or above and attended first line supervisor school POLICE AND THE LAW, AREA II 201 U.S. Constitution a) Successful completion of an appropriate one-semester criminal justice, law enforcement or other relevant course of study, and/or b) other specific training or experience with the subject matter deemed equivalent to (a).

13thjuror

11-10-13 | 06:51 am

Deadly Force Jury Charge


“The use of force highly likely to have deadly effects is unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or to others....It is not objectively reasonable for an officer to use deadly force to apprehend a suspect unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

13thjuror

11-10-13 | 06:50 am

State of Mind Training


"Allard's testimony regarding the training that the defendant received on the use of deadly force was relevant to the defense. It did not invade the province of the jury on the ultimate issue of fact. Rather, it would have permitted the defendant to establish his defense by assisting the jury in evaluating whether his beliefs did in fact comport with the standard of a reasonable peace officer. The defendant's state of mind in general, or the defendant's beliefs at the time of the incident are, indeed, the subject of the jury's inquiry." State v. Smith, No. AC 21991 (Conn.App. 10/22/2002)"

13thjuror

11-05-13 | 11:59 am

Some, all, or none


Jury Charge: "You are entitled to accept any testimony which you believe to be true and to reject either wholly, or in part, the testimony of any witness you believe has testified untruthfully or erroneously. Thus, you should decide what portion, all, some, or none of any particular witness’s testimony you believe based upon these principles. If you find that a witness said one thing on a prior occasion and then testified differently in court, you may consider that as bearing on the witness’s credibility. If you find that a witness has testified inaccurately, you should scrutinize the whole testimony of that witness. The significance you attach to it may vary more or less with a particular fact as to which inaccuracy existed, or with the surrounding circumstances. Simply because you find that a witness has not testified accurately with respect to one fact does not mean that witness is wrong on every other point. A witness may be honestly mistaken on one point yet accurate on others. If you find, however, that a witness intentionally testified falsely, you may disregard the witness’s entire testimony, but you are not required to do so. It is up to you to accept or reject all or any part of any witness’s testimony. If you find that a witness has been inaccurate in any respect, remember that in judging the rest of that witness’s testimony. Give to it that weight which your own mind leads you to think it ought to have, and what you would attach to it in the ordinary affairs of life where someone came to a matter, and you find that in some particular respect that individual was inaccurate."

13thjuror

10-31-13 | 01:26 pm

State of Mind


Adam JENNINGS, Plaintiff, Appellant, v. Kenneth JONES, Defendant, Appellee. No. 05-2522. United States Court of Appeals, First Circuit. 479 F.3d 110 (2007) Heard September 11, 2006. Decided March 7, 2007. "The district court also emphasized Isom's holding that, "[f]or the jurors to have been given an opportunity to exercise their common sense on the ultimate question of whether no objectively reasonable officer would have used pepper spray, there must have been some basis in the evidence on which to ground that determination." Id. Relying on these propositions from Isom, the district court found that there was an absence of any evidence that `no objectively reasonable officer' would have used the level of force used by Jones and, therefore, the jury unfairly was put in the untenable position of trying to decide that question without sufficient evidence of the applicable standard for measuring the lawfulness of Jones' conduct. ...As a result, the district court concluded that in this case, as in Isom, there was no basis in the evidence to support a jury finding of excessive force...proportionality of force under the circumstances...Jennings explicitly directed the jury to expert testimony in the record that could assist the jury in determining that no reasonable officer under the circumstances Jones confronted would have applied more pressure to Jennings' ankle...., "[n]o expert testified that, under the circumstances faced by [Jones], no reasonable officer would have" acted as Jones did. Isom, 360 F.3d at 12 ...some cases may be susceptible to a common sense determination by the jury.... expert testimony that gave the jury a useful framework for thinking about the excessive force issue...."

13thjuror

10-31-13 | 01:24 pm

State of Mind


United States v. Shedlock, No. 95-1434 (8th Cir. 07/19/1995)"...expert testimony of Gil Hansen, a Law Enforcement Academy instructor. Hansen testified that he trains police officers to maintain a "reactionary gap" between them and a suspect in an effort to safeguard the officers. If a suspect invades this gap, Hansen trains the officers to take all protective action, including the use of force, necessary to maintain the gap. The district court admitted Hansen's testimony to aid the jury regarding Palmer's state of mind and whether or not Shedlock acted forcibly....As a general rule, expert testimony is admissible if it is relevant, helpful to the jury, and will not confuse the jury. See Fed. R. Evid. 702. Expert testimony is helpful to a jury if it concerns matters beyond the knowledge of average individuals; however, it cannot supplant the jury's role in evaluating the evidence. United States v. French, 12 F.3d 114, 116 (8th Cir. 1993)....challenges the appropriateness of Hansen's "reactionary gap" testimony. This testimony helped the jury consider what might have gone through a reasonable officer's mind when an aggressive person confronts him or her. To sustain a conviction under 18 U.S.C. Section(s) 111, the jury must find that Shedlock's actions were forcibly committed. See United States v. Schrader, 10 F.3d 1345, 1348 (8th Cir. 1993) (defining force as used in 18 U.S.C. Section(s) 111 to mean "proof of actual physical contact, or . . . proof of such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death"). Because this evaluation of force necessarily requires an inquiry into a what a reasonable officer would do or think in a particular situation, expert testimony about a reasonable police officer's state of mind is proper....Because this evaluation of force necessarily requires an inquiry into a what a reasonable officer would do or think in a particular situation, expert testimony about a reasonable police officer's state of mind is proper...."

13thjuror

10-29-13 | 01:53 pm

A Reasonable Mind


Walczyk v. Rio, 496 F.3d 139 (2d Cir. 08/01/2007)Dissent..."we demand a consensus among all hypothetical reasonable officers that the challenged conduct was unconstitutional, rather than positing an objective standard of reasonableness to which defendant officers should be held, as the Supreme Court has repeatedly instructed us to do.... if 'officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context." Malley v. Briggs, 475 U.S. 335, 341 (1986))....The Supreme Court has specifically criticized the conflation of an objective reasonableness standard with a requirement of unanimous consensus...The Fourth Circuit had previously held that a state court's adjudication involved an "unreasonable application" of federal law only if "the state court has applied federal law 'in a manner that reasonable jurists would all agree is unreasonable.'" Williams, 529 U.S. at 409 (quoting Green v. French, 143 F.3d 865, 870 (4th Cir. 1998) (emphasis added)). Both the majority and plurality Supreme Court opinions rejected the Fourth Circuit's interpretation of the "unreasonable application" standard, explaining that whether an application of the law is objectively unreasonable is a different, less stringent standard than one that asks whether reasonable jurists would unanimously find an application of law unreasonable...at least one of the Nation's jurists... Our Court similarly has adopted an unjustifiably stringent standard in the qualified immunity context by prohibiting liability for constitutional violations where a court believes that one reasonably competent officer would find the conduct at issue lawful, even if the overwhelming majority would not....Our case law, in subtle but important ways, has altered this balance in favor of defendants by adding another analytic step to the qualified immunity analysis and equating objective reasonableness with unanimity among "officers of reasonable competence." ...“Only where reasonable minds disagree does it become an issue for the jury.” "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F. 2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991). “The objective reasonableness test is met–and the defendant is entitled to immunity–if officers of reasonable competence could disagree on the legality of the defendant’s actions.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995...Crowell v. Kirkpatrick, 400 F. App'x 592, 594 (2d Cir. 2010) (“even if the right at issue was clearly established in certain respects, ... an officer is still entitled to qualified immunity if ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context.”). The force used by an officer against a suspect who is attempting to resist arrest, threatening, or assaulting an officer “must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.” Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000)."

13thjuror

10-29-13 | 01:46 pm

State of Mind


State v. Smith, No. AC 21991 (Conn.App. 10/22/2002) "We note that the defendant, in his challenge to the court's finding of probable cause for the state to charge him with murder pursuant to General Statutes § 53a-54, also attempted to introduce, inter alia, the testimony of Allard on the subject of whether the defendant's use of deadly force was reasonable. In rejecting the proffered evidence, the court noted that some of that evidence "may well be relevant to the defense under General Statutes § 53a-22 that would be raised at trial." The court also noted that although the substantive law in cases cited by the defendant in discussing federal rulings under 42 U.S.C. § 1983 may apply to the defense under § 53a-22, that law "serves no purpose in the procedural context of this probable cause hearing to determine the objective reasonableness under the fourth amendment of the defendant's use of deadly force." Finally, the court concluded that "[t]he proffered evidence may show that the defendant was justified in using deadly force under . . . § 53a-22 (c), but consideration of that evidence for that purpose is for the trier of fact in this case." The evidence, the defendant argues, would have assisted the jury in analyzing the defendant's state of mind and his conduct during the forty seconds that elapsed between the time when he first encountered the victim and when he fired the shot that killed the victim. We agree. We conclude that the test for evaluating self-defense claims pursuant to § 53a-22 is a subjective-objective test. The jury is required, first, to determine whether the defendant honestly believed that the use of deadly force was necessary in the circumstances. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable police officer in the defendant's circumstances. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (evaluating reasonableness of police officer's belief that deadly force justified in context of fourth amendment excessive use of force claims, stating that "[t]he [objective] reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight"); Weyel v. Catania, 52 Conn. App. 292, 296, 728 A.2d 512 (all claims that law enforcement officers have used excessive force in the course of an arrest, whether deadly force or not, should be analyzed under the reasonableness standard of the fourth amendment), cert. denied, 248 Conn. 922, 733 A.2d 846 (1999). Although the defendant in his principal brief argues for the "reasonable police officer standard" in support of his jury instruction claim, we agree with him that if he were to be sued for damages under 42 U.S.C. § 1983, he would be entitled to have his civil jury instructed under the Graham standard. Thus, he argues, it would be anomalous to extend less protection to him at his criminal trial, where his liberty is at stake ... ....the 'objective reasonableness' standard may be comprehensible to a lay juror. On the other hand, any 'objective' test implies the existence of a standard of conduct, and, where the standard is not defined by the generic--a reasonable person--but rather by the specific--a reasonable officer--it is more likely that [federal rule of evidence] 702's line between common and specialized knowledge has been crossed." Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993) (analyzing plaintiff's claim that court improperly excluded expert testimony concerning defendant's use of non-deadly force in effecting arrest). In Kopf, the United States Court of Appeals for the Fourth Circuit stated that "[w]here force is reduced to its most primitive form--the bare hands--expert testimony might not be helpful. Add handcuffs, a gun, a slapjack, [M]ace, or some other tool, and the jury may start to ask itself: what is [M]ace? what is an officer's training on using a gun? how much damage can a slapjack do? Answering these questions may often be assisted by expert testimony." Id., 379. We find that reasoning persuasive in the case at hand. The state argues that the testimony properly was excluded, as it went to the defendant's state of mind, thus infringing on the jury's ability to resolve the ultimate question of the defendant's guilt or innocence. That argument misses the point. The defendant's state of mind in general, or the defendant's beliefs at the time of the incident are, indeed, the subject of the jury's inquiry. The jury was entitled to hear the relevant evidence offered to the extent that it would have assisted the jury in determining the issues. See State v. Billie, supra, 250 Conn. 180. The issues concerned the defendant's state of mind, e.g., whether his belief, was (1) honest and (2) reasonable according to the test previously discussed. Allard's testimony regarding the training that the defendant received on the use of deadly force was relevant to the defense. It did not invade the province of the jury on the ultimate issue of fact. Rather, it would have permitted the defendant to establish his defense by assisting the jury in evaluating whether his beliefs did in fact comport with the standard of a reasonable peace officer. The proposed charge stated in relevant part that "[t]he amount and degree of force that the officer uses must be reasonable. It must be that degree of force that a reasonable police officer in the same circumstances, viewed from the perspective of the defendant, would use making an arrest." As discussed in part II, the test for determining whether a police officer's use of deadly force was reasonable is to be judged according to the subjective - objective formulation used in evaluating self-defense claims under § 53a-19. With respect to the objective part of the test, however, the reasonableness is to be judged from the perspective of a reasonable police officer. Here, the court refused to so instruct. On remand, and upon the proper factual showing at the trial warranting an instruction on self-defense, the court must instruct on self-defense under § 53a-22 consistent with the test elucidated in this opinion."

13thjuror

10-29-13 | 01:07 am

Creation


In the beginning there was 'self'. Then came a moment in time when the 'other' became self-aware. This 'other' then materialized a 'distinction' within the self. The 'Self' and the 'other' battled for re-assimilation. The 'Self' was asked to diminish itself for the 'other'. Within this IAM maelstrom, 'Happiness' sought 'balance' by sharing a complete 'self' with a complete 'other'. 'Self' and 'Other' demanded completeness for selfish happiness. This battle can only be won when 'Happiness' - the primary law of nature - balances 'consistency' ( i.e., the self) with 'variety' ( i.e. the other). There can be only 'one'. Happy Creation! Be-Heart Be-Thought Be-Spoken Be-Gotten™

IAM

10-12-13 | 07:27 am

As Likely Innocent


Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible but it is at least more than bare suspicion. To be clear, probable cause means less than that evidence which would justify conviction. What an arrest means is that you are probably more or less innocent because evidence is less than that required for conviction. In other words an arrest means that you as likely innocent as you are guilty.

13thjuror

08-26-13 | 06:04 am

Trouble Maker


"...the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing." Plakas v. Drinski 19 F3d 1143 (7th Cir. 1994)

13thjuror

08-26-13 | 05:59 am

Reasonable Inference


"Because the only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture." At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.’’

13thjuror

08-26-13 | 03:53 am

Articulable Suspicion


Suspicious activity, by its very nature, is equivocal and ambiguous. . . . The possibility of an innocent explanation does not deprive the officers of the capacity to entertain a reasonable suspicion of criminal conduct.’’ State v. Days, 89 Conn. App. 789, 802, 875 A.2d 59, cert. denied, 275 Conn. 909, 882 A.2d 677 (2005). ‘‘In a close case . . . the balance ought to be struck on the side of the freedom of the citizen from governmental intrusion. To conclude otherwise would be to elevate society’s interest in apprehending offenders above the right of citizens to be free from unreasonable stops.’’ State v. Oquendo, 223 Conn. 635, 657, 613 A.2d 1300 (1992).

13thjuror

08-26-13 | 03:49 am

Articulable Suspicion


‘‘The inquiry into reasonable and articulable suspicion does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. . . . [T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’’ Tarro v. Commissioner of Motor Vehicles, 279 Conn. 280, 292 n.17, 901 A.2d 1186 (2006). ‘‘The fact that an innocuous explanation for the conduct observed may have existed is of no consequence to our analysis when . . . there was a reasonable basis for the police to suspect criminal activity. Suspicious activity, by its very nature, is equivocal and ambiguous. . . . The possibility of an innocent explanation does not deprive the officers of the capacity to entertain a reasonable suspicion of criminal conduct.’’ State v. Days, 89 Conn. App. 789, 802, 875 A.2d 59, cert. denied, 275 Conn. 909, 882 A.2d 677 (2005).

13thjuror

07-17-13 | 10:20 am

My Name is Justice


My name is 'justice'. I am a seeker of truth. I believe some, all or none of what others 'believe'. The 'innocent' and the 'guilty' fear me. I use fear to parse unbridled constitutional freedoms in the name of 'safety'. Fairness, not certainty, is the standard I use to exact justice. I convict the actually innocent and acquit the factually guilty. My name is Justice. Has anyone seen 'truth'? I balance substantial evidence with its respective innocent explanations to reach to a sufficient finding of inculpatory wrong-doing. I assess credibility of the witnesses/suspects on the basis of my firsthand observation of their conduct, demeanor and attitude to determine exculpatory 'truth' evidence. My sole purpose is to identify the 'wrong' as well as to correct 'a' wrong. I only accept persuasive adversarial arguments using evolving Constitutional standards to mark an ever shifting hazy 'wrong-doing' boarder-line. What I know to be clearly convincing is that it is sufficiently and highly probably true that it is more likely true than not, that it is highly possible, that what I believe may be closer to the truth than that which others believe. I will use every legal tool available to me to root out injustice as I seek fair and equal, yet imperfect justice.

13thjuror

01-01-13 | 04:14 am

Duty


"[I]t is unreasonable to impose [a] duty where the realities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the . . . conduct [of another]." Pulka, 40 N.Y.2d at 785, 390 N.Y.S.2d at 396, 358 N.E.2d at 1022

13thjuror

12-08-12 | 02:28 am

Why Experts are paid


Why do I get paid? I am in it for the 'constitution' and my 'time' is compensable. I do not get paid for my 'opinions'. I get paid for the work product to provide my opinions which is not unlike the 'attorneys' and 'judges' who are working their respective 'constitutional' work product for which they 'believe' they should be compensated for. Experts do not get paid because they are 'hired guns' who provide more 'bang' for the buck$$$, but rather to provide the 'ammunition'(i.e., training, experience, and education) to hit a 'constitutional' target. All this to assist the 'trier of fact' to use their 'common sense' assisted by an 'objective officer's reasonableness standard of conduct'.

13thjuror

10-10-12 | 07:33 am

Reaching for Something


United States Court of Appeals For the Eighth Circuit No. 11-3618 Cassidy Jared Loch v. City of Litchfield; Litchfield Police Officer Travis Rueckert Appeal from United States District Court for the District of Minnesota - Minneapolis August 27, 2012 ...The use of deadly force is reasonable where an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11 (1985). An act taken based on a mistaken perception or belief, if objectively reasonable, does not violate the Fourth Amendment. Krueger v. Fuhr, 991 F.2d 435, 439 (8th Cir. 1993). Even if a suspect is ultimately “found to be unarmed, a police officer can still employ deadly force if objectively reasonable.” Billingsley v. City of Omaha, 277 F.3d 990, 995 (8th Cir. 2002).

13thjuror

10-10-12 | 02:36 am

Concealed Hands justified shooting


Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991), it was held that a police officer was justified in using deadly force to defend himself and other officers around him when a robbery suspect who was sitting in a car repeatedly reached down below the officer’s line of sight. The officer had given the suspect repeated orders to raise his hands. Id. at 496. The suspect and the other occupants of the vehicle understood the officer’s commands and initially complied with them. Id. at 500. Nevertheless, the suspect continued to raise and lower his hands, and consequently the officer shot and killed him from a ten-foot distance.... The court in Reese concluded that it was reasonable for the defendant police officer to believe that the suspect had retrieved a gun and was about to shoot, even though it was later determined that he was unarmed...

13thjuror

07-15-12 | 05:30 am

Class of One


The individual is the new 'minority'. The purpose of Government is to safeguard individualism as a 'class of one'. There is but one class in America and that is the 'Class of One'.

13thjuror

07-13-12 | 01:47 am

Free to Walk


Romero v. Story, 2012 U.S. App. LEXIS 3680 (10th Cir. February 23, 2012)... A citizen has the constitutional right to walk away from a law enforcement officer who lacks probable cause or reasonable suspicion to detain or seize him or her. See Kentucky v. King, 131 S.Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011). If the officers want to force a suspect to speak, they must have reasonable suspicion or probable cause.

13thjuror

07-13-12 | 01:45 am

Probable Cause Immunity


“Even when there is no probable cause to arrest, a police officer is nonetheless immune from a claim of false arrest ‘if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.’” Posr v. Court Officer Shield No. 207, 180 F.3d 409, 416 (2d Cir. 1999) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)).

13thjuror

07-02-12 | 02:22 pm

Affordable Care Act Tax Standard


Chief Justice Roberts used a 'fairly possible standard' to create a constitutional taxing authority. Although Congress used 'penalty' in place of 'tax', it did not mean that they actually meant to exclude Tax as the reason for the Act, no matter how 'taxing' that may sound. Of course this is mere speculation because a 'fairly possible' standard is merely a 50/50 pure speculation standard. It is just as likely that they meant 'penalty' instead of tax.

13thjuror

05-10-12 | 04:41 am

Duty to avoid inherent risks


Priestley v. Fowler.( 3 M. & W. 1, 6 (Ex. 1837); Chicago, M. & St. P. Ry. Co. v. Ross, 112 U.S. 377, 386. This is the idea that the employer is not liable for injuries caused by one employee to another in the course of their employment.) In Priestley v. Fowler, the Court said, "The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself: and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master."

13thjuror

05-09-12 | 06:38 am

One reasonably competent officer


Walczyk v. Rio, 496 F.3d 139 (2d Cir. 08/01/2007... whether an application of the law is objectively unreasonable is a different, less stringent standard than one that asks whether reasonable jurists would unanimously find an application of law unreasonable...Our Court ... has adopted an unjustifiably stringent standard in the qualified immunity context by prohibiting liability for constitutional violations where a court believes that one reasonably competent officer would find the conduct at issue lawful, even if the overwhelming majority would not.... equating objective reasonableness with unanimity among "officers of reasonable competence." ...“Only where reasonable minds disagree does it become an issue for the jury.”..."

13thjuror

05-09-12 | 02:50 am

Ministerial Act


Bonington v. Westport, supra, 297 Conn. 309 (‘‘even when the duty to respond to a violation of law is ministerial because that specific response is mandated, the predicate act—determining whether a violation of law exists—generally is deemed to be a discretionary act’’

13thjuror

05-09-12 | 02:45 am

Accidental Shooting


"...the discharge of a weapon by a police officer in the course of duty, which unintentionally, severely injured a fellow officer, was not wilful or malicious conduct that fell within the exception to the workers’ compensation exclusive remedy provision as a matter of law. Melanson v. West Hartford, 61 Conn. App. 683, 691–93, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). Additionally, in Ramos v. Branford, 63 Conn. App. 671, 684, 778 A.2d 972 (2001), this court held that even a reckless failure to abide by regulations and safety standards was not the equivalent of a conscious and deliberate attempt to injure.

13thjuror

04-29-12 | 03:10 am

Any Act Undefined


STATE OF CONNECTICUT v. ROBERT H. (SC 16873) March 8, 2005 ...Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers, or juries . . . .particularly because specific intent is not an element of the offense . . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.’’ ... fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . .

13thjuror

04-17-12 | 05:09 am

Shall as a Mandatory Duty to Act


"The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. . . . If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory . . . . Definitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature. . . . As we recently noted, the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb.’’ Wiseman v. Armstrong, 295 Conn. 94, 100–101, 989 A.2d 1027 (2010); see also Butts v. Bysiewicz, 298 Conn. 665, 676, 5 A.3d 932 (2010)." COMMENT: Nothing 'necessary' is absolutely essential. Essentially, doing the 'right' thing is suitable in the proper context although not compulsory.

13thjuror

04-07-12 | 09:32 am

Inferential Fallacy


Inferential Fallacy: • If every arrest must be presumed to present a risk of danger to the arresting officer • And you are being arrested. • Then You are a dangerous person.

13thjuror

03-31-12 | 04:19 am

No Right to Investigate or Arrest


Gregory Johnson, Prisoner v. Riccardo Ruiz, et al. , No. 3:11-cv-542 (D. Conn. 01/09/2012) "...no constitutionally protected right to a proper investigation. See Lewis v. Gallivan, 315 F. Supp.2d 313, 316-17 (W.D.N.Y. 2004) ("There is . . . no constitutional right to an investigation by government officials.") ; Santossio v. City of Bridgeport, No. 3:01CV1460(RNC), 2004 WL 2381559, at *4 (D. Conn. Sept. 28, 2004) ("the United States Constitution does not grant plaintiffs a right to an adequate investigation or adequate after-the-fact punishment") . Furthermore, a victim of allegedly criminal conduct is not entitled to a criminal investigation or the prosecution of the alleged perpetrator of the crime. Leeke v. Timmerman, 454 U.S. 83, 87(1981) (per curiam) (inmates alleging beating by prison guards lack standing to challenge prison officials' request that magistrate not issue arrest warrants); Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) ("in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another"); McCrary v. County of Nassau, 493 F. Supp. 2d 581, 588 (E.D.N.Y. 2007) ("A private citizen does not have a constitutional right to compel government officials to arrest or prosecute another person."); Osuch v. Gregory, 303 F. Supp. 2d 189, 194 (D. Conn. 2004) ("An alleged victim of a crime does not have a right to have the alleged perpetrator investigated or criminally prosecuted.")....""

13thjuror

03-28-12 | 07:53 am

Fundamental Constitutional Change


"CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner. SOLICITOR GENERAL VERRILLI: I agree, except, Mr. Chief Justice, that what the Court has said as I read the Court's cases is that the way in which you ensure that the Federal Government stays in its sphere and the sphere reserved for the States is protected is by policing the boundary: Is the national government regulating economic activity with a substantial effect on interstate commerce? JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."

13thjuror

03-27-12 | 12:47 pm

Failure to Train


The court notes that compliance with mandatory state training requirements is not sufficient per se for a municipality to satisfy its training obligations. See Hogan v. City of Easton, No. Civ. A. 04-0759, 2006 WL 3702637, at *13 (E.D. Pa. Dec. 12, 2006).

13thjuror

03-21-12 | 11:47 am

Zimmerman Statutory Defense


Florida Statute 76.013 JUSTIFIABLE USE OF FORCE(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

13thjuror

03-16-12 | 04:23 am

Connecticut Deadly Force Justification Standard


In evaluating an officer’s reasonable belief under section 53a-22(c)(1), the test is both subjective and objective. First, the officer must believe that the use of deadly force is necessary to defend himself or another from the imminent use of deadly physical force. Second, that belief must be objectively reasonable. See State v. Smith 73 Conn. App. 173, cert. den. 262 Conn. 923 (2002). The test is not whether it was in fact necessary for the officer to use deadly physical force in order to defend against the imminent use of deadly physical force. The test is whether the officer believed it was necessary to use deadly physical force and whether such belief was objectively reasonable, based on the facts and circumstances known to the police officer at the time the decision to use deadly force was made. See State v. Silveira 198 Conn. 454 (1986); State v. Adams 52 Conn. App. 643 (1999). The United States Supreme Court has explained this test in a civil rights case: "The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight...The calculus of reasonableness must embody allowance of the fact that police officers are often forced to make split-second decisions—in circumstances that are tense, uncertain, and rapidly evolving---about the amount of force that is necessary in a particular situation." Graham v. Connor 490 U.S. 386 (1989) Applicable Law Connecticut General Statutes Section 53a-22 authorizes the use of deadly physical force by a police officer under certain circumstances. Section 53a-22(c) provides, in pertinent part: (c) A peace officer or authorized official of the department of correction is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; The United States Supreme Court has sanctioned the use of fatal force in such self defense situation and found such use of force to be reasonable. See Tennessee v. Garner, 471 U.S. 1 (1985). The United States Supreme Court has indicated: The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Graham v. Connor, 490 U.S. 386, 396 (1989). Also, in Graham, the Court stated that: The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation. Supra, p. 396-397. Also; (T)he "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Supra, p. 397. Thus, the subjective intention of an officer whether "good" or "evil" is not the measure in analyzing the reasonableness of an officer’s conduct. Also, an officer’s actions may be found reasonable even where "officers of reasonable competence would disagree" on the issue. Malley v. Briggs, 475 U.S. 335, 341 (1986). As to the rules prescribed in Graham v. Connor: Numerous courts have interpreted Graham as requiring substantial deference to the on-scene judgments made by police officers. Russo v. U.S., 37 F.Supp. 2d 450, 455 (E.D. Va. 1999). In assessing the propriety of an officer’s use of fatal force: (M)ost courts limit the inquiry to the information known by the officer at the time of the shooting . . . and . . . to limit relevant evidence to police officer’s actions "immediately prior to the shooting." Russo v. U.S. at p.455. The reasonableness of the inquiry depends only upon the officer’s knowledge of circumstances immediately at the moment that he made the split-second decision to employ deadly force. Maria Salim, Administratrix v. William Proulx, 93 F.3d 86, 92 (2d Cir. 1996). (East Hartford Police Department’s police officer’s fatal shooting of individual). Also, it has been held that an inquiry into an officer’s actions is limited to whether the officer acted reasonably and not to whether the officer had a less intrusive or invasive alternative available. Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heed of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment. Scott v. Henrich, 34 F.3d. 1498 (9th Cir. 1994). In the best of all worlds, because a human life is so precious, an officer ideally, when confronted with the threat of deadly force, should take the time to dispassionately analyze the parameters of the threat and measure his or her response to that a minimum amount of force is utilized and a minimum amount of injury is inflicted. However, police officers are trained that in reality, the ideal situation rarely, if ever, exists. (S)tatistics reveal that about 90 percent of shooting incidents take place within a three-second time frame. Within this time frame, a police officer takes appropriate steps to stop the threat and rarely, if ever, engages in a decision making process about his intent or the degree of injury that will be inflicted. The realistic motivation is primarily reactive and designed to stop the threat or the aggressive behavior. Attempts to shoot to wound or to injure are unrealistic and because of high-miss rates and poor stopping effectiveness can prove dangerous for police officers and others. International Association of Chiefs of Police National Law Enforcement Policy Center., "Use of Force", Concepts and Issue Paper, February 1, 1989. P. 4. Accordingly, our law only requires that a police officer must only react reasonably under the quickly evolving circumstances. Connecticut General Statutes Section 53a-22(c) provides: “A Peace Officer. . . is justified in using deadly physical force upon another person for the purposes specified in Subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) Effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force.” Connecticut General Statutes Section 53a-22(b) provides: “Except as provided by subsection (a) of this Section, a Peace Officer. . . is justified in using physical force upon another person when and to the extent that he reasonable believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he reasonably believes to have committed an offense, unless he knows that the arrest or custody is unauthorized; or (2) Defend himself or a third person from the use or imminent use of physical force while attempting to effect an arrest or while preventing or attempting to prevent an escape.” Consequently, pursuant to Connecticut General Statutes Section 53a-22(c)(1), a police officer may use deadly force when he reasonably believes the use of such force is necessary to defend himself from the use or imminent use of deadly physical force. The test is both subjective and objective. First, the officer must believe that the use of deadly force is necessary to defend himself or another from the imminent use of deadly physical force. Second, that belief must be objectively reasonable. See State v. Prioleau, 235 Conn. 274(1995). The test is not whether it was in fact necessary for the officer to use deadly physical force in order to defend against the imminent use of deadly physical force. The test is whether the officer believed such to be the case, and whether such belief was objectively reasonable, based on the facts and circumstances known to the officer at the time the decision to use deadly force was made. See State v. Silveira, 198 Conn 454 (1986); State v. Adams, 52 Conn. App. 643 (1999). The United States Supreme Court explained this test in detail in a civil rights action. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than the 20/20 vision of hindsight. . . The calculus of reasonableness must embody allowance to the fact that police officers are often forced to make split-second judgments---in circumstances that are tense, uncertain, and rapidly evolving---about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 109 S. CT 1865, 104 L. Ed. 2d 443 (1989). "

13thjuror

03-14-12 | 05:59 am

Knowing is 100%


"'As a matter of language, the word "knowing" [and therefore knowledge] literally imports something pretty close to 100 [percent] certainty; "believing," something less than certainty; and "suspecting," something less certain than "believing."' 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 8.10, p. 427.

13thjuror

03-06-12 | 02:36 am

Warning Shot


In Connecticut a 'private person' is prohibited from firing a 'warning shot' Ct Gen Statutes Sec. 53a-22. Use of physical force in making arrest or preventing escape (f) A private person acting on his own account is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of an arrested person whom he reasonably believes to have committed an offense and who in fact has committed such offense; but he is not justified in using deadly physical force in such circumstances, except in defense of person as prescribed in section 53a-19. Subsec. (f): Defendant's firing of warning shot at fleeing assailants constituted use of deadly force proscribed by statute. To permit persons to fire warning shots would frustrate purpose of statute to limit use of guns to emergency situations to protect persons from death or great bodily harm. 35 CS 570, 575, 576. Cited. 39 CS 392, 395.

13thjuror

03-04-12 | 02:58 am

Clear & Convincing


"Clear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.’’

13thjuror

03-02-12 | 01:50 am

Rational Inference Standard


To be reasonably probable, a conclusion must be more likely than not. State v. Nunes, 800 A.2d 1160, 1175-76 (Conn. 2002). In other words, the opinion must be “probable” rather than merely “possible”. State v. Weinberg, 575 A.2d 1003 (Conn.), cert. denied, 498 U.S. 967 (1990).... expert testimony regarding causation based upon possibility or speculation is insufficient.... testimony that a certain thing is possible is no evidence at all...opinion as to what is possible is no more valid than the jury’s own speculations as to what is or is not possible.”"More likely than not" is a "preponderance of evidence" guilt standard where 51% of the facts and circumstances are believed to be 'true'."...intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [on] the evidence.’’ State v. Aloi, 280 Conn. 824, 842–43, 911 A.2d 1086 (2007). Comment: Certainty in 'belief' does not directly equate into 'truth' in accuracy. Truth is a 'belief' which is not 'truth' in fact.

13thjuror

03-02-12 | 01:39 am

Expert opinions


It is well settled that ‘‘[t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.’’ Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976); Schomer v. Shilepsky, 169 Conn. 186, 191, 363 A.2d 128 (1975). ‘‘Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue. Siladi v. McNamara, 164 Conn. 510, 513–14, 325 A.2d 277 [1973].’’ Going v. Pagani, supra, 35; see also State v. Douglas, supra, 203 Conn. 453 (‘‘in order to be admissible, the proferred expert’s knowledge must be directly applicable to the matter specifically in issue’’).

13thjuror

03-02-12 | 01:35 am

Expert Credentials


"...it is not essential that an expert witness possess any particular credential, such as a license, in order to be qualified to testify, so long as his education or experience indicate that he has knowledge on a relevant subject significantly greater than that of persons lacking such education or experience.’’ Conway v. American Excavating, Inc., 41 Conn. App. 437, 448–49, 676 A.2d 881 (1996).

13thjuror

01-23-12 | 09:55 am

Duty to Self-Protect


"...when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs e.g., food, clothing, shelter, medical care, and reasonable safety - - it transgresses the substantive limits on state action set by . . . the Due Process Clause.” "...when officers in some way had assisted in creating or increasing the danger to the victim would indeed implicate those rights.” Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993).

13thjuror

01-21-12 | 08:32 am

Reasonable Officer


"Excessive force - that amount of force used would not be considered reasonable by a reasonably competent police officer in the circumstances presented at the exact time that the police officer used such force..objective standard: would a reasonably competent police officer consider the use of such amount of force under the circumstances at the time the force was used? ..judged from the perspective of a reasonable officer on the scene..."

13thjuror

01-21-12 | 08:16 am

Expert Qualifications


...a Police Expert witness’ qualification as an expert is founded on the expert’s education, training, and experience, all of which consists of the absorption and evaluation of information and experience of others. . .Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.’

13thjuror

01-21-12 | 04:34 am

Inferential fallacy


It is an inferential fallacy of ancient standing to conclude that, because members of group A (those who operate motor vehicles) are likely to be members of group B (those who assault/interfere with police officers), then group B is entirely, or even largely composed of, members of group A. Although offenses relating to assault on a Peace Officer and interfering with a Peace Officer occur during traffic stops this event itself does not result in a per se officer safety risk. While the safety of the public and the officer are in mind, an individual's Fourth Amendment right cannot be vitiated based on fallacious inferences drawn from facts not supported by the context of the motor vehicle stop itself. The above was modified from the case excerpt: People of the V.I. v .John. S. Ct. Crim. No. 2008-91 Opinion of the Court Page 10 of 17 http://www.ca8.uscourts.gov/opndir/10/05/083243P.pdf

13thjuror

12-21-11 | 07:17 am

13thJuror is Training


"Reliance only on academy training in this area-which is characterized by evolving standards and practices among police agencies-is a significant departure from generally accepted police practices. Such reliance gives officers recourse only to static and dated training that does not address changes in law or the many different circumstances that an officer may encounter beyond those contemplated or capable of being addressed in an academy-level course." "Officers 1) must be adequately trained on the constitutional enforcement of the law; 2) must be guided by detailed policies and codes of conduct; and 3) must be subject to a system of accountability, which includes meaningful recordkeeping, supervision, internal investigations, and oversight." Thomas E. Perez Assistant Attorney General DOJ Findings Letter December 19, 2011 East Haven Police Department."

13thjuror

12-01-11 | 03:26 am

Arguable Probable Cause


"'Arguable' probable cause" must "not be misunderstood to mean 'almost' probable cause." Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). If officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close does not immunize the officer…. Jenkins v. City of New York, 478 F.3d at 87; see also Cerrone, 246 F.3d at 202-03 (arguable probable cause focuses on the objectively reasonable belief of "a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question".

13thjuror

09-27-11 | 05:20 am

Death Penalty


..."fear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel." Although there are cases in which a near instantaneous death by gunfire could satisfy the Connecticut § 53a-46a (h) (4) factor, typically such cases have involved extreme fear, emotional strain and terror during the events leading up to the murder. Henyard v. State, 689 So. 2d 239, 254 (Fla. 1996), cert. denied, 522 U.S. 846, 118 S. Ct. 130, 139 L. Ed. 2d 80 (1997) (defendant's abduction of mother and her three and seven year old daughters, rape and shooting of mother, followed by execution of girls, sufficiently terrifying to children to constitute cruel, heinous and atrocious aggravating factor). State v. Johnson, 253 Conn. 1, 253 Conn. 1, 751 A.2d 298, 751 A.2d 298 (Conn. 05/02/2000)Focusing on the meaning of "especially cruel," we concluded that an acceptable core construction of this term "must include the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing." "[a] defendant cannot intentionally engage in conduct that inflicts extreme psychological trauma and then claim that his victims' mental distress was unintended or unforeseeable."(1) the defendant intended to, and in fact did, inflict extreme physical or psychological pain, suffering or torture on the victim; or (2) the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim." *fn59 "Evidence of the defendant's callousness or indifference to his victims' suffering would substantiate such a finding, but it would not suffice without some showing of the infliction of extreme pain, suffering or torture on the victims." Please note the similarities of this case with that of the Pettit Home Invasion Killings.

13thjuror

09-14-11 | 06:19 am

Self-Defense


Each American citizen has the right to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures. Each citizen has the right of protection from bodily harm and the right to life and liberty. The government (Federal, State or Local) can't enforce a regulation abridging these rights. If a free citizen is stripped of the means of self-protection and foreclosed from use of their immediate access to an imminent self-defense response, the government and its officials have in effect let the state of nature and happenstance take its course. The government must ensure that its' regulations provide for the protection of the public peace and safety. If the government abandons self-defense then it exercises a deliberate indifference where officials know of and in effect disregarded an excessive risk to health & safety of its population. We can't await a personal "tragic result" before constitutional liability is imposed.

13thjuror

09-14-11 | 05:05 am

Hostage Shooting negligence


A police officer's deliberate decision to shoot at a car containing a robber and a hostage for the purpose of stopping the robber's flight does not result in the sort of willful detention of the hostage that the Fourth Amendment was designed to govern. Medeiros v. O'Connell, 150 F.3d 164 (2d Cir. 07/15/1998)...where the hostage is hit by a bullet intended for the hostage-taker, the mishap is the "unintended consequence[] of government action," and the governing principle is that such consequences cannot "form the basis for a fourth amendment violation."

13thjuror

09-11-11 | 05:16 am

Reasonable?


A reasonable person is a member of all reasonable persons. A reasonable officer is a member of all reasonable persons. A reasonable officer is distinct from a reasonable person. Any, all, and every reasonable officer will differ as to what is reasonable. The factual context changes the assessment of reasonableness. Reasonable is determined from the perspective of a reasonable officer on the scene. Reasonableness is based upon whether a reasonable officer could have believed that the use of force alleged was objectively reasonable. 'A' reasonable officer is 'all' and 'every' officer who not unreasonable.

13thjuror

09-06-11 | 01:45 pm

Inferential Fallacy


Inferential Fallacy: Given that Group A (Contains 'any' officer who is Reasonable)and Given that Group B (Contains 'any' officer who is Unreasonable) Then Group B is largely composed of every, all, and any member of group A. Because every reasonable officer is a member of group A, and because only members of group A can become members of group B, then any, all and every member in Group A is reasonable.

13thjuror

09-06-11 | 01:20 pm

Knowing Act


An inadvertent act performed under a mistaken belief is not a knowing act.""no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Lanier, 520 U.S. 259, 265 (1997)

13thjuror

09-06-11 | 04:09 am

Evil Intent


Ricketts v. City of Hartford, 74 F.3d 1397 (2d Cir. 01/17/1996)…as explained in a footnote in Graham, "in assessing the credibility of an officer's account of the circumstances that prompted the use of force, a fact finder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen." 490 U.S. at 399 n.12. Second, punitive damages are generally available in an action pursuant to 42 U.S.C. 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983); Jeffries v. Harleston, 21 F.3d 1238, 1249 (2d Cir.), Punitive damages are also available under Connecticut law when "wanton or willful malicious misconduct" is proven. Markey v. Santangelo, 485 A.2d 1305, 1307 (Conn. 1985); Bates v. McKeon, 650 F. Supp. 476, 481-82 (D.Conn. 1986)…. the jury may "consider . . . evidence" of an officer's ill will as it relates to his credibility. 499 U.S. at 399 n.12.

13thjuror

07-13-11 | 02:03 pm

Wilful Disregard


‘‘To find that any act or omission is misconduct, the [board] must find that the individual committed an act or made an omission which was contrary to the employer’s interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee.’’ Regs., Conn. State Agencies § 31-236-26a (a). ‘‘To determine that misconduct is deliberate, the [board] must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission.’’ Regs., Conn. State Agencies § 31-236-26a (b). ‘‘[t]o find that deliberate misconduct is in wilful disregard of the employer’s interest, the [board] must find that: (1) the individual knew or should have known that such act or omission was contrary to the employer’s expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer’s expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer’s expectation or interest.’’ Regs., Conn. State Agencies § 31-236-26a(c).

13thjuror

07-11-11 | 05:50 am

Intent to Kill


‘‘To act intentionally, the defendant must have had the conscious objective to cause the result... state of mind is rarely available... intent is often inferred from conduct... ‘‘An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’’ State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981)....one who ‘‘uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.’’ State v. Tomasko, supra, 238 Conn. 259.

13thjuror

07-09-11 | 08:07 am

Guilt beyond a Reasonable Doubt


‘‘The meaning of reasonable doubt can be arrived at by emphasizing the word ‘reasonable.’ It is not a surmise, a guess or mere conjecture. It is not a doubt suggested by counsel which is not warranted by the evidence. It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other persons who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence. ‘‘Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.’’

13thjuror

07-09-11 | 07:58 am

Clear & Convincing Standard


...the clear and convincing standard is satisfied only ‘‘if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.’’ Miller v. Commissioner of Correction, supra, 242 Conn. 794....Clear and convincing standard of proof... ‘‘The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . ‘‘Although we have characterized this standard of proof as a middle tier standard . . . and as an intermediate standard . . . between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . . We have stated that the clear and convincing standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.’’ In re Giovanni C., 120 Conn. App. 277, 279–80, 991 A.2d 638 (2010)."

13thjuror

07-09-11 | 07:16 am

Objective Reasonableness


The objective reasonableness test will not be met "if, on an objective basis, it is obvious that no reasonably competent officer would have concluded," Malley v. Briggs, 475 U.S. 335, 341 (1986), in that moment that his use of deadly force was necessary.". Graham v. Connor, 490 U.S. 386,395, 109 S. Ct. 1865 (1989)The ‘reasonableness’ of a particular seizure depends not only on when it is made, but also on how it is carried out.”

13thjuror

07-05-11 | 05:21 am

Self-responsibility


In DeShaney v. Winnebago County Dept. of Social Svcs., 489 U.S. 189, 195 (1989), the Supreme Court held that “nothing in the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” The Clause is “not [] a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” In other words, the government does not have a duty to protect all persons from all harm.

13thjuror

07-02-11 | 12:01 pm

Reasonableness


An objective standard of reasonableness does not require unanimity consensus of all the hypothetical reasonable officers in this nation. One reasonably competent officer could find the conduct at issue lawful, even if the overwhelming majority would not, because reasonable minds can and do disagree as to the reasonableness of lawful police conduct.

13thjuror

06-28-11 | 03:03 am

Comon Sense


‘‘[i]n considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.’’ State v. Fauntleroy, 101 Conn. App. 144, 153, 921 A.2d 622 (2007).

13thjuror

06-28-11 | 02:58 am

Excessive Force Jury Instructions


Force is excessive, and use of such force constitutes a violation of a person’s rights under the fourth amendment, if the amount of force used would not be considered reasonable by a reasonably competent police officer in the circumstances presented at the exact time that the police officer used such force. The test is not whether the defendant thought (his/her) use of force was reasonable, but rather it is an objective standard: would a reasonably competent police officer consider the use of such amount of force under the circumstances at the time the force was used?

13thjuror

06-20-11 | 05:04 am

Reasonable Officer Standard


To determine whether the force used by the officer was excessive, the court must determine whether the amount of force used was that which a reasonable police officer would have used in similar circumstances. Graham, 490 U.S. at 396. The reasonableness of a particular use of force must be judged from the perspective of a reasonable police officer on the scene in light of all the objective facts and circumstances that existed at the time of the incident. Betancourt v. Slavin, 676 F. Supp. 2d 71, 77 (2009).

13thjuror

06-19-11 | 07:00 am

Thought Matters


Thought is sentient matter - think well! Purpose is the chisel for change. The first bite of the apple is self-awareness. The second bite of the apple is immortality. I am waiting for the second bite of the apple!

13thjuror

06-14-11 | 12:51 pm

Vote


"A legislative vote is not speech because the vote may express, not the legislator’s sincere personal view, but simply the view that is favored by the legislator’s constituents.... The legislator casts his vote “as trustee for his constituents, not as a prerogative of personal power.” "The legislative power of the vote is not personal to the legislator but belongs to the people; the legislator has no personal right to it" SUPREME COURT OF THE UNITED STATES No. 10–568. Legislators do not have the constitutional authority to vote their personal views.

13thjuror

06-14-11 | 04:24 am

Rational Reasonableness


'A' rational person is most certainly inclusive of 'any', 'all' and 'every' person. 'All' persons who are police officers are rational and reasonable. If 'A' rational police officer is unreasonable then 'all', 'every' and 'each' police officer is unreasonable. Conclusion. If 'a' rational police officer is 'reasonable' then 'all', each, and 'every' police officer is either reasonable or unreasonable.

13thjuror

06-05-11 | 05:31 am

Qualified Immunity


In the Second Circuit, the qualified immunity analysis consists of a three-step inquiry examining whether there is an alleged violation of a constitutional right, whether the right was clearly established at the time of the conduct, and—if the right was clearly established—whether the defendants’ actions were objectively reasonable. Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir. 2003).... qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law” by giving “ample room for mistaken judgments.” quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). “An arresting officer is entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Golino, 950 F.2d at 870....an officer who violates this right is entitled to qualified immunity “[i]f the officer’s mistake as to what the law requires is reasonable.” Saucier v. Katz, 533 U.S. 194, 205 (2001). “In the context of an excessive force claim, ‘the question for the purposes of qualified immunity is whether a reasonable officer could have believed that the use of force alleged was objectively reasonable in light of the circumstances.’” Faulks v. City of Hartford, No. 3:08-cv-270, 2010 WL 259076, at *11 (D. Conn. Jan. 19, 2010) (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)).

13thjuror

05-18-11 | 02:23 pm

from Nothing to Nothing


Stephen Hawking believes that nothing created everything and to nothing everything returns. Now that explains 'everything'!

13thjuror

05-01-11 | 04:51 am

Reasonable & Necessary Force


The determination as to whether the use of force was necessary to effect a lawful seizure can only be assessed if the totality of circumstances surrounding the incident are viewed from the perspective of a reasonable officer's selection of reasonable alternative police tactics.

13thjuror

04-26-11 | 06:35 am

Intent to Kill


‘‘To act intentionally, the defendant must have had the conscious objective to cause the result... state of mind is rarely available... intent is often inferred from conduct... ‘‘An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’’ State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981)....one who ‘‘uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.’’ State v. Tomasko, supra, 238 Conn. 259."

13thjuror

04-26-11 | 04:23 am

Qualified Immunity


In the Second Circuit, the qualified immunity analysis consists of a three-step inquiry examining whether there is an alleged violation of a constitutional right, whether the right was clearly established at the time of the conduct, and—if the right was clearly established—whether the defendants’ actions were objectively reasonable. See Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir. 2003). Thus, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law” by giving “ample room for mistaken judgments.” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). “An arresting officer is entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Golino, 950 F.2d at 870. “The right of an individual not to be subjected to excessive force has long been clearly established.” Calamia v. New York, 879 F.2d 1025, 1036 (2d Cir. 1989). Nonetheless, an officer who violates this right is entitled to qualified immunity “[i]f the officer’s mistake as to what the law requires is reasonable.” Saucier v. Katz, 533 U.S. 194, 205 (2001). “In the context of an excessive force claim, ‘the question for the purposes of qualified immunity is whether a reasonable officer could have believed that the use of force alleged was objectively reasonable in light of the circumstances.’” Faulks v. City of Hartford, No. 3:08-cv-270, 2010 WL 259076, at *11 (D. Conn. Jan. 19, 2010) (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)).

13thjuror

04-25-11 | 07:39 am

Hypothetical Question


In Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918 (1957), we stated that the determination of the admissibility of a hypothetical question "calls for the exercise of a sound discretion as to whether the question, even though it does not contain all of the facts in evidence, presents the facts in such a manner that they bear a true and fair relationship to each other and to the whole evidence in the case . . . is not so worded as to be likely to mislead or confuse the jury, and is not so lacking in the essential facts as to be without value in the decision of the case."... An expert opinion cannot be based on conjecture or surmise but must be "reasonably probable." Kitkowski v. Goldberg, 115 Conn. 693, 696, 163 A. 413(1932). Any expert opinion that describes a "condition" as possible or merely fifty-fifty is based on pure speculation. ...A trier is not concerned with possibilities but with reasonable probabilities..."

13thjuror

02-08-11 | 09:53 am

Unquestioned Command


...handcuffs alone do not render a potentially dangerous subject completely safe...execution of a warrant may give rise to sudden violence or frantic efforts to conceal or destroy drugs. Michigan v. Summers, 452 U.S. 692 (1981)... the “risk of harm to the police and to citizens is minimized if the officers routinely exercise unquestioned command of the situation.”...Certainly,by briefly taking unquestioned command of the situation, Sergeant Lobrano and Detective Hinrichs were able to greatly reduce most if not all of the potential for danger.State v. Welch, 2011 La. App. LEXIS 141 (La. App. 4th Cir. February 2, 2011)...reviewing courts “must look at the ‘totality of the circumstances' of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)...(" 'Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.' ") (Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72, 104 L.Ed.2d 443 (1989))...)("Since police officers should not be required to take unnecessary risks in performing their duties, they are 'authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry ] stop.' “) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985)).

13thjuror

02-07-11 | 10:23 am

Expert Standard


Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.’

13thjuror

01-22-11 | 05:38 am

Plain and unambiguous


‘‘A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation.’’ Hartford/ Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 197–98, 3 A.3d 56 (2010). ‘‘In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.’’ General Statutes § 1-1 (a). ‘‘If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.’’ (Internal quotation marks omitted.) Key Air, Inc. v. Commissioner of Revenue Services, 294 Conn. 225, 235, 983 A.2d 1 (2009).‘‘The principle of legislative consistency is vital to our consideration of the subject statute’s relationship to existing legislation . . . governing the same subject matter . . . . [T]he legislature is always presumed to have created a harmonious and consistent body of law . . . . [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter . . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. . . . [T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or [nonaction] will have upon any one of them. . . . ‘‘[w]e are not permitted to supply statutory language that the legislature may have chosen to omit’’; Dept. of Public Safety v. Board of Labor Relations, 296 Conn. 594, 605, 996 A.2d 729 (2010); our mandate against ‘‘enlarg[ing] [the statute’s] scope by the mechanics of construction’’; Yale University School of Medicine v. Collier, supra, 206 Conn. 37...‘‘a harmonious and consistent body of law,’’ and one that ‘‘makes sense within the overall legislative scheme.’’ Sokaitis v. Bakaysa, supra, 293 Conn. 23.

13thjuror

01-04-11 | 03:51 am

Performance of Duty


"The phrase 'in the performance of his duties' means that the police officer is simply acting within the scope of what he's employed to do. The test is whether the police officer was acting in his capacity as an officer or engaging in some frolic of his own."

13thjuror

01-03-11 | 01:20 pm

Clear & Convincing Standard of Proof


Clear and Convincing standard of proof... ‘‘The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . ‘‘Although we have characterized this standard of proof as a middle tier standard . . . and as an intermediate standard . . . between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . . We have stated that the clear and convincing standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.’’ In re Giovanni C., 120 Conn. App. 277, 279–80, 991 A.2d 638 (2010).

13thjuror

01-03-11 | 04:20 am

Reasonable belief


A reasonable belief is one which a reasonably prudent officer in the same circumstances would have. It is not an irrational belief, nor is it a belief that is not justified by all the circumstances existing then and there, nor is it necessarily the belief that the officer in fact had; it is the belief that a reasonable officer would have had under the circumstances. Secondly, acting with that reasonable belief, the amount and the degree of force which the officer uses must be reasonable. It must be that degree of force that a reasonable officer in the same circumstances would use and no more.

13thjuror

01-03-11 | 03:59 am

Defamatory Statement


‘‘A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff’s reputation suffered injury as a result of the statement.’’ Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). As this court has stated on several occasions, and as the trial court recognized, if, however, the communications are uttered or published in the course of judicial proceedings, even if they are published falsely and maliciously, they nevertheless are absolutely privileged provided they are pertinent to the subject of the controversy. Kelley v. Bonney, supra, 221 Conn. 565. ‘‘Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false.. . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth.’’ Abdelsayed v. Narumanchi, 39 Conn. App. 778, 781, 668 A.2d 378 (1995), cert. denied, 237 Conn. 915, 676 A.2d 397, cert. denied, 519 U.S. 868, 117 S. Ct. 180, 136 L. Ed. 2d 120 (1996). ‘‘Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives.’’ State v. Whiteside, 148 Conn. 208, 212, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33 (1961); see also Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d236 (1985).

13thjuror

12-28-10 | 02:37 pm

Inferential Fallacy


Talisman Officer Safety Inferential fallacy…members of group “A” (e.g. traffic stops) are likely to be members of group “B” (i.e. inherently dangerous) , then group “B” is entirely, or even largely composed of members of group “A”. Although traffic stops are ‘inherently dangerous’ this does not mean that all persons stopped are “inherently dangerous”. Context matters to justify tactics.

13thjuror

12-28-10 | 01:48 am

Trier of Fact


Triers of fact are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.’’ State v. Fauntleroy, 101 Conn. App. 144, 153, 921 A.2d 622 (2007).

13thjuror

12-26-10 | 09:47 am

Force Counter-force


Moriarty v. Lippe, 162 Conn. 371, 389, 294 A.2d 326 (1972) (''[a] policeman may use no more force than is reasonably necessary to effect an arrest''; '' …'unlawful' '' defined as being intentional, wanton or negligent conduct in the application of force. fn16 The court in Moriarty was reviewing a jury instruction on assault charges against a police officer, and not charges of interfering with or assaulting a police officer. It would defy common sense, however, to conclude that a police officer may be charged with assault if his use of force was unlawful, but that a person may not defend himself against the same unlawful use of force without being subject to criminal charges himself.

13thjuror

12-21-10 | 02:41 am

Negligent Training & Supervision


Courts must apply a two-step test to determine whether the claims for negligent training and supervision fall within the discretionary function exception. First, courts must determine “whether the challenged actions were discretionary, or whether they were instead controlled by mandatory statutes or regulations.” United States v. Gaubert, 499 U.S. 315, 328 (1991). If the challenged actions were controlled by mandatory statutes or regulations, the defendant has no choice but to abide by them, and the conduct is not discretionary. Id. at 322. If the conduct is not controlled by a mandatory statute, courts must go to the second step and determine whether the judgment exercised was the kind of discretionary function that “the exception was designed to shield.” Id. at 322-23 (quoting Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988)). In this circuit, to sufficiently allege that a supervisor committed a constitutional violation, a plaintiff must show that “(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010) (“To be sure, „[t]he personal involvement of a supervisory defendant may be shown by evidence that: . . . the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom.”)See City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989) (“[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”)A supervisor who has been deliberately indifferent in failing to train is not liable for a passive constitutional violation based on the theory of respondeat superior. Instead, a failure to train can be an active violation on the part of a supervisor who has willfully chosen to allow the harm resulting from a lack of training. In these cases, a failure to train is more akin to those situations in which a defendant “create[s] a policy or custom under which unconstitutional practices occurred, or allow[s] the continuance of such a policy or custom,” which the Second Circuit post-Iqbal has recognized as a basis for liability. Scott, 616 F.3d at 110 (quoting Colon, 58 F.3d at 873).

13thjuror

12-20-10 | 05:39 am

PC is Fair Probability


In determining whether a warrantless arrest is supported by probable cause, the court is required to make a practical, non-technical decision whether, under all the circumstances, there is a fair probability that the defendant had committed or was committing a felony.State v. Velasco, 248 Conn. 183, 189±90, 728 A.2d 493 (1999)."The process of determining probable cause does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same -- and so are law enforcement officers."The police officer's decision . . . must be based on more than a hunch or speculation."

13thjuror

12-06-10 | 06:29 am

Franks Warrant Standard


“Material omissions from an affidavit are governed by the same rules as false statements.” U.S. v. Campino, 890 F.2d 588, 592 (2d Cir. 1989). Reckless disregard for the truth of statements set forth in the warrant “may be inferred where the omitted information was ‘clearly critical’ to the probable cause determination.” Rivera v. U.S., 928 F.2d 592, 604 (2d Cir. 1991). However, “the mere intent to exclude information is insufficient” to satisfy the test set forth in Franks;“‘Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.’” U.S. v. Awadallah, 349 F.3d 42, 68 (2d Cir. 2003) (quoting United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir.1990)). Probable cause is “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability” that the person identified has committed the alleged crime. Illinois v. Gates, 462 U.S. 213, 238 (1983).

13thjuror

12-04-10 | 04:46 am

False Arrest


..."the issue of whether or not probable cause to arrest exists is a legal determination that is not properly the subject of expert opinion testimony." Rizzo v. Edison Inc., 419 F. Supp. 2d 338, 348 (W.D.N.Y. 2005), aff'd No. 05- 3707, 172 Fed. App'x 391 (2d Cir. Mar. 24, 2006) (summary order). On the other hand, if a witness's own belief as to probable cause is relevant to the outcome of a case (for example, where a police officer is sued for false arrest, and claims that she believed she possessed probable cause to arrest), that witness's testimony about her own subjective belief may be admissible."...the credibility of witnesses is exclusively for the determination by the jury, and witnesses may not opine as to the credibility of the testimony of other witnesses at the trial." ...we have found error where an expert witness "stated that he `rejected' the possibility that [witnesses] had lied." Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005)."

13thjuror

12-03-10 | 07:21 am

Connecticut Force Justification


C.G.S 53a-22 "A peace officer. . .is justified in using deadly physical force upon another person for the purposes specified in subsection (b) of this section only when he reasonably believes such to be necessary to: (1) Defend himself or a third person from the use or imminent use of deadly physical force; or (2) effect an arrest or prevent the escape from custody of a person whom he reasonably believes has committed or attempted to commit a felony which involved the infliction or threatened infliction of serious physical injury and if, where feasible, he has given warning of his intent to use deadly physical force." Pursuant to subsection (1), a police officer may use deadly physical force when he reasonably believes the use of such force is necessary to defend himself from the use or imminent use of deadly physical force. The test is both subjective and objective. First, the officer must believe that the use of deadly force is necessary to defend himself from the imminent use of deadly physical force. Second, that belief must be objectively reasonable. See State v. Prioleau, 235 Conn. 274 (1995). The test is not whether it was in fact necessary for the officer to use deadly physical force in order to defend against the imminent use of deadly physical force. The test is whether the officer believed such to be the case, and whether such belief was objectively reasonable, based on the facts and circumstances known to the officer at the time the decision to use deadly force was made. See State v. Silveira, 198 Conn. 454 (1986); State v. Adams, 52 Conn. App. 643 (1999). The United States Supreme Court explained this test in detail in a civil rights action. "The reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. . . .The calculus of reasonableness must embody allowance of the fact that police officers are often forced to make split-second judgments----in circumstances that are tense, uncertain, and rapidly evolving----about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 109 S.CT 1865, 104 L.Ed. 2d 443 (1989). thus...the officer may be liable if he did not believe the amount of force was necessary, or if his belief was unreasonable under the circumstances."

13thjuror

11-30-10 | 04:11 am

Contexual Parts


"It is a well settle rule that the use of force must be evaluated from within its contextual entirety, rather than by its individual component parts."

13thjuror

11-28-10 | 05:36 am

Training Sense


A Police Training program can not rely solely on common sense judgment. If the police task referred to as “judgment making” is a usual and recurrent behavior, then training must address this task, sooner, rather than later. A 10% training skill level is not sufficient to demand 100% safe, relevant, and realistic accountability to exercise due process of law judgment skills. The ‘causal continuum’ states, If it is bound to happen, sooner or later, train for it sooner, rather than later. Serendipitous convergence is not the foreseeable requirement of a sound training program. However, if an event is more likely to occur then not, then it would be unreasonable not to prepare for this obvious reasonably possible consequence.

13thjuror

11-25-10 | 02:14 am

Constitutional Trouble-Maker


"...the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing."Plakas v. Drinski 19 F3d 1143 (7th Cir. 1994).

13thjuror

11-08-10 | 05:51 am

Negligence Duty


‘‘The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.’’ Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). T]he existence of a duty of care is an essential element of negligence.. . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.’’ Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008). "

13thjuror

10-21-10 | 11:50 am

LEO Safety Act Concealed Weapon Carry


S. 1132 Law Enforcement Officers Safety Act Improvements Act of 2010 Public Law 111-272 Signed by President Obama - October 12, 2012 9/29/2010--Passed House without amendment. (This measure has not been amended since it was reported to the Senate on March 11, 2010. The summary of that version is repeated here.) Law Enforcement Officers Safety Act Improvements Act of 2010 - Amends the federal criminal code to include a law enforcement officer of the Amtrak Police Department and the Federal Reserve or a law enforcement or police officer of the executive branch as a qualified law enforcement officer eligible to carry concealed firearms. Expands the definition of "firearm" to include ammunition not expressly prohibited by federal law or subject to the provisions of the National Firearms Act. Revises the definition of "qualified retired law enforcement officer" to: (1) include officers separated (currently, retired) in good standing from service with a public agency as a law enforcement officer; and (2) reduce the years-of-service requirement for such officers from 15 to 10 years. Revises: (1) requirements for firearms certification for such separated officers to allow firearms training in accordance with the standards of the officer's former agency, the state in which such officer resides, or if such state has not established training standards, standards established by a law enforcement agency within the state or those used by a certified firearms instructor; and (2) mental health requirements for such officers.

13thjuror

10-05-10 | 02:38 am

Petit Jury Question


Petit Jury Question: "Is the pouring of gas starting a fire?"An act or omission to act is a proximate cause of the (death / injuries) when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the (death / injuries). It is a cause without which the (death / injuries) would not have occurred. It is a predominating cause, a substantial factor from which the (death / injuries) follow[s] as a natural, direct and immediate consequence.It does not matter whether the particular kind of harm that results from the defendant's act be intended by the defendant.]2 When the result is a foreseeable and natural result of the defendant's conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible. STATE v. GAINES, 36 Conn. App. 454, 651 A.2d 1297 (Conn.App. 12/27/1994)...Webster's Third New International Dictionary (1966) defines "start" as "to begin an activity or undertaking . . . to bring into being: initiate, originate." Given Pappas' clear intent, his actions in carrying out that intent and the plain, common sense meaning of the statutory language, the jury reasonably could have found that Pappas indeed started the fire.... Pappas filled six containers with gasoline and hid them in the restaurant. Later that night, Pappas returned and spread the gasoline in various areas of the restaurant. Although Pappas intended to ignite the gasoline, the vapors ignited spontaneously before he had a chance to do so. The restaurant was destroyed by the resulting fire. Thus, Poring 'gasoline' is 'starting' the 'fire' for purposes of felony homicide quilt."

13thjuror

10-04-10 | 03:51 am

Due Notice


A law or regulation is impermissibly vague if it does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006). “‘[W]e assume that man is free to steer between lawful and unlawful conduct” and we give him notice of what is prohibited “so that he may act accordingly.’”

13thjuror

09-30-10 | 04:18 am

Discretionary Act Immunity


Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.’’ Violano v. Fernandez, 280 Conn. 310, 318–19, 907 A.2d 1188 (2006). Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982). This court has explained the policy rationale for this immunity as follows: ‘‘Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . .

13thjuror

09-25-10 | 04:21 am

Free Speech


"For speech to garner First Amendment protection and, thus, be protected from retaliation, the speech must be made as a citizen, as opposed to owing itself to the performance of official duties, and must address a matter of public concern. Speech on a matter of public concern does not include speech made pursuant to the employee’s official duties. When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe on any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned. The impact of Garcetti has been to enable employers to retain control over speech that “owes its existence to a public employee’s professional responsibilities”. The Court in Garcetti was careful to note the important role of legislative enactments in the form of whistleblower statutes or labor code provisions to offer protection for employees who wish to expose governmental inefficiency and misconduct. “Activities undertaken in the course of performing one’s job are activities pursuant to official duties. Garcetti v. Ceballos, 361 F.3d 1168 (9th Cir. 2006)

13thjuror

09-10-10 | 05:16 am

Survive


Survive - Poem by Reginald F. Allard, Jr. Engulfed by the night, immersed in unbridled rage, Fear’s shadow embraces my body’s courage. You and I, In the roadside hollow, collide. Far from a referee and friendly vision, Entangled in your arms, built by prison. Far from memories of family love and laughter, In pain’s maelstrom, veins tear, muscles rip, bones shatter. Far from the reach of help, bathed in the stench of beer. Smeared with mud and co-mingled blood, rage battles fear. Although, the battle fierce, my flesh pierced, I Fight to survive, Until the Light embraces my soul’s honor and pride.

13thjuror

09-09-10 | 08:31 am

Irrational Standard


A police officer's actions are arbitrary only if, in light of the factual and legal Case Law at the time of the seizure, the officer's behavior is so far outside a wide range of reasonableness as to be irrational.

13thjuror

09-08-10 | 11:11 am

Less Reasonable Path


‘‘[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . .[t]he line between permissible inference and impermissible speculation is not always easy to discern. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.’’ State v. Copas, 252 Conn. 318, 338–39, 746 A.2d 761 (2000).

13thjuror

08-17-10 | 12:31 pm

Confabulation


Confabulation - Mixing the Chemistry of Memory Gaps to shape 'new' memories. Psychology - "To fill in gaps in one's memory with fabrications that one believes to be facts"

13thjuror

08-11-10 | 05:42 pm

Shall be done!


DIANA STARKS v. UNIVERSITY OF CONNECTICUT ET AL. (SC 17013) July 6, 2004... ‘‘There is a presumption that the legislature, in enacting a law, does so with regard to existing relevant statutes so as to make one consistent body of law.’’ State v. Murtha, 179 Conn. 463, 466, 427 A.2d 807 (1980). In addition, when statutes provide that an activity shall be performed in a certain manner, there ordinarily is an implied prohibition against performing that activity in a different fashion. State v. Kelly, 208 Conn. 365, 371, 545 A.2d 1048 (1988) (‘‘[a] statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way’’

13thjuror

08-09-10 | 10:08 am

Knowing


‘‘As a matter of language, the word ‘‘knowing’’ [and therefore knowledge] literally imports something pretty close to 100 [percent] certainty; ‘‘believing,’’ something less than certainty; and ‘‘suspecting,’’ something less certain than ‘‘believing.’’’ 2 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 8.10, p. 427. Black’s defines ‘suspicion’ to mean ‘[t]he apprehension of something without proof or upon slight evidence. Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to proof.’ Black’s Law Dictionary (6th Ed. 1990). Webster’s states that ‘suspicion’ means ‘imagination or apprehension of something wrong or hurtful without proof or on slight evidence.’ Webster’s Third New International Dictionary (1986). ‘Suspicion’ then does not rise to the level of ‘belief,’ let alone ‘knowledge.’ ’’ State v. Fuller, 56 Conn. App. 592, 620–21, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000).

13thjuror

07-21-10 | 05:53 am

More or Less Innocent


What an arrest means is that you are probably more or less innocent because evidence is less than that required for conviction 'beyond a reasonable doubt' , but is considerable less than proof of wrongdoing by a 'preponderance of the evidence' and yet more than bare suspicion of crime afoot. Articulating precisely what the fluid concepts of “reasonable suspicion” and “probable cause” mean are not possible and are incapable of precise definition or percentage quantification. Probable cause is the description of the degree of probability that cannot be easily defined nor weighed as to appropriateness and proportionality out of context. Context counts.

13thjuror

07-19-10 | 07:22 am

The Imperfect Truth


A police officer is not expected to exercise superhuman judgment void of reasonable mistakes. Based upon a standard of reasonable belief, an officer perceives the necessity to act within the context given his/her power and authority to act. The judgment is expected to be impartial and further filtered through the community's sense of 'common sense'. Justice demands fair due process, not judgment without error.

13thjuror

07-19-10 | 07:12 am

Illegal Immigrant


The illegal immigrant goes free, if he/she must, but it is the law that sets them free. Nothing can destroy a government more quickly than its failure to observe its own laws. An Illegal immigrant is not an 'undocumented' alien or 'nonimmigrant' alien. He/she is an 'illegal' immigrant.

13thjuror

07-16-10 | 06:42 am

Mistake of Fact


01/28/86 State of Connecticut v. Silveira A mistake of fact results "when one makes an erroneous perception of the facts as they actually exist." The defense arises only where the defendant misperceives an objective state of existing fact, and does not apply to the defendant's erroneous suppositions as to the unformed intentions of another. A fact is that which has taken place, not something that might or might not take place in the future. "Now he may be wrong in such belief, but if it has a reasonable basis, if he has a reasonable basis to believe that an assault against himself or against another was about to take place and that the actors were about to use deadly physical force or force capable of inflicting great bodily harm, he is justified in using deadly physical force . . . ." Sec. 53a-6. Effect of ignorance or mistake. (a) A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense; or (2) the statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or (3) such factual mistake is of a kind that supports a defense of justification. (b) A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless (1) the law provides that the state of mind established by such mistaken belief constitutes a defense, or unless (2) such mistaken belief is founded upon an official statement of law contained in a statute or other enactment, an administrative order or grant of permission, a judicial decision of a state or federal court, or an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law. Sec. 53a-5. Criminal liability; mental state required. When the commission of an offense defined in this title, or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally", "knowingly", "recklessly" or "criminal negligence", or by use of terms, such as "with intent to defraud" and "knowing it to be false", describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.

13thjuror

07-14-10 | 10:26 am

More Likely


If an event is more likely than not, it is as likely not to be as it is likely to be. A decision under conditions of uncertainty judged from a perspective of retospective judgement, lacks the truth of the original decision-making context. Truth matters, but only within its' context.

13thjuror

07-09-10 | 07:53 am

Bad Purpose


Police seizure conduct specifically intended and knowingly performed with willful bad purpose and done purposely, is reckless conduct."[T]he government must establish beyond a reasonable doubt that the defendant officer acted willfully, that is, that the defendant committed such act or acts with a bad purpose or evil motive. To find that a defendant officer acted willfully, you must find that the officer had the specific intent to deprive another of the federally protected right. “‘Wilfulness,’ as defined within the context of section 242, requires the jury to find that a defendant officer acted ‘in open defiance or in reckless disregard’” of a federal right “which has been made specific and definite.”

13thjuror

06-22-10 | 01:35 pm

Public Employee Speech


"when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."... for a lawsuit adequately to charge a First Amendment retaliation claim, the lawsuit must be predicated on speech made by a public employee as a citizen, and not pursuant to his or her official duties....Whether public employee speech is protected from retaliation under the First Amendment entails two inquiries:(1) "whether the employee spoke as a citizen on a matter of public concern" and, if so, (2) "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Garcetti, 126 S.Ct. at 1958 (citing Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, Will County, 391 U.S. 563, 568 (1968)); see also Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006) (rephrasing the test for a First Amendment retaliation claim as three-pronged, requiring plaintiffs to prove: "(1) they engaged in constitutionally protected speech because they spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action; and (3) the speech was a motivating factor in the adverse employment decision" (internal quotation marks and citation omitted)). The majority opinion in Garcetti focused on the first inquiry, and specifically its operation as a limiting principle when the government is acting as an employer, exercising control over employee speech in the interest of the "efficient provision of public services." Garcetti, 126 S.Ct. at 1958. Recognizing that government employers (like private employers) "have heightened interests in controlling speech made by an employee in his or her professional capacity," the Supreme Court ruled that a public employee speaking in his official capacity is not speaking as a citizen for First Amendment purposes, id. at 1960, and employer retaliation for such speech does not justify the "displacement of managerial discretion by judicial supervision,"...under Garcetti, the First Amendment does not protect a government employee from retaliation for filing a lawsuit in which the underlying retaliation claim rests on non-actionable official speech...."Whether an employee's speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record." Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999) (citing Connick v. Myers, 461 U.S. 138, 147-48 and n.7 (1983)). The heart of the matter is whether the employee's speech was "calculated to redress personal grievances or whether it had a broader public purpose." Lewis, 165 F.3d at 163-64.... retaliation against the airing of generally personal grievances is not brought within the protection of the First Amendment by "the mere fact that one or two of [a public employee's] comments could be construed broadly to implicate matters of public concern." Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991)....*fn1 As the Garcetti Court observed, public employees who suffer retaliation for their official speech are not without recourse, and should avail themselves of the "powerful network of legislative enactments--such as whistle-blower protection laws and labor codes--available to those who seek to expose wrongdoing." Garcetti, 126 S.Ct. at 1962. We express no opinion as to the availability of such recourse to Ruotolo. 126 S.Ct. 1951, 1960 (2006)....Ruotolo v. City of New York, No. 06-3886-cv (2d Cir. 02/06/2008)

13thjuror

06-13-10 | 05:57 am

Life-Death Reasonable Steps


"'A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made.'"State v. Bates, 304 Ore. 524,525, 747 P2d 991 (1987

13thjuror

06-12-10 | 01:16 pm

Standards of Proof


Probable cause to arrest means that the facts and circumstances surrounding the person arrested equate as likely to innocence as to guilt. Common Sense can not reach to reasonable inferences of truth and motive without experience in the conduct being judged. The purpose of justice is to guard against sympathy, bias, prejudice, and specualtion to reach to independant fair and neutral judgment. The Preponderance of Evidence standard of proof means the factual evidence presented at trial is believed "more likely true than not true".

13thjuror

06-07-10 | 04:36 am

Leaf


Immersed within a Rainbow midst, silence. Earth’s breath cradles a falling leaf. Bathed by the warmth of butterfly wings, Listen. Heartbeats echoing. From the depths of earth’s womb, living waters course the mountain valley. Trees stretch their roots to nourish from the Cosmic Stream. Sunshine embraces the shadows. Droplets of crystal light fall from the mountain laurel petals. Within an emerald fire midst, mountains whisper memories of ages past and those yet to come. Upon my hand, the leaf finds comfort. by Reginald F. Allard, Jr.(1997).

Reginald F. Allard, Jr.

06-05-10 | 03:47 am

Accosting


The very phrase "consensual frisk" borders on being an oxymoron. The police and prosecutorial "take" on the phenomenon of accosting is frequently disingenuous. In pure theory, an accosting, if it is more than a convenient fiction, is a voluntary conversation between two equals, with neither enjoying any advantage or semblance of control over the other. The officer may no more impose police policy or departmental requirements on a mere accosting than may the civilian impose reciprocal conditions.: "I'm sorry, Officer, but it is my personal policy not to engage in voluntary conversation with armed men. I'll be glad to talk to you, but first you must drop your gunbelt to the ground and then sit down on the curb where I can see your hands at all times. Then we can enjoy our talk together." That's not the way, of course, that voluntary conversations work. Between equals, the required civilities flow in both directions, lest the confrontation escalate, as it almost always does, into something more formal and official than a mere accosting. TERRY KEITH EPPS, JR. v. STATE OF MARYLAND May 28, 2010

13thjuror

06-01-10 | 04:08 am

Shoot to Kill


If a police officer does not intend to cause serious physical injury or death then don't shoot. State v. Smith, 73 Conn.App. 173, 807 A.2d 500 (Conn.App. 10/22/2002)...we conclude that the jury reasonably could have found that the defendant ( officer Smith) intended to cause the victim's death. The defendant, citing his trial testimony, concedes that he "fired the shot to disable [the victim] . . . ." He further concedes that "it is certainly possible, and maybe even probable, that the defendant's 'conscious objective' was to [cause a serious physical injury]." The jury was entitled to credit the defendant's testimony concerning his intent to disable the victim and the possibility or probability that his objective in shooting the victim was to cause a serious physical injury. Moreover, Connecticut case law clearly permits a jury to infer intent based solely on the undisputed facts of the case, let alone other testimony and evidence that the parties dispute. See State v. Sanders, supra, 54 Conn. App. 739 (reasonable to infer intent to cause serious physical injury to person where defendant fired gun at that person); State v. Toczko, 23 Conn. App. 502, 509, 582 A.2d 769 (1990). "A person's intent is to be inferred from his conduct and the surrounding circumstances and is an issue for the [trier of fact] to decide." State v. Nosik, 245 Conn. 196, 208, 715 A.2d 673, cert. denied, 525 U.S. 1020, 119 S. Ct. 547, 142 L. Ed. 455 (1998). "[A] factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident." State v. James, supra, 54 Conn. App. 31. "Because direct evidence of the accused's state of mind is rarely available, intent is often inferred from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom." State v. Sanders, 54 Conn. App. 732, 738, 738 A.2d 674, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999), citing State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

13thjuror

05-29-10 | 03:45 am

Objectively Unreasonable Standard


Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) ("The objective reasonableness test is met if 'officers of reasonable competence could disagree' on the legality of the defendant's actions."). An officer's actions will be found objectively unreasonable, and summary judgment will be denied only if "no officer of reasonable competence could have made the same choice in similar circumstances." Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995). (“Disputes over reasonableness are usually fact questions for juries.”) Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied, 498 U.S. 967, 111 S. Ct.431, 112 L. Ed.2d 414 (1990)).In Graham, the Supreme Court held that "all claims that law enforcement officers have used excessive force -- deadly or not ­­ in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach." Id. at 395. In determining whether the force used to effect a particular seizure is reasonable, a court must evaluate the particular circumstances of each case. As the Graham Court stated: Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v. Wolfish, 441 U.S. 520, 559 (1979), . . . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S. [1], at 8-9 [(1985)] (the question is "whether the totality of the circumstances justifie[s] a particular sort of . . . seizure"). the test for evaluating self-defense claims pursuant to § 53a-22 is a subjective-objective test. The jury is required, first, to determine whether the defendant honestly believed that the use of deadly force was necessary in the circumstances. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable police officer in the defendant's circumstances. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (evaluating reasonableness of police officer's belief that deadly force justified in context of fourth amendment excessive use of force claims, stating that "[t]he [objective] reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight"); Weyel v. Catania, 52 Conn. App. 292, 296, 728 A.2d 512 (all claims that law enforcement officers have used excessive force in the course of an arrest, whether deadly force or not, should be analyzed under the reasonableness standard of the fourth amendment), cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).

13thjuror

04-26-10 | 08:45 am

Immigration Status


In a March 22, 2005 ruling, in Muehler v Mena, in unanimous decision from a Court known for its 5-4 splits, the United States Supreme Court essentially said that asking about immigration status during a lawful police contact (or, by implication, any lawful contact) was as fundamental a question as asking for name, address and date of birth. Indeed, the Court made clear that no predicate "independent reasonable cause' need exist to inquire into immigration status. It is the Law of the Land. “In Muehler v. Mena the Court reinforced the clear intent of Congress in this matter,” “Inquiring about an individual’s immigration status can and should be a routine part of ascertaining information, no different than asking questions about one’s name, or date and place of birth. Local police come into contact with people who are violating federal immigration laws on a daily basis. Freeing local police to inquire about an individual’s immigration status and allowing them to act is essential to curbing mass illegal immigration and protecting our homeland security.”

13thjuror

04-25-10 | 09:56 am

Prospective Judgments


FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT Docket #FIC 2006-020 August 9, 2006 Eric Cotton and The Meriden Record Journal v Chief, Police Department, City of Meriden ...videotapes reviewed in determining whether Officer Brian Lawlor violated department policies regarding use of force leading to his termination It is further found, based upon the testimony of attorney Gailor and the in camera inspection, that if IC-2006-020-1 was disclosed, it would be prejudicial to a prospective law enforcement action, because of the potential for influencing witness testimony. Independent recollections of witnesses could be tainted if witnesses have an opportunity to view the videotape. Through the power of suggestion, witnesses could believe they remember events that they did not see. Moreover, if third parties view the videotape, these third parties may attempt to persuade witnesses that they saw something different from what they previously thought they saw.

13thjuror

04-24-10 | 08:08 am

Connecticut Immigration Arrest Authority


Connecticut Peace Officers have had the arrest authority to 'arrest' illegal immigrants since 1975. Connecticut General Statute Sec. 54-1f. Arrest without warrant. Pursuit outside precincts. (a) For purposes...Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others.... (b) Members of the Division of State Police within the Department of Public Safety or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony. (c) Members of any local police department or the Office of State Capitol Police and constables and state marshals who are certified under the provisions of sections 7- 294a to 7-294e, inclusive, and who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed. (d) Any person arrested pursuant to this section shall be presented with reasonable promptness before proper authority. Connecticut General Statute Sec. 53a-24. Offense defined. Application of sentencing provisions to motor vehicle and drug selling violators... (a) The term "offense" means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term "crime" comprises felonies and misdemeanors. Every offense which is not a "crime" is a "violation". Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense. ...Connecticut Public Act 75-380 amended Subsec. (a) to include breach of federal and other states' laws as offense..."

13thjuror

04-23-10 | 02:54 pm

Credibility


"Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record."Briggs v. McWeeny 260 Conn. 327.

13thjuror

04-22-10 | 12:01 pm

Legal Conclusion


Pursuant to Federal Rule of Evidence 704(a), “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Thus, a witness may testify to his opinion on an ultimate issue of fact, but he cannot simply tell the jury what to decide. Montgomery v. Aetna Cas. & Sur. Co.,898 F.2d 1537, 1541 (11th Cir. 1990). The witness also cannot testify to the legal implications of conduct because the court must be the jury’s only source of law. Id. (finding that an expert witness’s testimony amounted to a legal conclusion where he essentially testified that one party breached a contract).

13thjuror

04-22-10 | 07:05 am

Discrimination


Every police officer who is certified to work in this country has the right to know he/she will be free from discrimination as they perform their lawful duties, and that they will be on the same playing field as every other police officer.

13thjuror

04-21-10 | 07:29 am

Practice of Law


Connecticut - An Act Concerning the Unauthorized Practice of Law Section 1. Section 51-88 of the General Statutes is repealed and the following is substituted in lieu thereof: (Effective October 1, 2009) (e) “Practice law” and “practice of law” as used in this section means the doing of any act for another person usually done by attorneys at law in the course of their profession, and includes but is not limited to: (1) the appearance or acting as the attorney, solicitor, or representative of another person before any court, referee, magistrate, special master, auditor, division, department, commission, board, judicial authority, or body authorized by law to determine any question of law or fact or to exercise any judicial or governmental power; (2) the preparation of pleadings or other legal papers incident to any action or other proceeding of any kind before or to be brought before the court or other body; (3) the giving or tendering to another person for consideration, direct or indirect, of any advice or counsel pertaining to a law question or a court action or judicial proceeding brought or to be brought; (4) the undertaking or acting as a representative or on behalf of another person to commence, settle, compromise, adjust, or dispose of any civil or criminal case or cause of action; (5) the preparation or drafting for any person of a will, codicil, corporation organization, amendment or qualification papers, or any instrument which requires legal knowledge and capacity and is usually prepared by attorneys at law.

13thjuror

04-20-10 | 01:34 pm

Noblesse Oblige


"...the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001). This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint....the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002."

13thjuror

04-20-10 | 06:11 am

Happy Creation!


Thinking happens whether you think about it or not. Think Well! Happy Creation!

Reginald F. Allard, Jr.

04-19-10 | 11:45 am

Self-Protection 2nd Amendment


The 2nd Amendment does not require a homeowner to dial 911. Life is as a legitimate need as is livelihood. ...‘‘crimes against the person like . . . burglary are, in common experience, likely to involve danger to life in the event of resistance by the victim’’ Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life . . . .’’ ‘‘[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing [or hockey] referee, poised to stop a bout only if it becomes too one-sided’’ As former Chief Justice Burger stated in his frequently cited opinion in Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963): ‘‘[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. . . . [T]he business of policemen and firemen is to act, not to speculate or mediate . . . . People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process.’’

13thjuror

03-30-10 | 01:23 pm

Lies


You might be a cop if: What you saw and what you believe are lies, because others did not see it and do not believe it!

13thjuror

03-16-10 | 07:43 am

Discretion


"The common-law doctrines that determine the tort liability of municipal employees are well established . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Martel v. Metropolitan District Comm'n, 275 Conn. 38, 48-49 (2005) "Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. Discretionary act immunity reflects a value judgment that - despite injury to a member of the public - the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury. In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion. This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." Doe v. Peterson, 279 Conn. 607, 614-15 (2006).in Connecticut, the operation of a police department is a discretionary governmental function. This includes the training and supervision of police officers....instructing, supervising, controlling and disciplining police officers were found to be discretionary acts as a matter of law....There are three exceptions to discretionary act immunity. "Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity - to encourage municipal officers to exercise judgment - has no force. First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." Peterson, 279 Conn. at 615-16.

13thjuror

03-16-10 | 03:02 am

Duty


Law-Speak - "An off-duty peace officer who observes a crime in progress immediately becomes an on-duty officer. A peace officer is not relieved of his duty to prevent crime when he witnesses an illegal act simply because he is off-duty. The excessive-force inquiry is not made from an ex post perspective, but from the ex ante "perspective of a reasonable officer on the scene". The amount of force that is constitutionally permissible must be judged by the context in which the force is deployed. An "officer could make a constitutionally reasonable judgment based on a factual misperception."

13thjuror

03-15-10 | 04:43 am

Pursuit Reckless Disregard


"Common sense dictates that a different standard ought to apply when officers are in pursuit of a lawbreaker who, in the ensuing chase, collides with and injures a third party. The duty to pursue and apprehend law violators should not be fettered by the specter of secondary liability based on a due care standard. It is the law violator who, in his efforts to escape justice, collides with the third party and directly causes the injuries. Only when the officer is guilty of gross negligence or reckless conduct in the pursuit that causes or contributes to the collision by the lawbreaker should liability attach. For this reason, we decline to follow those courts that impose the "due care" standard illustrated by the Connecticut case of Tetro. They have apparently ignored the "reckless disregard" language that plainly appears in their emergency vehicle statutes.THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 07/30/91 Wilma J. Peak and David v. Jerold E." What type of conduct is reckless or amounts to gross negligence in a pursuit context cannot be determined by a simple formula."

13thjuror

02-27-10 | 06:00 am

Wilfull & Wanton


BATES v. MCKEON, 650 F. Supp. 476 (D. Conn. 11/20/1986) Connecticut courts have emphasized the primacy of intention in their definitions of "wantonness" and "malice": "A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was a voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional." Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). "A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances." Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may also be satisfied if the resultant harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). "It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 (1929).

13thjuror

02-23-10 | 06:42 am

Duty to Protect


Under the special relationship theory the state is responsible for preventing harms to an individual only when the state has taken away the power of that individual to defend himself. “[A] State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney, 489 U.S. at 197, 109 S.Ct. at 1005, 103 L.Ed.2d at 259. The next time you are alone and in imminent serious physical harm, point your finger at the assailant and yell "911". If this stops the violent act, the state was not required to allow you your 2nd amendment right to carry a firearm. If it did not then that is not the state's fault.

13thjuror

02-14-10 | 10:00 am

Tactical Luck


Tactical Luck is Experience Engaging Training™

13thjuror

02-14-10 | 09:35 am

WISH


Wish is a four-lettered word that takes the place of 'Now'. Change necessitates persistent resislence. Future is what present does!. "Be the Change"

Reginald Allard, Jr.

02-14-10 | 07:05 am

Remember Me


Remember Me. I have left within your heart, memories of times past. Within you, I live. The nourishing breath of the Creator swirled within our lungs, With each kiss, as one, we exhaled the light of our souls into each other. Together, we once stood upon Mother Earth, surging with nature’s energy, Nourished by her living waters. When our lips last parted, into eternity, I brought your breath. Time has since passed me by. Remember me, when angel tears bathe your face. Remember me, when the creator’s smile warms your flesh. Remember me when leaves fall from the trees. I am the leaf. I am the breath of Mother Earth. I am the heartbeat of the butterfly. Your breath is my eternal companion awaiting your embrace. Remember me. Reginald F. Allard, Jr. – 1996/2010

Reginald F. Allard, Jr.

02-07-10 | 10:42 am

Liberty


"The Fourth Amendment is a 'for profit' organization whose 'balance sheet' requires a "costs" anaylsis effect upon one's personal liberties."

13thjuror

02-04-10 | 12:00 pm

Four Words


Jury Charge: "A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers a peace officer in the performance of such peace officer's duties. For you to find the defendant guilty of this charge, the state must have proven the following elements beyond a reasonable doubt; one, that the defendant obstructed, resisted or endangered a peace officer; two, that the conduct of the defendant occurred while the police officer was in the performance of his duties; and three, that the defendant intended to obstruct, resist, hinder or endanger the peace officer while that peace officer was in the performance of his duties. If you find that he was a peace officer, you would go on to the other elements of this crime and, with the first element, there [are] four words describing the way interference may be committed. Obstructs means to interpose obstacles or impediments to impede or in any manner to intrude or prevent. These words do not imply the use of direct force or the exercise of direct means. Resist means oppose by direct, active or forcible or quasi-forcible means. Hinders means to make slow or difficult the progress to hold back or delay or impede or prevent action by the police."

13thjuror

02-04-10 | 10:14 am

Thought


Although scientific evidence is relevant to a determination of what is physically impossible, it does not negate a person's common sense derived from one's own observations and experiences of life.

13thjuror

02-03-10 | 04:17 am

Practice of Law


Section 51-88 of the Connecticut General Statutes (e) “Practice law” and “practice of law” as used in this section means the doing of any act for another person usually done by attorneys at law in the course of their profession, and includes but is not limited to: (1) the appearance or acting as the attorney, solicitor, or representative of another person before any court, referee, magistrate, special master, auditor, division, department, commission, board, judicial authority, or body authorized by law to determine any question of law or fact or to exercise any judicial or governmental power; (2) the preparation of pleadings or other legal papers incident to any action or other proceeding of any kind before or to be brought before the court or other body; (3) the giving or tendering to another person for consideration, direct or indirect, of any advice or counsel pertaining to a law question or a court action or judicial proceeding brought or to be brought; (4) the undertaking or acting as a representative or on behalf of another person to commence, settle, compromise, adjust, or dispose of any civil or criminal case or cause of action..."

13thjuror

01-11-10 | 08:16 am

Set Me Free


Generally Speaking, Reasonableness comes 'before' Probable Cause. Officer safety is a 'special need' but it is not a sub-probable cause 'talisman' justifying unfettered and unlimited discretion. Suspicionless search and seizure practices cannot be generally tolerated. Probable cause does not depend upon an arresting officer's subjective patterned 'safety' perceptions of threat. Threat Response reasonableness is an objective assessment. Probable cause is not a matter of convenience open to subjective abuse of discretion. Because a law enforcement officer is the sentry gate-keeper of the State and Federal Constitution, suspiciousless searches and seizures become the springboard of injustice. The consequence is 'loss of liberty'. Probable cause has always been a fact-specific and fluid concept rather than a rubber-stamped supervisory approval. Anything less than an impartial factual circumstance review is acquiescence to unsupported probable cause. A 'general interest in officer safety' is not a sufficient justification for a departure from individualized suspicion of threat. Suspicionless searches and seizures are rarely permitted with the understanding that they are unusually offensive to individual liberties. Give me sufficient objective justifiable suspicion or 'set me free'.

13thjuuror

12-17-09 | 08:39 am

Expert Witness


‘‘It is well settled that [t]he true test of the admissibility of [expert] testimony is . . . whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue.’’ State v. Banks, 117 Conn. App. 102, 116, 978 A.2d 519 (2009).

13thjuror

12-15-09 | 06:42 am

Aint over till it's over


Michigan v. Fisher, ___U.S.___ ; 2009 USLEXIS 8773 (2009). ...the test is not what the officer believed, but whether there was 'an objectively reasonable basis for believing' that [the use of force] was reasonable... Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances.Cordova v. Aragon, 569 F.3d 1183 (10th Cir. 06/17/2009)...FN # 4 "It ain't over till it's over." Yogi Berra.) Such being the case, an officer cannot be expected to shoot, pause to evaluate the effect, and then calmly decide whether it is necessary or prudent to shoot again.

13thjuror

12-15-09 | 05:59 am

Reasonable Belief


Turning to the objective reasonableness of Tanella’s action, the State asserts that because Dewgard was about to flee, n16 Tanella’s decision to shoot was unreasonable. However, the question of whether Dewgard was in fact about to run away is entirely irrelevant to the reasonableness of Agent Tanella’s belief that Dewgard reached for his weapon. In this case, the proper focus of inquiry for Supremacy Clause purposes is whether Dewgard made a movement, not what that movement in fact turned out to be. If it is shown by the undisputed evidence that Dewgard made some movement, and if it was reasonable for Tanella to have perceived that movement as a threat to his life, he cannot be prosecuted for the shooting. It does not matter whether Tanella was correct in his perception, because proper application of the necessary and proper standard “does not require a [defendant] to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be.” Clifton, 549 F.2d at 728...This testimony reveals that immediately before being shot, Dewgard made some movement, which these witnesses interpreted as him trying to run away. That may be a reasonable inference. That also may be exactly what Dewgard was about to do. But this disputed issue of fact is not before me. Nor is it relevant to the resolution of Tanella’s claim of immunity. I must decide if it was objectively reasonable for Tanella to have interpreted that very same movement in a completely different manner, even if his interpretation or perception was ultimately mistaken. See Clifton, 549 F.2d at 729; Neagle, 135 U.S. at 76....Tanella’s perception was reasonable, even if mistaken, because under those conditions an ambiguous movement might be more easily confused with a threatening gesture. ...the forensic evidence [*623] in this case chiefly concerns the issue of what Dewgard may have been doing when he was shot. In light of my ruling on the issue of reasonableness, and my finding that the issue of Dewgard’s escape is irrelevant, the forensic evidence is of limited value. At the very least, however, Dr. Macajoux’s findings are consistent with Tanella’s version of events and do not undermine the reasonableness of his perception of Dewgard’s action.... based on all of the factors discussed here, I find that it was reasonable for Tanella to perceive (or even misperceive) Dewgard’s movement as reaching for his weapon. Accordingly, based on all the evidence presented, I hold that Tanella did no more than what was necessary and proper in the discharge of his duty, and he is therefore immune from prosecution. New York v Tanella. (2nd Cir).

13thjuror

12-13-09 | 08:06 am

Deadly Force Spectrum


Cordova v. Aragon, 569 F.3d 1183 (10th Cir. 06/17/2009) As Scott makes clear, the term(Deadly Force") encompasses a range of applications of force, some more certain to cause death than others. It includes force that is "likely" to cause serious injury or death, such as ramming, and also includes force that is nearly certain to cause death, such as a shot to the head. Scott strongly suggests that the reasonableness balancing must take into account that there is a spectrum of "deadly force," and that just because a situation justifies ramming does not mean it will justify shooting a suspect in the head. While the use of force to seize a suspect in a manner that is nearly certain to cause death, such as shooting a suspect in the back of the head, may be unreasonable as applied to a "young, slight, and unarmed" burglary suspect fleeing on foot, Garner, 471 U.S. 11, the use of force only "likely" to cause serious injury or death to seize one who poses an "extreme danger to human life" in a high-speed police pursuit may be reasonable, Scott, 550 U.S. at 382-83. "Scott strongly suggests that the reasonableness balancing must take into account that there is a spectrum of 'deadly force,' and that just because a situation justifies ramming does not mean it will justify shooting a suspect in the head." Cordova v. Aragon, --- F.3d ----, 2009 U.S. App. LEXIS 13043, at *12 (10th Cir. June 17, 2009).

13thjuror

12-10-09 | 07:01 am

Duty


Police officers deserve credit for doing their job, which is serving the public within the bounds of the law. An officer's duty is to serve the public and do what he/she was expected to do as part of his job which then promotes respect for the law, and provides just criminal punishment within the Criminal Justice Court System. A "reasonable, trained police officer" performs an 'Objectively Reasonable' response when his/her conduct is "shared by a reasonable police officer in the officer's circumstances". The "danger need not have been actual or real" at the moment the officer responded to the 'imminent' threat which is defined as 'potential' threat from "the officer's point of view".

13thjuror

12-08-09 | 06:38 am

Self-Defense


Because the risk of being a possible crime victim implicates a wide range of factors that can occur, if at all, at some unspecified time in the future or not at all, it is your responsibility to protect yourself from this known crime victim danger and this should be apparent to you. Because you are not an 'identifiable' and 'imminent foreseeable victim', police protection is not duty bound to protect you. Because you are not an identifiable person subject to imminent harm in that the potential for harm was neither sufficiently immediate nor sufficiently certain, when next you are faced with imminent harm, you can yell at your attacker, "911" or take your personal self-defense non-deadly and/or deadly countermeasures which are 'reasonable' and 'necessary' under the context of facts and circumstances confronting you to overcome the threatening encounter. You can either be a 'good victim' or a 'patriot'. The choice is yours.

13thjuror

11-20-09 | 03:18 am

Probabilistic Probability


The Fourth Amendment does not impose a "more likely than not" standard, either for probable cause or for reasonable articulable suspicion. Probable cause does not "deal with hard certainties, but with probabilities," nor does it demand that an officer’s reasonable belief of possible criminal activity "be correct or more likely true than false." Texas v. Brown, 460 U.S. 730, 742 (1983). "Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the probable-cause decision." Maryland v. Pringle, 540 U.S. 366, 371 (2003) Not even a "prima facie showing" of criminality is required. Illinois v. Gates, 462 U.S. 213, 235 (1983). Instead, probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Id. at 243 n.13. "Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." Wardlow, 528 U.S. at 123.

13thjuror

11-16-09 | 03:23 am

Mind-Field


We agree with the court that the risk associated with the town's allegedly wrongful inaction is not the equivalent of "ordering [a] soldier to walk through a mine field all by himself just to see if it was working." PAUL MELANSON v. TOWN OF WEST HARTFORD ET AL.(A C 20399)February 13, 2001.Pahler v. Wilkes-Barre, supra, 351 (‘‘[The plaintiff police officer] entered into [his] job voluntarily and fully aware of the substantial risks of harm faced on a daily basis. City policemen, unlike private citizens, are constantly faced with dangerous situations in which they risk possible injury.’’); Hartman v. Bachert, supra, 351 (‘‘[The decedent] entered into his duties as a [d]eputy [s]heriff voluntarily and with knowledge of the possible dangers faced by law enforcement personnel. More than the sanitation worker in Collins, [the] decedent’s job involved routine exposure to danger, and he was aware of the substantial risk of harm faced daily. . . . [T]he state did not force [the] appellant to become a [deputy sheriff], and the state has no constitutional obligation to protect him from the hazards inherent in that occupation.’’

13thjuror

11-15-09 | 07:27 am

Deadly Force Spectrum


Cordova v. Aragon, 569 F.3d 1183 (10th Cir. 06/17/2009).When discussing excessive force, we sometimes use the term "deadly force" as if it is a unitary concept. See, e.g., Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995) ("Defendants' use of deadly force was justified under the Fourth Amendment if a reasonable officer in Defendants' position would have had probable cause to believe that there was a threat of serious physical harm to themselves or to others."). As Scott (Scott v. Harris, 550 U.S. 372, 383 (2007)makes clear, however, the term encompasses a range of applications of force, some more certain to cause death than others. It includes force that is "likely" to cause serious injury or death, such as ramming, and also includes force that is nearly certain to cause death, such as a shot to the head. Scott strongly suggests that the reasonableness balancing must take into account that there is a spectrum of "deadly force," and that just because a situation justifies ramming does not mean it will justify shooting a suspect in the head.

13thjuror

11-14-09 | 09:26 am

Becoming


If you can't 'Be' who you are 'Becoming', then you will never 'Be' who you are! Mahatma Gandhi is credited with this principle, 'You must "be the change" you want to see in the world.' When next you are asked to describe yourself respond, Be Thought-Be Heart-Be Spoken-Be Gotten. The Memphites, 5,000 years ago, expressed this principle of change as "One Tongue - One Heart". In other words "Be" what you "Say".

Reginald F. Allard, Jr.

10-29-09 | 07:35 am

Expert Opinions


To be reasonably probable, a conclusion must be more likely than not. State v. Nunes, 800 A.2d 1160, 1175-76 (Conn. 2002). In other words, the opinion must be “probable” rather than merely “possible”. State v. Weinberg, 575 A.2d 1003 (Conn.), cert. denied, 498 U.S. 967 (1990).... expert testimony regarding causation based upon possibility or speculation is insufficient.... testimony that a certain thing is possible is no evidence at all...opinion as to what is possible is no more valid than the jury’s own speculations as to what is or is not possible.” A belief is "objectively reasonable" if "a reasonable person" in the defendant's position could have believed his/her perceptions from his/her at-scene perspective, given the particular subjective as well as objective factual circumstances. "More likely than not" is a "preponderance of evidence" guilt standard where 51% of the facts and circumstances are believed to be 'true'. A 'reasonable suspicion' is a "belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts" The Criminal guilt standard is 'beyond a reasonable doubt' which is greater than the 'more likely than not' civil guilt standard but short of guilt beyond all doubt.

13thjuror

10-26-09 | 12:32 pm

Obama-nomics


The economics of the Obama Administration is best described as: "Spend until you are Dead. The living will worry about the debt for you"!

13thjuror

10-22-09 | 06:45 am

0% Probable is Possible


"If an event is Possible - although extremely 'rare' with a likelihood near 0% probability, disproving this negative is also near 0% possible. In the world of 'possibilities' one can not 'disprove the negative' possibilities of events occurring. Thus everything is possible, just not likely."

13thjuror

10-21-09 | 10:47 am

2nd Amendment Back-Up


The Government has no constitutional duty to protect the 'individual' from 3rd party violence...To the Terrorist, each American tax payer is a Soft-Target...But for your constitutional and statutory authority to self-defense...and because we do not live in a police state...the 2nd Amendment is our individual protector...when shopping at the local Mall...remember 911, the terrorist has to be right only once...shout '911' but use your 2nd Amendment to protect yourself and your loved ones with you, or accept the American flag as your coffin cover.

13thjuror

09-29-09 | 07:19 am

Nones


I am a proud member of the 'Nones': "the irreligious, the unreligious, the anti-religious and the anti-clerical." The Nones aren't part of an organized movement and they don't adhere to a common set of beliefs. "Some believe in God; some do not," "Some may participate occasionally in religious rituals," the ..."Others never will." The only thing that interfers with 'faith' is 'religion'.

Reginald F. Allard, Jr.

09-17-09 | 06:05 am

General Intent


‘‘General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness.’’ State v. Charles, 78 Conn. App. 125, 131, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003).

Reginald F. Allard, Jr.

09-16-09 | 06:05 am

Anarchy


Mapp v. Ohio, 367 U.S.(1961)...The US Constitution...“gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.”.... The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. . . . Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

Reginald F. Allard, Jr.

09-05-09 | 06:09 am

First Amendment Lesson


West Virginia State Board of Education v. Barnette (No. 591) 47 F.Supp. 251, affirmed. ...we are dealing with a compulsion of students to declare a belief... Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men... If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. "

Reginald F. Allard, Jr.

08-16-09 | 10:34 am

Troublemaker


Plakas v. Drinski 19 F3d 1143 (7th Cir. 1994) There is no precedent in this Circuit or any other which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used...there may be state laws which require an officer to retreat but this would not impose a constitutional duty...If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable...

Reginald F. Allard, Jr.

08-13-09 | 05:29 am

Hindsight PC Review


In Walden v. Carmack, the Eighth Circuit stated, "A defendant need not show that there was only one reasonable conclusion ... on whether probable cause existed, but rather, a court should ask whether the ... officials acted reasonably under settled law in the circumstances then existing, not whether another reasonable, or more reasonable interpretation of the facts can be constructed years later." 156 F.3d 861 (8th Cir.1998). If there is a reasonable basis to conclude that probable cause existed, qualified immunity shields the officer from suit, and courts must take caution not to simply judge the officer's actions with the benefit of 20/20 hindsight. Tauke v. Stine, 120 F.3d 1363 (8th Cir.1997)...once the predicate facts have been established, for the purposes of qualified immunity there is no such thing as a "genuine issue of fact" as to whether an officer "should have known" that his conduct violated constitutional rights.... "Predicate facts" include only the relevant circumstances and the acts of the parties themselves, and not the conclusions of others about the reasonableness of those actions.... The objective reasonable person standard utilized in the qualified immunity analysis ignores the factual opinions of others because it is a legal inquiry, Siegert v. Gilley, 500 U.S. 226 (1991).

Reginald F. Allard, Jr.

08-12-09 | 03:50 am

Retrospective Probable Cause


Probable Cause to arrest requires more then 'some' reason to believe that a particular person committed or is committing a particular offense. The post arrest adequacy of the 'facts' which had led to an arrest is referred to as 'Retrospective Probable Cause'. This expo facto assessment requires that an officer's 'zeal and/or arbitrary abuse of authority be reviewed in order for the shield of qualified immunity not be flimsily asserted nor condoned. Government 'of the people' is designed for the protection 'of the people'. Freedom can demand 'no less a standard then Probable Cause and has since 1789.

Reginald F. Allard, Jr.

06-21-09 | 06:00 am

Deadly Force Spectrum


Cordova v. Aragon, 569 F.3d 1183 (10th Cir. 06/17/2009) As Scott makes clear, the term(Deadly Force") encompasses a range of applications of force, some more certain to cause death than others. It includes force that is "likely" to cause serious injury or death, such as ramming, and also includes force that is nearly certain to cause death, such as a shot to the head. Scott strongly suggests that the reasonableness balancing must take into account that there is a spectrum of "deadly force," and that just because a situation justifies ramming does not mean it will justify shooting a suspect in the head. While the use of force to seize a suspect in a manner that is nearly certain to cause death, such as shooting a suspect in the back of the head, may be unreasonable as applied to a "young, slight, and unarmed" burglary suspect fleeing on foot, Garner, 471 U.S. 11, the use of force only "likely" to cause serious injury or death to seize one who poses an "extreme danger to human life" in a high-speed police pursuit may be reasonable, Scott, 550 U.S. at 382-83. "Scott strongly suggests that the reasonableness balancing must take into account that there is a spectrum of 'deadly force,' and that just because a situation justifies ramming does not mean it will justify shooting a suspect in the head." Cordova v. Aragon, --- F.3d ----, 2009 U.S. App. LEXIS 13043, at *12 (10th Cir. June 17, 2009).

13thjuror

05-11-09 | 04:45 am

Eyes of an 'Officer'


United States v. Arvizu, 534 U.S. 266, 273 (2002); Alabama v. White, 496 U.S. 325, 330 (1990). “[T]he court must evaluate the totality of circumstances ‘through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.’” United States v. Colon, 250 F.3d 130, 134 (2d Cir. 2001) (quoting United States v. Bayless, 201 F.3d 16, 133 (2d Cir. 2000). The “totality of the circumstances” inquiry permits police officers to “make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.”

Reginald F. Allard, Jr.

04-27-09 | 05:20 am

Rational Inference


Because the only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our statutes, a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. What a person’s intention has been is very largely a matter of inference. No witness can be expected to come here and testify that he looked into another person’s mind and saw, therein, [that it] contained a certain intention.’’ When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent. . . . State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971).’Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct . . . . Whether such an inference should be drawn is properly a question for the jury to decide.

Reginald F. Allard, Jr.

04-25-09 | 05:12 am

Self-creation


When you fear 'possibilities' you will surely 'probably' fail. Possibilities fuel dreams. Start your engines!

Reginald F. Allard, Jr.

04-24-09 | 06:52 am

Be!


Be! “Dreams are born every day, if you pay attention. Lift up your dreams and hold them. This initial nourishment is necessary for your dreams to live. Dreaming is a ‘contact sport’. Make first contact! ” Be-Heart Be-Thought Be-Spoken Be-Gotten Think Well! Happy Creation! by Reginald F. Allard, Jr. May 23, 2008

Reginald F. Allard, Jr.

04-23-09 | 02:39 am

Rational Inference


“An inference must have some definite basis in the facts ... and the conclusion based on it must not be the result of speculation and conjecture.”

Reginald F. Allard, Jr.

04-22-09 | 08:31 am

Arizona v Gant


ARIZONA v. GANT. This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access.If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.There was no suggestion by the parties or amici that Chimel authorizes a vehicle search incident to arrest when there is no realistic possibility that an arrestee could access his vehicle.it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car...Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. We have never relied on stare decisis to justify the continuance of an unconstitutional police practice. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains....noting that the availability of protective measures “ensur[es] the nonexistence of circumstances in which the arrestee’s ‘control’ of the car is in doubt”. Because a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding. Law enforcement officers face a risk of being shot whenever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car. I observed in Thornton that the government had failed to provide a single instance in which a formerly restrained arrestee escaped to retrieve a weapon from his own vehicle,... Where no arrest is made, we have held that officers may search the car if they reasonably believe “the suspect is dangerous and … may gain immediate control of weapons.” Michigan v. Long, 463 U. S. 1032, 1049 (1983) . In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. The rule of Michigan v. Long is not at issue here....the Belton Court concluded that “ ‘[a] single familiar standard’ ” was “ ‘essential to guide police officers’ ” who make roadside arrests. 453 U. S., at 458 (quoting Dunaway v. New York, 442 U. S. 200, 213–214 (1979) ). ...Thornton held that “arresting officers may always search an arrestee’s vehicle in order to protect themselves from hidden weapons”). This “bright-line rule” has now been interred."

Reginald F. Allard, Jr.

04-22-09 | 08:14 am

Conjunction


Just in case, any one besides myself is interested, today there is a Moon & Venus & Jupiter Planetary Conjunction.

Reginald F. Allard, Jr.

04-15-09 | 04:20 pm

Fear of Possibility


What is reasonably 'possible' is neither 'likely' nor 'probable' unless you allow for speculation. The following are direct excerpts from various case law cites. "The evidence... collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. In a close case . . . the balance ought to be struck on the side of the freedom of the citizen from governmental intrusion. To conclude otherwise would be to elevate society’s interest in apprehending offenders above the right of citizens to be free from unreasonable stops. State v. Oquendo, 223 Conn. 635, 657, 613 A.2d 1300 (1992).Tarro v. Commissioner of Motor Vehicles, 279 Conn.280, 292 n.17, 901 A.2d 1186 (2006).Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our statutes, a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. What a person’s intention has been is very largely a matter of inference. No witness can be expected to come here and testify that he looked into another person’s mind and saw, therein, [that it] contained a certain intention. When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite 'general intent' for culpability. When the elements of a crime include a defendant’s intent to achieve some result 'additional to the act', the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent. . . . State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971)....a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct . . . . Whether such an inference should be drawn is properly a question for the jury to decide. Because the only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. The line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment... Discretion cannot be exercised in a manner that is arbitrary, capricious or otherwise contrary to law."

Reginald F. Allard, Jr.

04-14-09 | 09:52 am

Clear & Convincing Proof


[C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." Top of the Town, LLC v. Somers Sportsmen's Assn., Inc., 69 Conn. App. 839, 844, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002); see also Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989); Hurlburt v. Bussemey, supra, 101 Conn. 412; Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 780, 890 A.2d 645 (2006); LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 672 n.3, 525 A.2d 140 (1987).

Reginald F. Allard, Jr.

04-10-09 | 03:07 am

Wilful Misconduct


'Wilful misconduct' is a purposeful, intentional, and knowing act of such character performed with reckless disregard for its result."

Reginald F. Allard, Jr.

04-09-09 | 07:56 am

Sole Proximate Cause


The ultimate contradiction of proximate cause-effect is the belief that because a rooster crows in the morning, the sun rises. Put in another way, because a 'butterfly' flaps its' wings in Brazil, a Tornado is created in Kansas. For proximate Cause, a trier of fact must be able to trace the resultant injury to a proximate cause set in motion by the Defendant/Plaintiff. Remember, in the world of 'possiblilities' everything is 100% 'Possible' But this possibility is pure speculation and contrary to the true test of sole proximate cause, which is an assessment of cause-effect by determining whether it was "more likely then not" that event 'A' caused result 'B'.

Reginald F. Allard, Jr.

04-08-09 | 08:20 am

Androgynous Womb


The female womb is androgynous. Both a male child and a female child are born from this womb. The male and female within each of us is in constant polarity shift. No human child is 'purely male' or 'purely female'.

Reginald F. Allard, Jr.

03-14-09 | 08:11 am

Fleetwood Mac Concert


I am on my way to the Fleetwood Mac Concert at the Mohegan Casino in Connecticut. This is the 3rd Concert I attended in my life. The 1st was at Woodstock in 1969, the 2nd was a Neil Diamond Concert in 1978. Live the memories of the heart...Happy Creation!"

Reginald F. Allard, Jr.

03-02-09 | 07:48 am

Socialism Birth Announcement


The boundary between Democracy and Socialism is Discrimination. The more discrimination believed to exist, the greater the clamor for socialism as a remedy.

Reginald F. Allard, Jr.

02-03-09 | 04:31 am

Step Up!


An Everyday Job - Step Up! Step Back! Step Out! By Reginald F. Allard, Jr. Police officers encounter their own mortality each day they perform their official duties. Whether it is their first duty work shift or their last duty tour, police officers face extreme trauma and their own mortality. Physical and psychological trauma, that not only comes from accidental injuries, but also trauma from a citizen’s intentional, reckless, and/or negligent dangerous active aggressive resistance to their lawful Fourth Amendment seizure authority. Although the ‘Officer Safety Talisman’ is not a magic wand that is to be waved over every contextual factual circumstance, police officers are being killed and injured just for doing their everyday job. As officers simultaneously, think, feel, and act objectively, the overseer watchdog (i.e., the 10,000 lawyers within the State of Connecticut) is prepared to claim abuse of discretion in the manner in which the crisis was erroneously managed. The rules of law enforcement practices and procedures require an officer to plan for the predictably foreseeable in order to preclude an ‘imminent’ future ‘immediately’. This is because the post incident must withstand several years of hindsight litigation scrutiny. The at-scene factual findings constantly shift, liken to waves upon a rocky beach. Truth becomes mired in perceptual beliefs that are inaccurate but believed to be ‘true’. Initial factual determinations derived from definite and firm convictions give way to the new ‘fact’ that a mistake has been made. Because it is the function of the ‘Monday-Morning’ fact finder to reject or accept certain evidence, and to believe or disbelieve the alleged ‘truths’, an officer’s at-scene truths become negligent, reckless or intentional lies. Terms such as proximate cause, necessary, reasonable, objective and force continuum are used as ‘black-letter law’ to criticize the ‘living law’ of the crisis moment. Human traits are replaced with concepts such as ‘training and experience’ and ‘reasonable prudent officer’. The result in only 1% of the alleged excessive force encounters is a finding of proximate cause liability with compensatory and/or punitive damages assessed against the officer(s) and the police agency. Proximate cause liability is that which a prudent officer in the at-scene officer’s position would have decided in contradiction to what the officers actually did. Liability is likened to that of a minefield where upon without a roadmap, an officer’s honest mistaken beliefs with hindsight tragic misstep consequence is the responsibility not of those who placed the mines but rather upon the officer who stepped on the liability mine. Watch your step! But, by all reasonable and necessary means, step up, step back, or step out of the way! Policemen, unlike private citizens, are constantly faced with dangerous situations in which they risk possible injury. Mindful that their duties necessarily entail exposure to dangerous, and even deadly, situations, the government cannot be held liable merely for exposing a law enforcement official to a danger that the officer knowingly and voluntarily assumed as part of his or her duties. Police officers enter into their inherently hazardous job voluntarily and fully aware of the substantial risks of harm faced on a daily basis. However, this does not translate into a standard that at best tolerates and at worst encourages wanton, reckless, or criminal behavior toward the safety of our law enforcement officers. "

Reginald F. Allard, Jr.

02-03-09 | 04:12 am

Need to Know!


“Transparency, accessibility, accountability – three basic concepts that the public has come to expect, and indeed, should demand, of the various branches of government that shape our society.”

Reginald F. Allard, Jr.

01-21-09 | 05:18 am

I am


There is but one thing which I am not, and that is, which I am not. Everything else is achievable!

Reginald F. Allard, Jr.

01-16-09 | 08:31 am

Troublemaker


Plakas v. Drinski 19 F3d 1143 (7th Cir. 1994) There is no precedent in this Circuit or any other which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used...there may be state laws which require an officer to retreat but this would not impose a constitutional duty...If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable...

Reginald F. Allard, Jr.

01-01-09 | 08:50 am

Convergence


Your 'beliefs' are the Electro-magnetic pulses which cause emitted cosmic waves to create serendipitous convergence of planned syncronicity. Create 'foresight', expect what you believe! Expectation is the Magic that Causes Change! Happy Creation!

Reginald F. Allard, Jr.

11-12-08 | 04:34 am

Fair Justice


The public demands impartial justice for the guilty as much as for the innocent. Justice demands no victim and asks no conviction through the aid of passion, prejudice, bias or resentment.

Reginald F. Allard, Jr.

10-18-08 | 07:08 am

God Particle


Quantum Physics Science confirms that there is a 'god particle' which dispersed the four combined forces of nature(strong force, weak force, electro-magnetic force, and gravity) which then caused the universe to 'inflate'as time began at the 'big bang' moment of creation. In other words, what was once unified was then split apart at speeds greater then the 'speed of light'(E=MC2). Within each of us is this 'god particle' spark. You can use this particle to re-create 'inflation' because each of us is a 'god creator'."

Reginald F. Allard, Jr.

10-14-08 | 10:31 am

Yesterday


If you look for answers for tomorrow in yesterday's history, you are bound to repeat today's mistakes. Make a 'new history' by living this 'perfect moment'!"

Reginald F. Allard, jr.

10-07-08 | 01:26 am

Re-Purposed Slef


The "Re-Purposed Slef" is an euphemism to bring into clarity the cloudy vagueness of our inegmatic archetypical origins. Clarification to follow...

Reginald F. Allard, Jr.

09-14-08 | 08:36 am

The Voice of Creation


The Universe does NOT have a 'Voice'. The Universe is 'Shaped' into Existance by the 'god-creator' Voice within. This 'Voice' creates the Universe in direct response to the spoken vibration of your inner 'Voice'.

Reginald F. Allard, Jr.

08-30-08 | 05:05 am

Samurai Heart


Sempai Ryan Allard, this day you have fought a battle likened to that on the day of the ancient Battle of Thermopylae - Your warrior skills have been demonstrated to show your warrior's heart. Your Loyalty to the code of honor has been tested. Your honor has been tested to demonstrate that you are the Master of your pain. The creator of your fate. You possess the tiger's heart with a child's smile at its' core. When only the few are left to defend the warrior code, there, you will be standing and they will say, he lived a life filled with love and had a death, the ages will remember. Ryan, I present this Musashi Katana sword of protection as a symbol of my pride in you as a man and as a warrior. With this rod of iron may you protect love, loyalty, and honor from being devour by the Red Dragon. I Love You, Dad August 30, 2008

Reginald Allard, Jr.

08-22-08 | 03:10 am

Creationism


The Heart can only Echo what the Mind Creates. The Universe can only Manifest what the Heart Echoes. Think Well!

Reginald Allard, Jr.

07-25-08 | 02:46 am

Prediction


"The Best Way to Predict the Future is to Create it!" This quote was reportedly written first by Abraham Lincoln. Others have attempted to re-create the future by claiming that they originated this phrase. But then again, future is what present creates. A lie believed is a truth.

Reginald Allard, Jr.

07-05-08 | 05:04 am

It Can Happen


Murphy's law states that "if it can happen, it will happen". The Law of Large Numbers states that " if an event is given enough opportunities to occur, sooner or later it will occur". Parsed between a 'future that is 'remembered' and a 'meaningless coincident happenstance' is 'Belief'. Be careful what you believe, it will happen not only probably but also is highly certain to happen.

Reginald F. Allard, Jr.

06-23-08 | 05:40 am

Snapshots of a Life's Pathway.


Where you are is "IAM" both probably and/or certainly." When you are looking for 'something', something 'finds you'!" There is no doubt, chance occurs at a pre-determined probable outcome.

Reginald F. Allard, Jr.

06-14-08 | 06:05 am

Quintessence


Is there a "Quintessence Fluid" contained within the human body? Does this fluid possess a gravitational repulsive force - a fifth element capable of causing gravitational 'lift'? Does this "dark energy" which composes 70% of our known universe, cause self-attraction expectation of a 'desired matter'? Can you 'think' matter into 'being'? The answer to each of these questions is YES! Science has proven that 'nothing does exist'." Dark Energy has a "bounded Shape" with un-clustered negative particles. You can "make something out of nothing".

Reginald F. Allard, Jr.

06-13-08 | 04:11 am

Dark Does Matter


Science has taken measure of the Universe we live within. Our Milky Way Galaxy has a star that is 13.5 billion years old. We are at least as old as this 'star dust'. Dark Energy consist of 70% of the 'space' in this Universe. Dark matter is measured at consisting of 25% our known universe. The remaining 5% is the 'Universe" that we "see". The point is that "empty space is NOT nothing. 'Dark Energy' has been named by the ancient Greeks "quintessence"- the fifth Element. Zero point gravitation is acheived by transfering mass. Once you transfer the 'dark energy mass' and the 'dark matter mass', empty space suddenly "takes Shape'. The "Shape' of your Universe awaits the "hand" of the god-self within. Go ahead, change your world today!Dare to cause the 'Butterfly Effect" and be the sculpter of your own universe.

Reginald F. Allard, Jr.

06-11-08 | 04:41 am

7 Laws of Nature


1st Law of Creation - Self-Awareness (First Bite of the Apple) 2nd Law of Creation - Thinking is Being. 3rd Law of Creation - Change is Constant. 4th Law of Creation - Time exists is a Continuous Linear Expansion. 5th Law of Creation - Form Creates Function. 6th Law of Creation - Space Creates Shape. 7th Law of Creation - Life at its' Cellular Microcosmic Fusion component is the Power of the Universe Within."

Reginald F. Allard, Jr.

06-08-08 | 05:35 am

Art of Creation


The 60,000 thoughts we have each day become the primodial resevoir from which our dreams are created. These thoughts are the clay of creation. May this day bring serendipitous synchronicity. Write your 'history' on the back of a napkin today. Tomorrow will become your "Art". "Thinking is Being!"

Reginald F. Allard, Jr.

06-05-08 | 07:41 am

Religion is NOT faith


The only thing that interferes with faith IS man-made religion. The 'god-self' within does not need man-made symbols for the expression of true faith. The only thing a person should DO in the name of a God is to be the expression of the 'god-self' within. Those who kill in the name of a living or a dead Prophet, kill only in the name of the person who is extolling the killing of the innocent lives in the name of the religion. Whether that religion be a jihad or crusade religion, does not make a difference. The defense of a religion and its' honor does NOT lead to either a martyrdom sanctuary or perpetual salvation. It leads to death."

Reginald F. Allard, Jr.

05-23-08 | 05:15 am

07:15:00


“Dreams are born every day, if you pay attention. Lift up your dreams and hold them. This initial 'touch' nourishment is essential for your dreams to live, thrive and be manifested. Dreaming is an ‘contact sport’” "Be-Heart. Be-Thought. Be-Spoken. Be-Gotten."

Reginald F. Allard, Jr.

05-23-08 | 04:30 am

Time & Space


"The two dimensions that give full dimension to a relationship are TIME & SPACE. That which binds together these two dimensions is LOVE. LOVE is the binding power of the universe. Time & Space can not be separated. They are truly ONE dimension. Although apart in space,we are together in TIME."

Reginald F. Allard, Jr.

05-23-08 | 03:41 am

Perfection


"Life Is Perfect Imperfection with Hindsight disguised as Foresight..."

Reginald F. Allard, Jr.

05-22-08 | 10:35 am

Be


Be-Heart. Be-Thought. Be-Spoken. Be-Gotten!

Reginald F. Allard, Jr.

04-04-08 | 04:35 am

Think Well!


The heart can only echo what the mind creates. The universe can only manifest what the heart echoes. The heart is the voice of the universe. Each Moment is the Beginning of a New History...Past events can only exist in the present experience. Future events can only be experienced in the present. The present is the trinity of experience...

Reginald F. Allard, Jr.

04-02-08 | 06:45 am

One Heart - One Voice - One Hand


The below is an excerpt from the text listed. This information is 5,000 years old but is as current as the blood rushing through our hearts today. (Ancient Egyptian Literature – The Old and Middle Kingdoms - Miriam Lichtheim Volume I - University of California Press 1973-2006. (page 54)) The Memphite Theology is written upon the British Museum No. 498 (Shabaka Stone)which was commanded to be transcribed by King Shabaka of the Twenty-fifth Dynasty( ca 710 B.C).….Line 53… "Heart and tongue rule over all the limbs in accordance with the teaching that the heart is in every body and the tongue is in every mouth…thinking whatever it wishes….commanding whatever it wishes…Sight, hearing, breathing report to the heart and make every understanding come forth….the tongue repeats what the heart desires….For every word….came through what the heart devised and the tongue commanded…" The 'teaching' from this excerpt is that with the mind focus of One Heart – One Tongue –One Hand – the "God Creator" in each of us is a "living God". Listen to you’re your heart, give voice to the message from your heart, and ‘act’ as if the message is already manifested. This is the secret of creation. Think Well! The Future Is What Present Does!...Each moment is the beginning of a new history…. "The beginning of anything is the beginning of everything".

Reginald F. Allard, Jr.

03-30-08 | 05:06 am

The History of Moments


Happenstance does not exist. Life events occur because of the confluence of planned syncronicities. This convergence of expectation is the proximate cause of the 'awareness singularity'. Awareness of the moment can only exist in the future which then results in a multiplicity of 'histories'. Each of these 'histories' is created in the future by way of the moment's awareness which then created an alternate past. The result is that You become what you are thinking because you have changed the present to alter the past. In this moment, you are the 'mind of the God-Creator'. The past becomes the present existing in the future. This focus of self-awareness results in a self-perpetuating expectatation loop. In the 'world of possibilities', "nothing creates everything". Expect 'everything' of your God-self and nothing is 'impossible' because thought 'matters'. As you 'think' so does the atomic structure of the universe 'change'. You are the 'universe'. Be creative today."""

Reginald F. Allard, Jr.

03-25-08 | 02:13 am

Mind Threasure


"For where the mind is, there is the treasure". Pure Thought is Pure Energy. The beginning of anything is the beginning of everything. Each moment is a new moment of creation. Each of us possess the "mind of the creator" "As within - Without" If you think it....it is!"

Reggie

03-03-08 | 04:05 am

E=MC2


E=MC2...Expectation is the Magic that Causes Change! Thinking does 'matter' because thought IS 'matter'.

Reginald F. Allard, Jr.

01-27-08 | 01:34 am

Eye of the Universe


As you may have noticed, I have changed the background star image. This image is referred to as the "Eye of the Universe" and was taken by the VLT( Very large Telescope) in Paranal Chile. Note how the "Thin Blue Line" encompasses this galaxy which acts as the boundary force and protection for all that "matters" within." Join us as we "Connect the World, One Dot at a Time".

Reginald F. Allard, Jr.

11-30--1 | 12:00 am

Reasonable Belief Training


"...any “objective” test implies the existence of a standard of conduct, and, where the standard is not defined by the generic--a reasonable person--but rather by the specific--a reasonable officer--it is more likely that [federal rule of evidence] 702’s line between common and specialized knowledge has been crossed." Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993) (analyzing plaintiff’s claim that court improperly excluded [ Conn. App. Page 200 ] expert testimony concerning defendant’s use of nondeadly force in effecting arrest). In Kopf, the United States Court of Appeals for the Fourth Circuit stated that "where force is reduced to its most primitive form--the bare hands--expert testimony might not be helpful. Add handcuffs, a gun, a slapjack, Mace, or some other tool, and the jury may start to ask itself: what is Mace? what is an officer’s training on using a gun? how much damage can a slapjack do? Answering these questions may often be assisted by expert testimony." Id. at 379. We find that reasoning persuasive in the case at hand…A person’s ‘belief’, like ‘intent’, has always been determined by a jury by listening to the testimony of the defendant . . . and by evaluating the circumstances surrounding the incident as presented in other testimony and exhibits and, therefrom, determine what his belief or intent was….The exclusion of all of Allard’s testimony and all testimony concerning the use of deadly force in self-defense by a police officer constituted an abuse of discretion…The defendant’s state of mind in general, or the defendant’s beliefs at the time of the incident are, indeed, the subject of the jury’s inquiry. The jury was entitled to hear the relevant evidence offered to the extent that it would have assisted the jury in determining the issues. See State v. Billie, supra, 250 Conn. at 180. The issues concerned the defendant’s state of mind, e.g., whether his belief, was (1) honest and (2) reasonable according to the test previously discussed.APPELLATE COURT OF CONNECTICUT STATE OF CONNECTICUT v. SCOTT SMITH (AC 21991) 73 Conn. App. 173;807 A.2d 500; October 22, 2002" "

13thjuror

 

 

 

 

 

 

 

 

 

 

 

 

 


 
© 2006 http://www.13thjuror.com | No part of this website and its content may be reproduced. Designated trademarks and brands are the property of their respective owners