Latest Entries »

157113241.BeCtINyg

Unknown orange/red glow over Pacific Ocean – August 24, 2014

Last night over the Pacific Ocean, somewhere South of the Russian peninsula Kamchatka I experienced the creepiest thing so far in my flying career.

After about 5 hours in flight we left Japan long time behind us and were cruising at a comfortable 34.000ft with about 4,5 hours to go towards Alaska.

We heard via the radio about earthquakes in Iceland, Chile and San Francisco, and since there were a few volcanos on our route that might or might not be going off during our flight, we double checked with dispatch if there was any new activity on our route after we departed from Hongkong.

Then, very far in the distance ahead of us, just over the horizon an intense lightflash shot up from the ground. It looked like a lightning bolt, but way more intense and directed vertically up in the air. I have never seen anything like this, and there were no flashes before or after this single explosion of light.

Since there were no thunderstorms on our route or weather-radar, we kept a close lookout for possible storms that might be hiding from our radar and might cause some problems later on.

I decided to try and take some pictures of the night sky and the strange green glow that was all over the Northern Hemisphere. I think it was sort of a Northern Lights but it was much more dispersed, never seen anything like this before either.

About 20 minutes later in flight I noticed a deep red/orange glow appearing ahead of us, and this was a bit strange since there was supposed to be nothing but endless ocean below us for hundreds of miles around us. A distant city or group of typical Asian squid-fishing-boats would not make sense in this area, apart from the fact that the lights we saw were much larger in size and glowed red/orange, instead of the normal yellow and white that cities or ships would produce.

The closer we got, the more intense the glow became, illuminating the clouds and sky below us in a scary orange glow. In a part of the world where there was supposed to be nothing but water.

The only cause of this red glow that we could think of, was the explosion of a huge volcano just underneath the surface of the ocean, about 30 minutes before we overflew that exact position.

Since the nearest possible airport was at least 2 hours flying away, and the idea of flying into a highly dangerous and invisible ash-plume in the middle of the night over the vast Pacific Ocean we felt not exactly happy. Fortunately we did not encounter anything like this, but together with the very creepy unexplainable deep red/orange glow from the ocean’s surface, we felt everything but comfortable. There was also no other traffic near our position or on the same routing to confirm anything of what we saw or confirm any type of ash clouds encountered.

We reported our observations to Air Traffic Control and an investigation into what happened in this remote region of the ocean is now started.

Two photos included, hardly edited except for watermark and resize. Note that photos are taken with extremely high ISO (sensor sensitivity) so quality might be a bit poor. Also an overview of our route + marking of the location is included.

Now I’m just hoping that if a new island has been formed there, at least it can be named after me as the official discoverer. :)

That would be pretty cool!

Flying Dutchman

 

157120274.fK0Js2Or

The 1492 light sighting was a sighting of unknown light during the first voyage of Christopher Columbus on October 11, 1492, by some crew members of Santa Maria, Pinta and possibly Niña shortly before the landing on Guanahani. The light was reported in Columbus’ journal, Ferdinand ColumbusVita del Ammiraglio (The Life of the Admiral), the proceedings of the Pleitos Colombinos (the long lawsuit involving the heirs of Columbus) and some other sources.

Columbus described the light as “a small wax candle that rose and lifted up, which to few seemed to be an indication of land”. He received the royal reward for the sighting. His son Ferdinand also characterized it as a candle, that went up and down.

Bartolomé de las Casas noted the event in his abstract of Columbus’s log: “A sailor named Rodrigo de Triana saw this land first, although the Admiral, at the tenth hour of the night, while he was on the sterncastle saw a light, although it was something so faint that he did not wish to affirm that it was land. But he called Pero Gutierrez, the steward of the king’s dais, and told him that there seemed to be a light, and for him to look: and thus he did and saw it”.

It was calculated that the twelve leagues, that the crew ran since 10 p.m., with the two leagues distance off the land, essentially correspond to the distance and location of Watling’s Island from Guanahani. As such, it was presumed that the light was on Watling’s Island, which was passed by Columbus. Judging by the speed of the ships, provided in naval journal, L. T. Gould supposed that the light “must have been some 35 miles or so eastward of the landfall, and well to windward of it”

157113242.LtPxAEBK

An early explanation was offered by Bartolomé de las Casas, who wrote: “I feel about this is that the Indians at night throughout these islands, as they are temperate without any cold, go out or used to go out from their straw houses that they call bohios at night to comply with their natural necessities and take in hand a firebrand, or small torch, or a chink of pine or of another very dry and resinous wood which burns like a torch, when it is dark night, and with which they guide themselves back again, and in the manner could be seen the light which Christopher Columbus and the others saw the light three or four times”.

This version was supported by Morison, despite the fact that it tended to undermine his preferred landfall at Watlings Island (San Salvador). Others have advanced the hypothesis that the light might have been an Indian fishing in a canoe at night, but the very high winds imply that would have been quite unlikely.

These problems have led to the conclusion by some that the light was not on Guanahani, the island of the first landfall, but on another, more easterly island bypassed in the night.

It has been proposed that the light was caused by bioluminescent protozoa on the rocks of Mouchoir Bank. However this theory is rendered improbable due to the “small wax candle” nature of the light, which suggests a point source. A single female Bermuda fireworm Odontosyllis enopla may have separate short periods of excessive and minor brilliance, perhaps accounting for a candle-like display.

But later research has shown that Odontosyllis bioluminescent activity is confined to a few days past the full moon, which would rule out that explanation, as the Moon was near first quarter that night.

Source:  Wiki

;)

blue

Per wiki, the presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat (the burden of proof is on he who declares, not on he who denies), is the principle that one is considered innocent until proven guilty. In the US, presumption of innocence is a legal right of the accused in a criminal trial. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond reasonable doubt. If reasonable doubt remains, the accused is to be acquitted.

In sources from common law jurisdictions, the expression appears in an extended version, in its original form and then in a shortened form (and in each case the translation provided varies). As extended, it is: Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit—”The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.” As found in its original form, it is (as above): Ei incumbit probatio qui dicit, non qui negat—”The proof lies upon the one who affirms, not the one who denies.”  Then, shortened from the original, it is: Ei incumbit probatio qui—”the onus of proving a fact rests upon the man who”.

00-Darren-Wilson-Supporters-Ferguson-Poster-with-signatures

“Presumption of innocence” serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt (or some other level of proof depending on the criminal justice system) and that the accused bears no burden of proof. This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840). Garrow insisted that accusers be robustly tested in court. An objective observer in the position of the juror must reasonably conclude that the defendant almost certainly committed the crime.

The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Jean Lemoine to favor the accused based on the legal inference that most people are not criminals. It is literally considered favorable evidence for the accused that automatically attaches at trial. It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion. To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:

  1. With respect to the critical facts of the case – whether the crime charged was committed and whether the defendant was the person who committed the crime – the state has the entire burden of proof.
  2. With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against them.
  3. The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on evidence presented during the trial.

This duty on the prosecution was famously referred to as the “golden thread” in the criminal law by Lord Sankey LC in Woolmington v DPP [1935] AC 462:

“Throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…”

92515160-27ee-11e4-9be1-79df940991df_officerdarrenwilsonphoto

U.S. Supreme Court

TENNESSEE v. GARNER, 471 U.S. 1 (1985)

471 U.S. 1 TENNESSEE v. GARNER ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 83-1035.

Argued October 30, 1984
Decided March 27, 1985 *

A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, “the officer may use all the necessary means to effect the arrest.” Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner’s son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being “reasonably sure” the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. 1983 for asserted violations of his son’s constitutional rights. The District Court held that the statute and the officer’s actions were constitutional. The Court of Appeals reversed.

Held:

The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and 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. Pp. 7-22. 471 U.S. 1, 2]  

    (a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect’s rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.
    (b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common-law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common-law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common-law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.
    (c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect – young, slight, and unarmed – posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.

710 F.2d 240, affirmed and remanded.

WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. O’CONNOR, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 22.

[ Footnote * ] Together with No. 83-1070, Memphis Police Department et al. v. Garner et al., on certiorari to the same court.

Henry L. Klein argued the cause for petitioners in No. 83-1070. With him on the briefs were Clifford D. Pierce, Jr., Charles V. Holmes, and Paul F. Goodman. W. J. Michael Cody, Attorney General of Tennessee, argued the cause for appellant in No. 83-1035. With him on the briefs were William M. Leech, Jr., former Attorney General, and Jerry L. Smith, Assistant Attorney General. 471 U.S. 1, 3]  

Steven L. Winter argued the cause for appellee-respondent Garner. With him on the brief was Walter L. Bailey, Jr.Fn

Fn 471 U.S. 1, 3]   Briefs of amici curiae urging affirmance were filed for the Florida Chapter of the National Bar Association by Deitra Micks; and for the Police Foundation et al. by William Josephson, Robert Kasanof, Philip Lacovara, and Margaret Bush Wilson.

JUSTICE WHITE delivered the opinion of the Court.

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and 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.

blind-lady-justice

Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.

1408124005000-AP-Police-Shooting-Missouri

A police officer may arrest a person if he has probable cause to believe that person committed a crime. E. g., United States v. Watson, 423 U.S. 411 (1976). Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of 471 U.S. 1, 8]   the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983); see Delaware v. Prouse, 440 U.S. 648, 654 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976). We have described “the balancing of competing interests” as “the key principle of the Fourth Amendment.” Michigan v. Summers, 452 U.S. 692, 700 , n. 12 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 536 -537 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U.S. 891, 895 (1975); Terry v. Ohio, 392 U.S. 1, 28 -29 (1968).

Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not “carefully tailored to its underlying justification,” Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 470 U.S. 753 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U.S. 721 (1969); Hayes v. Florida, 470 U.S. 811 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U.S. 291 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U.S. 23 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U.S. 757 (1966). In each of these cases, the question was whether 471 U.S. 1, 9]   the totality of the circumstances justified a particular sort of search or seizure.

22B463D4-FF34-4EBF-9E60-9A3F2E4215E7_mw1024_s_n

The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement. 8 It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly 471 U.S. 1, 10]   force, or at least the meaningful threat thereof. “Being able to arrest such individuals is a condition precedent to the state’s entire system of law enforcement.” Brief for Petitioners 14.

Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, at 659. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, 9 the presently available evidence does not support this thesis. 10 The fact is that a majority of police departments 471 U.S. 1, 11]   in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N. W. 2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect’s interest in his own life.

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where 471 U.S. 1, 12]   feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale’s posthumously published Pleas of the Crown:

    “[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony.” 2 M. Hale, Historia Placitorum Coronae 85 (1736).

See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E. g., Holloway v. Moser, 193 N.C. 185, 136 S. E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N. W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim. L. Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874). 471 U.S. 1, 13]  

The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be “reasonable.” It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e. g., United States v. Watson, 423 U.S. 411, 418 -419 (1976); Gerstein v. Pugh, 420 U.S. 103, 111 , 114 (1975); Carroll v. United States, 267 U.S. 132, 149 -153 (1925). On the other hand, it “has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment’s passage.” Payton v. New York, 445 U.S. 573, 591 , n. 33 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.

CVS_TNY_09_01_14RGB2-690-942

It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death. 11 “Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or 471 U.S. 1, 14]   fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected.” American Law Institute, Model Penal Code 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e. g., Schumann v. McGinn, 307 Minn., at 458, 240 N. W. 2d, at 533; Holloway v. Moser, supra, at 187, 136 S. E., at 376 (1927).

Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e. g., Enmund v. Florida, 458 U.S. 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977). And while in earlier times “the gulf between the felonies and the minor offences was broad and deep,” 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, at 158, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich. L. Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a “felon” is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies. 12

There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety 471 U.S. 1, 15]   of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning – and harsher consequences – now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum. L. Rev. 701, 741 (1937). 13

One other aspect of the common-law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S. E., at 376; State v. Smith, 127 Iowa, at 535, 103 N. W., at 945. See generally Annot., 83 A. L. R. 3d 238 (1978).

In short, though the common-law pedigree of Tennessee’s rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.

453677740-1024x632

In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to prevailing [471 U.S. 1, 16]   rules in individual jurisdictions. See, e. g., United States v. Watson, 423 U.S., at 421 -422. The rules in the States are varied. See generally Comment, 18 Ga. L. Rev. 137, 140-144 (1983). Some 19 States have codified the common-law rule, 14 though in two of these the courts have significantly limited the statute. 15 Four States, though without a relevant statute, apparently retain the common-law rule. 16 Two States have adopted the Model Penal Code’s 471 U.S. 1, 17]   provision verbatim. 17 Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested. 18 Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies. 19 The remaining States either have no relevant statute or case law, or have positions that are unclear. 20  471 U.S. 1, 18]  

It cannot be said that there is a constant or overwhelming trend away from the common-law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common-law rule. 21 Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.

This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id., at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where “the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury.” Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a 471 U.S. 1, 19]   felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n. 19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.

enhanced-11504-1408722670-1

Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing “unreasonable” if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici note that “[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies.” Id., at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra, at 10-11, and n. 10. 471 U.S. 1, 20]  

Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect’s dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e. g., Terry v. Ohio, 392 U.S., at 20 , 27. Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see nn. 15, 17-19, supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers’ split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.

police-shooting-missouri

The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner’s apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id., at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.

In reversing, the Court of Appeals accepted the District Court’s factual conclusions and held that “the facts, as found, did not justify the use of deadly force.” 710 F.2d, at 246. 471 U.S. 1, 21]   We agree. Officer Hymon could not reasonably have believed that Garner – young, slight, and unarmed – posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that “[t]he facts of this case did not indicate to Officer Hymon that Garner was `nondangerous.'” App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.

The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post, at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a “property” rather than a “violent” crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984). 22 Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277, 296 -297, and nn. 22-23 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, Household 471 U.S. 1, 22]   Burglary 4 (1985). 23 See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).

We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. 2403(b) and is not subject to liability. The possible liability of the remaining defendants – the Police Department and the city of Memphis – hinges on Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

      So ordered.

o5z6uo

[ Footnote 14 ] Ala. Code 13A-3-27 (1982); Ark. Stat. Ann. 41-510 (1977); Cal. Penal Code Ann. 196 (West 1970); Conn. Gen. Stat. 53a-22 (1972); Fla. Stat. 776.05 (1983); Idaho Code 19-610 (1979); Ind. Code 35-41-3-3 (1982); Kan. Stat. Ann. 21-3215 (1981); Miss. Code Ann. 97-3-15(d) (Supp. 1984); Mo. Rev. Stat. 563.046 (1979); Nev. Rev. Stat. 200.140 (1983); N. M. Stat. Ann. 30-2-6 (1984); Okla. Stat., Tit. 21, 732 (1981); R. I. Gen. Laws 12-7-9 (1981); S. D. Codified Laws 22-16-32, 22-16-33 (1979); Tenn. Code Ann. 40-7-108 (1982); Wash. Rev. Code 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if “necessary.” Ore. Rev. Stat. 161.239 (1983). Wisconsin’s statute is ambiguous, but should probably be added to this list. Wis. Stat. 939.45(4) (1981-1982) (officer may use force necessary for “a reasonable accomplishment of a lawful arrest”). But see Clark v. Ziedonis, 368 F. Supp. 544 (ED Wis. 1973), aff’d on other grounds, 513 F.2d 79 (CA7 1975).

Screenshot-2014-08-23-12.38.28

Related Links:

Milwaukee Sheriff David Clarke: Eric Holder Needs to Apologize to Cops

Eric the arsonist: Holder fans Ferguson flames

The Huffington Post, MSNBC’s Sharpton Lead High-Tech Lynching In Ferguson

Blue porch lights, Darren Wilson T-shirts part of growing support for Ferguson officer

 DARREN WILSON SUPPORTERS Bash Mainstream Media in First Public Statement

Frustrated WaPo Sics NINE REPORTERS on Darren Wilson – Finds Nothing

Support Officer Darren Wilson (Go Fund Me)

BlueSupport

 

My porch light is turned on…

The Real JV Team

obama-isis-golf-cartoon

“This operation, by the way, was a flawless operation,” “But the hostages were not there.”

Martin+Dempsey+Defense+Secretary+Hagel+Joint+hXXlpISLqJFl

Another triumph for the administration. Just add it to the list that includes defeating Al Qaeda and establishing a peaceful and democratic gov’t in Libya.  Our troops deserve better leadership. Hagel is an embarrASSment. He can barely string a sentence together. He along with Dempsey..what a team…

B-2-MOP

Rare image of a B-2 stealth bomber and its Massive Ordnance Penetrator bunker buster bomb

;)

FakeObamaCareWebsite_zps0b3f9933

https://data.healthcare.gov/dataset/QHP-Individual-Medical-Landscape/ba45-xusy

No Password Required.

You may also download directly from the website.

It is all there folks – Simply Click on above link.

Instructions and Notes:
1)      Overview of QHP Landscape files
This website contains plan information for states in Federally-Facilitated and State-Partnership Marketplaces.
·         Medical plans in the individual market;
·         Medical plans in the small group (SHOP) market;
·         Dental plans in the individual market; and
·         Dental plans in the small group (SHOP) market.
2)      Identifying plans based on geography and plan criteria
To browse for a plan by specific data fields, click on the icon at the top of the column for a specific field of interest such as state, county, or metal level.  For example, to select a specific county of interest, select the county name from the drop-down menu in the second column and click “OK” when done. The file will filter the data and show plan information only for the selected county.   Multiple data fields may also be selected for browsing at one time.
3)      Premium Information
Premium amounts do not include tax credits that will lower premiums for the majority of those applying, specifically those with income up to 400 percent of the federal poverty level.
The document shows premiums for the following example rating scenarios below:
·         Adult Individual Age 27 (column H) = one adult age 27
·         Adult Individual Age 50 (column I) = one adult age 50
·         Family  (column J) = two adults age 30, two children
·         Single Parent Family (column K) = one adult age 30, two children
·         Couple (column L) = two adults age 40, no children
·         Child (column M) = one child any age
Note that child-only plans will only show premiums for the Premium Child column and plans that prohibit child-only coverage will not show premiums for the Premium Child column.
Premium table specific notation:
*     For catastrophic plans only, individuals over age 30 generally may not enroll. However, individuals over the age of 30 with a hardship exemption in effect that was granted by the Marketplace are eligible to enroll.
++   Premiums forthcoming
Note:  This document includes data from plans in the Federally-facilitated and State-Partnership Marketplaces. Those data were pulled from the Health Insurance Oversight System (HIOS) for Federally-facilitated states, and from the System for Electronic and Rate Form Filing (SERFF) for the partnership states.  They are current as of September 27, 2013, and are subject to change. For counties in Alaska and Nebraska, the premium rates shown are for the rating area within that county with the highest population.  For counties in all other states, the premiums shown are for all persons residing in that county. The premium amounts do not include tax credits that will lower premiums for the majority of those applying, specifically those with income up to 400 percent of the federal poverty level.
Follow

Get every new post delivered to your Inbox.

Join 33 other followers