Empathy List Archives

CT

Chuck Thompson

Tue, Jan 12, 2016 4:41 PM

Dial in - 1-888-346-3659 pin 2024#

Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
7910 Woodmont Ave., Suite 1440
Bethesda, Maryland 20814
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C.
IMLA's Annual Conference September 28 - October 2, 2016 - San Diego

Dial in - 1-888-346-3659 pin 2024# Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 7910 Woodmont Ave., Suite 1440 Bethesda, Maryland 20814 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C. IMLA's Annual Conference September 28 - October 2, 2016 - San Diego

LA

Larkin, Arthur (Law)

Tue, Jan 12, 2016 8:20 PM

Everyone -

As mentioned on the call earlier today, attached in PDF is Judge Denny Chin's decision granting summary judgment in a fatal shooting case. On page 22, Judge Chin writes:

I am mindful of the Second Circuit's warnings regarding the "difficult problem" facing plaintiffs in deadly force cases: the unavailability of the individual most likely to contradict the officer's testimony .... This case, however, does not involve the proverbial officer and suspect in an isolated, dark alley. No fewer than nine people --police officers Baumeister, Roughneen, and Ingram; bartenders Slattery and Hughes; and bar patrons McAllister, Castaldo, Cassidy, and Ronan witnessed the events outside Rory Dolan's in the early-morning hours of January 4, 2006. None of them describes the Defendant Officers as employing deadly force prior to Lee's stabbing of Baumeister.

Elsewhere, on pages 20-21, the court states that when considering a motion for summary judgment involving the use of deadly force, the trial court should "consider circumstantial evidence that, if believed, would tend to discredit the police officer's story ...."

The decision is reported, at Henry-Lee v. City of New York, 746 F. Supp. 2d 546 (S.D.N.Y. 2010).

Arthur G. Larkin
Senior Counsel
New York City Law Dept.
100 Church St., Room 3-177
New York, NY 10007
212.356.2641 (tel.)
212.356.3509 (fax)

From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Tuesday, January 12, 2016 11:41 AM
To: federal@lists.imla.org
Subject: [Federal] REMINDER - Call today 2PM EST

Dial in - 1-888-346-3659 pin 2024#

Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
7910 Woodmont Ave., Suite 1440
Bethesda, Maryland 20814
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C.
IMLA's Annual Conference September 28 - October 2, 2016 - San Diego

Everyone - As mentioned on the call earlier today, attached in PDF is Judge Denny Chin's decision granting summary judgment in a fatal shooting case. On page 22, Judge Chin writes: I am mindful of the Second Circuit's warnings regarding the "difficult problem" facing plaintiffs in deadly force cases: the unavailability of the individual most likely to contradict the officer's testimony .... This case, however, does not involve the proverbial officer and suspect in an isolated, dark alley. No fewer than nine people --police officers Baumeister, Roughneen, and Ingram; bartenders Slattery and Hughes; and bar patrons McAllister, Castaldo, Cassidy, and Ronan witnessed the events outside Rory Dolan's in the early-morning hours of January 4, 2006. None of them describes the Defendant Officers as employing deadly force prior to Lee's stabbing of Baumeister. Elsewhere, on pages 20-21, the court states that when considering a motion for summary judgment involving the use of deadly force, the trial court should "consider circumstantial evidence that, if believed, would tend to discredit the police officer's story ...." The decision is reported, at Henry-Lee v. City of New York, 746 F. Supp. 2d 546 (S.D.N.Y. 2010). Arthur G. Larkin Senior Counsel New York City Law Dept. 100 Church St., Room 3-177 New York, NY 10007 212.356.2641 (tel.) 212.356.3509 (fax) From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Chuck Thompson Sent: Tuesday, January 12, 2016 11:41 AM To: federal@lists.imla.org Subject: [Federal] REMINDER - Call today 2PM EST Dial in - 1-888-346-3659 pin 2024# Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 7910 Woodmont Ave., Suite 1440 Bethesda, Maryland 20814 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C. IMLA's Annual Conference September 28 - October 2, 2016 - San Diego

MJ

Moses Johnson

Tue, Jan 12, 2016 9:24 PM

Everyone,

See also Villegas, Gonzalez and Cruz cases on this issue:

Officer Bennallack was confronted with a suspected drug dealer who failed to comply with repeated commands to put his gun down and instead lifted the gun off the ground. Fn. 7. The Court is mindful that it "must be wary of self-serving accounts by police officers when the only non-police eyewitness is dead." Long, 511 F.3d at 906 (citing Scott, 39 F.3d at 915). After carefully examining all the evidence in the record, however, the Court finds nothing that would tend to discredit the officers' testimony. To the contrary, the officers' testimony is "internally consistent and consistent with other known facts." See Scott, 39 F.3d at 915. Villegas v. City of Anaheim, 998 F. Supp. 2d 903, 908, Fn. 7 (C.D. Cal. 2014)
"Deadly force cases pose a particularly difficult problem ... because the officer defendant is often the only surviving eyewitness." Henrich, 39 F.3d at 915. This is one of those difficult cases. Gonzalez *795 cannot testify because he is dead, and no other witnesses saw the incident. In such cases, we "must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story-the person shot dead-is unable to testify." Id. Accordingly, we carefully examine "all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, ... to determine whether the officer's story is internally consistent and consistent with other known facts." Id. We must also examine "circumstantial evidence that, if believed, would tend to discredit the police officer's story." Id. We have held that summary judgment should be granted sparingly in excessive force cases. Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir.2011). This principle applies with particular force where the only witness other than the officers was killed during the encounter. Gonzalez v. City of Anaheim, 747 F.3d 789, 794-95 (9th Cir.) cert. denied sub nom. Wyatt v. F.E.V., 135 S. Ct. 676, 190 L. Ed. 2d 389 (2014)
But in the deadly force context, we cannot "simply accept what may be a self-serving account by the police officer." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994). Because the person most likely to rebut the officers' version of events-the one killed-can't testify, "[t]he judge must carefully examine all the evidence in the record ... to determine whether the officer's story is internally consistent and consistent with other known facts." Id.; see also Gonzalez v. City of Anaheim, 747 F.3d 789, 794-95 (9th Cir.2014) (en banc). This includes "circumstantial evidence that, if believed, would tend to discredit the police officer's story." Scott, 39 F.3d at 915. Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014)
I raised the issue in Gonzalez but the US Supreme Court denied cert.

Villegas has been appealed to the 9th Cir. and I am again raising the issue. Fully briefed, no oral arg. set yet.

Thanks,

Moses Johnson, Asst. City Atty, Anaheim
mjohnson@anaheim.net mailto:mjohnson@anaheim.net
(714) 765-5169

From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Larkin, Arthur (Law)
Sent: Tuesday, January 12, 2016 12:20 PM
To: 'Chuck Thompson'; federal@lists.imla.org
Subject: Re: [Federal] REMINDER - Call today 2PM EST

Everyone -

As mentioned on the call earlier today, attached in PDF is Judge Denny Chin's decision granting summary judgment in a fatal shooting case. On page 22, Judge Chin writes:

I am mindful of the Second Circuit's warnings regarding the "difficult problem" facing plaintiffs in deadly force cases: the unavailability of the individual most likely to contradict the officer's testimony .... This case, however, does not involve the proverbial officer and suspect in an isolated, dark alley. No fewer than nine people --police officers Baumeister, Roughneen, and Ingram; bartenders Slattery and Hughes; and bar patrons McAllister, Castaldo, Cassidy, and Ronan witnessed the events outside Rory Dolan's in the early-morning hours of January 4, 2006. None of them describes the Defendant Officers as employing deadly force prior to Lee's stabbing of Baumeister.

Elsewhere, on pages 20-21, the court states that when considering a motion for summary judgment involving the use of deadly force, the trial court should "consider circumstantial evidence that, if believed, would tend to discredit the police officer's story ...."

The decision is reported, at Henry-Lee v. City of New York, 746 F. Supp. 2d 546 (S.D.N.Y. 2010).

Arthur G. Larkin
Senior Counsel
New York City Law Dept.
100 Church St., Room 3-177
New York, NY 10007
212.356.2641 (tel.)
212.356.3509 (fax)

From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Chuck Thompson
Sent: Tuesday, January 12, 2016 11:41 AM
To: federal@lists.imla.org mailto:federal@lists.imla.org
Subject: [Federal] REMINDER - Call today 2PM EST

Dial in - 1-888-346-3659 pin 2024#

Charles W. Thompson, Jr.
Executive Director and General Counsel
International Municipal Lawyers Association, Inc.
7910 Woodmont Ave., Suite 1440
Bethesda, Maryland 20814
202-466-5424 x7110
Direct: 202-742-1016
Cell: 240-876-6790
Plan ahead:
IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C.
IMLA's Annual Conference September 28 - October 2, 2016 - San Diego

THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAWS. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by e-mail or telephone, and delete the original message immediately. Thank you.

Everyone, See also Villegas, Gonzalez and Cruz cases on this issue: Officer Bennallack was confronted with a suspected drug dealer who failed to comply with repeated commands to put his gun down and instead lifted the gun off the ground. Fn. 7. The Court is mindful that it "must be wary of self-serving accounts by police officers when the only non-police eyewitness is dead." Long, 511 F.3d at 906 (citing Scott, 39 F.3d at 915). After carefully examining all the evidence in the record, however, the Court finds nothing that would tend to discredit the officers' testimony. To the contrary, the officers' testimony is "internally consistent and consistent with other known facts." See Scott, 39 F.3d at 915. Villegas v. City of Anaheim, 998 F. Supp. 2d 903, 908, Fn. 7 (C.D. Cal. 2014) "Deadly force cases pose a particularly difficult problem ... because the officer defendant is often the only surviving eyewitness." Henrich, 39 F.3d at 915. This is one of those difficult cases. Gonzalez *795 cannot testify because he is dead, and no other witnesses saw the incident. In such cases, we "must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story-the person shot dead-is unable to testify." Id. Accordingly, we carefully examine "all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, ... to determine whether the officer's story is internally consistent and consistent with other known facts." Id. We must also examine "circumstantial evidence that, if believed, would tend to discredit the police officer's story." Id. We have held that summary judgment should be granted sparingly in excessive force cases. Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir.2011). This principle applies with particular force where the only witness other than the officers was killed during the encounter. Gonzalez v. City of Anaheim, 747 F.3d 789, 794-95 (9th Cir.) cert. denied sub nom. Wyatt v. F.E.V., 135 S. Ct. 676, 190 L. Ed. 2d 389 (2014) But in the deadly force context, we cannot "simply accept what may be a self-serving account by the police officer." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994). Because the person most likely to rebut the officers' version of events-the one killed-can't testify, "[t]he judge must carefully examine all the evidence in the record ... to determine whether the officer's story is internally consistent and consistent with other known facts." Id.; see also Gonzalez v. City of Anaheim, 747 F.3d 789, 794-95 (9th Cir.2014) (en banc). This includes "circumstantial evidence that, if believed, would tend to discredit the police officer's story." Scott, 39 F.3d at 915. Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014) I raised the issue in Gonzalez but the US Supreme Court denied cert. Villegas has been appealed to the 9th Cir. and I am again raising the issue. Fully briefed, no oral arg. set yet. Thanks, Moses Johnson, Asst. City Atty, Anaheim mjohnson@anaheim.net<mailto:mjohnson@anaheim.net> (714) 765-5169 From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Larkin, Arthur (Law) Sent: Tuesday, January 12, 2016 12:20 PM To: 'Chuck Thompson'; federal@lists.imla.org Subject: Re: [Federal] REMINDER - Call today 2PM EST Everyone - As mentioned on the call earlier today, attached in PDF is Judge Denny Chin's decision granting summary judgment in a fatal shooting case. On page 22, Judge Chin writes: I am mindful of the Second Circuit's warnings regarding the "difficult problem" facing plaintiffs in deadly force cases: the unavailability of the individual most likely to contradict the officer's testimony .... This case, however, does not involve the proverbial officer and suspect in an isolated, dark alley. No fewer than nine people --police officers Baumeister, Roughneen, and Ingram; bartenders Slattery and Hughes; and bar patrons McAllister, Castaldo, Cassidy, and Ronan witnessed the events outside Rory Dolan's in the early-morning hours of January 4, 2006. None of them describes the Defendant Officers as employing deadly force prior to Lee's stabbing of Baumeister. Elsewhere, on pages 20-21, the court states that when considering a motion for summary judgment involving the use of deadly force, the trial court should "consider circumstantial evidence that, if believed, would tend to discredit the police officer's story ...." The decision is reported, at Henry-Lee v. City of New York, 746 F. Supp. 2d 546 (S.D.N.Y. 2010). Arthur G. Larkin Senior Counsel New York City Law Dept. 100 Church St., Room 3-177 New York, NY 10007 212.356.2641 (tel.) 212.356.3509 (fax) From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Chuck Thompson Sent: Tuesday, January 12, 2016 11:41 AM To: federal@lists.imla.org<mailto:federal@lists.imla.org> Subject: [Federal] REMINDER - Call today 2PM EST Dial in - 1-888-346-3659 pin 2024# Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 7910 Woodmont Ave., Suite 1440 Bethesda, Maryland 20814 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Seminar April 15-18, 2016 - Omni Shoreham, Washington D.C. IMLA's Annual Conference September 28 - October 2, 2016 - San Diego ________________________________ THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAWS. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by e-mail or telephone, and delete the original message immediately. Thank you.