Command Decisions: Use of Force

COMMAND

DECISIONS

USE OF FORCE

Ethics in the Use of Force, When to Make a Stand or Walk Away

Philosophy, Operation, and Function

The Security Officers’ Guide to the use of force, the amount of force, or not to use it at all,

Excessive Force and Its Dangers, Liability, and Consequences

Peter G. Hilton, jd

Command Decisions: Use of Force

Ethics in the Use of Force, When to Make a Stand or Walk Away; Philosophy, Operation, and Function

By Peter G. Hilton, JD

Copyright © 2015 by Peter G. Hilton, JD

Edited by:  Nicki Kuzn, www.booktiqueediting.com

Cover Design & Formatting by: Kim Black, TOJ Publishing Services

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law.

Printed in the United States of America

First Edition, 2015

My Friend, Corbett Rousey

I met Corbett Rousey in1988. He was working for Burns Security as a supervisor on the night shift. We became friends and in 1989, he came to work with me in my investigation business. Since that time, he has accompanied me on thousands of cases and together we made over three thousand arrests of persons who jumped bail, abducted children, and committed criminal acts.

We endured each other in philosophy, operation, and function and held all these elements sacred. We worked through difficult and hard times staying on track not violating the ethics of our work, and we kept true to the investigations and suspects we arrested and kept them safe from harm.

Corbett protected me and saved my life countless times during arrests where a suspect would have hurt me or killed me. We worked together as brothers who valued each other and the work we did; in return, I pledged myself and my life to also protect him during our investigations and work.

When two people work together in law enforcement as we did, you form a bond that can never be broken; it develops through a well-defined sense and spirit of love for your partner’s well-being. You both understand how important a part you play in each other’s life, especially at that moment when things can go wrong in an investigation and arrest, you know what is expected of you and the role you have to play so you can both to survive.

In many cases you have split seconds to act and think of all the alternatives to protect you and your partner, including losing your own life in sacrifice for theirs, and that is how true heroes are made.

Thank you Corbett, my brother, for your friendship and protection.

Appreciation

I also want to thank:

Mary Anderson (sister of the actor, Harry Anderson) who was a friend early in my career and helped me become a licensed private investigator in California and taught me valuable lessons on skip tracing.

To Ardath Jane Church, my second wife, who became my friend and mentor and helped me climatize to Los Angeles.

Mark Worstell, one of the best skip tracers in the business and a licensed private investigator, who could find any information and locate anyone.

Carl Jones, Lieutenant with the Department of Transportation and my friend, who was there for me when all around me was dark and lonely.

To my children Douglas, Christina, and Michael for all their support and trust.

To Zweet Cafe in Eagle Rock, which kept the coffee and smiles coming throughout the writing of this book.

INDEX

My Friend, Corbett Rousey

Appreciation

INDEX

PREFACE

INTRODUCTION

The Natural Law of Self-Defense

COURT CASE OPINIONS USED IN THIS BOOK

Summary Overview of the U.S. Court Systems

RODNEY KING, WHAT DID WE LEARN?

When Police and Security Officers Become Criminals

CHAPTER ONE

USE OF FORCE

Defending the Faith

The Yellow Card

Self-Defense

Angels in the Sky

Death Penalty for Selling a Cigarette

Operation

California Penal Code

Frustration and Conflict Lead to Death

At What Cost the Rule of Law

The Real World and Use of Force

Function

Fourth Amendment of the Constitution

The Reality of Your Conflict

CHAPTER TWO

USE OF FORCE AND THE LAW

Philosophy

Precedent but Dangerous to Act Out

Keeping to the Law and Still Doing Your Job?

Operation

California Civil Code 50

California Civil Jury Instruction

1304. Self-Defense/Defense of Others

California Penal Statutes for Resistance to Force

California Penal Code

Is the use of force a subjective or objective standard?

What is the Objective Test?

Test for Reasonableness

Exacting justice

Administering Justice

The Real World and What you have to Do to Survive

Function

When it All Matters

CHAPTER THREE

A CLOSER LOOK AT INTENT

Philosophy

The Loss of Vocational Employment

Undercover with a Blue Knight

The Cloak of Invisibility

When The Suspect is Bigger and Stronger than You

When Philosophy Takes Over

Philosophy Does Not Care if You Die

The Trapdoor of the Hangman’s Noose Or I was just doing my Job?

Operation

Laws of Arrest, an Understanding of Fiction

What is an Arrest?

California Penal Code (CPC)

Taking Custody of the Person

California Penal Code

Your Words are Your Defense

The Full Text Taken from California Jury Instructions Criminal:

BENCH NOTES

AUTHORITY

RELATED ISSUES

Resistance is Futile

California Penal Code (CPC)

Authority to Arrest

The California Penal Code Separates Crimes as Follows:

California Penal Code, Petty Theft

I just want to be A Security Officer, not a Lawyer

California Penal Code, Burglary

California Penal Code, Robbery

California Penal Code, Summoning Assistance

My Intent is to Arrest You

California Penal Code, Notice of Intent to Arrest

Your Heart will Imprison You

Shots fired and you go to Cover

Function

California Penal Code, Surrender of Defendants on Bail

U.S. Supreme Court Taylor v. Taintor, 83 U.S. 16 Wall. 366 366 (1872)

Bail Investigations (Bounty Hunting)

Philosophy makes you do strange things

Checking in With Law Enforcement

When it goes bad, it goes bad

Let’s Check Out the Location

All or Nothing in a Badge

The End of Chaos

CHAPTER FOUR

Hot Pursuit of the Law

Philosophy

In Pursuit of the Arian Nation

The Heart of the Beast

Peace before the Storm

Chaos and the Use of Force

It’s not over until it’s over

Pursuit of the heart and Stability of the Brain

Operation

California Penal Code, Breaking Doors and Entering Property to Make an Arrest

Following the Rules

The Duty to turn the Arrested Person over to the Law

California Penal Code, Turning Over Arrested Person

When the Suspect Does not want to go to jail

Function

The Vampire Hours

We were ready to Bite

The Suspect Shows his Teeth

The Defendant Chooses His Jail

CHAPTER FIVE

USE OF FORCE GONE WRONG

Philosophy

The Nieve Police and Security Officer

The World of Missing Children

Missing Children and the Rascals

From Traffic Citation to Death

Lack of Emotional intelligence

State of Massachusetts Jury Instruction 6.300 which in part States:

Professionalism and Ethics

State of Texas Oath of Public Office

Upholding the Constitution while Doing Your Job

Unchecked Power and the Oppression of Philosophy

The Law Sits Quietly

Operation

The Public Trust

The Fear of Suing the Police

What is the Mission, Vision, and Code of Ethics?

LOS ANGELES POLICE DEPARTMENT MISSION, VISION, AND CORE VALUES

CORE VALUES

Being the Best but Carrying a Big Stick

Cold World of Operation

California Penal Code Abuse under Color of Authority

Abuse under color of Authority

California Penal Code

People Skills

The Truth and Conviction of Your Work

Function

Networking can save your Life

The Right Vehicle for the Job

A Shooting in Rap City

To Shoot or Not TO Shoot, That is the Question?

The Aftermath

CHAPTER SIX

PRIVATE SECURITY, A PROFESSION OF LIABILITY

Philosophy

MacArthur Park

Normal Work as a Security Officer

Who are Guests and Trespassers?

A Simple Room Check

Internal Mindset

Heaven Fast Approaches

The Debrief

Are You really in Fear for your Life?

Security Officers and the States

Operation

Education in Your Profession is Important

A Day at the Hotel

Function

A Lawsuit for Doing Your Job

Trial and Documentation

Due Diligence Pays Off

Resolve your inner conflicts

CHAPTER SEVEN

WHEN THE DEFENDANT IS IN CUSTODY

Philosophy

Oppression Born from Unchecked Power

Officer or Walking Weapon

When is a Person in Custody?

Just Misunderstood

Sued for Just Talking to Someone

Just a Conversation

The Defendant’s Address

The Defendant is in Custody

A Filed Lawsuit

Liability, Liability, Liability

The rule of Law becomes Gray and Cloudy

Operation

You are in Custody but Not in Custody?

To answer or not to answer, that is the Question?

Private Security are Not State Actors

Called as a Witness

Function

Philosophy and Operation Sometimes Become Cloudy

The Battle of Wills

Go to Jail, Directly to Jail, do not Collect $200

The Judge Becomes the Law

The Wheels of Justice Turn

CHAPTER EIGHT

THE RULES OF ENGAGEMENT

Philosophy

The Military Way

The Peaceful City Of Newry

Scream through the Air

The Countryside becomes a War Zone

Wrong Way Home

Rules of Engagement Matter

Indiscriminate Use of Force

The Consequences of Battle

Operation

The Yellow Card survives the test of Time

The Police are not the Military?

ENDING EXCESSIVE POLICE FORCE STARTS WITH NEW RULES OF ENGAGEMENT

Washington Post, December 2014

The Right to Bear Arms

The Fourth Amendment and Seizure of a Person’s Body

Why are Police Killing Unarmed Citizens?

Interesting Use of Force Facts

Excerpts from the Library of Congress File

History of Firearms Law

Modern Developments in Firearms Legislation

Dunblane and the Firearms (Amendment) Act 1997

Cumbria

Public Inquiry After Dunblane

Compensation

Firearms Laws

Definition of Firearm

Minimum Sentencing Laws

Effectiveness of the Legislation

The Second Amendment of the United States Constitution

The Right of a Person to be Secure in His Home and Person

New York, New York

Full Faith and Credit, What?

Whoops!

Action and Consequences, Detained for Nothing

Citizens Right to protect themselves

CHAPTER NINE

CARRYING WEAPONS AND THEIR USE

Philosophy

The Second Amendment to the United States Constitution

Carrying and owning any Weapon is a philosophy

Private Security Officer Death Count 2012

The Power of a Firearm

A Sweet Informant

A Discussion of Force

From Badge to Gun

De-escalation of Force

Is the Threat Real?

The Beach City Arrest

The world of Philosophy is Dangerous

Underestimation of the Threat

CHOICE OF WEAPONS

Chemical Weapons, Pepper Spray

Private Security and the Use of Pepper Spray

The Law Waits Patiently for You

Standards of Proof generally

Substantial Evidence

Preponderance of the Evidence

Clear and Convincing Evidence

Beyond a Reasonable Doubt

Facts and Procedural Background

Discussion

Disposition

BATONS

TASERS

THIS EXCERPT FROM THE NATIONAL INSTITUTE OF JUSTICE—POLICE USE OF FORCE

Notes

Mission

Types of Tasers/Stun Guns

Dart Firing Taser are Generally Distance Weapons

Levels of Resistance Defined

Tasers - A Brief History

ORDER

OPINION

CONCLUSION

FIREARMS:  Self-Defense or Murder?

Top 15 Nations for Gun Ownership

Top 15 Nations for Gun Ownership

UNITED NATIONS SPECIAL PROVISIONS ON USE OF FREARMS BY LAW ENFORCEMENT

Disparities of Firearms Deaths among U.S. Subpopulations

Demographic Characteristics of Victims in the United States

Even Felons have a Right to Defend Themselves

PRIVATE SECURITY AND FIREARMS

California Business and Profession Code

To kidnap a baby

Function

Think before you carry any Weapon

AFTER THOUGHT

17-Year Old Laquan McDonald

The Dark Alley Element

DR. PETER G. HILTON JD BIOGRAPHY

SOURCES

US SUPREME COURT

US COURT OF APPEALS

SUPREME COURT OF CALIFORNIA

CALIFORNIA COURT OF APPEALS

OTHER STATE COURTS

PREFACE

The law should be applied without fear or favor, malice of ill will, or prejudice, bias or fear from others, particularly the powerful. This means there must be an independent and impartial judiciary. (Philosophy)

A just legal system has rules and principles that are understood by those applying them.  There is machinery for applying the rules.  The rules apply to all persons, no one should be above the law, and all people should be treated equally. As Lord Denning said, Be you ever so high, the law is above you.  (Gouriet v Union of Post Office Workers and Others [1977] CA.) (Operation)

The Rule of Law and Natural Justice requires that everyone be subject to the same law, that the law should do justice by not punishing those whose actions are innocent or justified, and that there must be certainty in the law so everyone can regulate their affairs accordingly.  There must be access to independent tribunals and a system of appeals, and a means of preventing arbitrary law-making particularly by officials and inferior courts. (Function)

On April 4, 2015, in North Charleston, South Carolina, Walter Scott (Scott) was pulled over in a traffic stop (non-functioning brake light) by police officer, Michael Slager, and was shot eight times in the back as he ran away from the officer. Scott had not threatened or assaulted the officer, and Scott later died of his wounds.

Scott was a 50-year-old forklift operator who was studying massage therapy as an additional employment option. Scott had previously served two years in the U.S. Coast Guard and received a general discharge. His criminal history was made up of several failures to pay child support, an assault charge in 1987, and a conviction for possession of a bludgeon (a stick).

This was the extent of Scott’s criminal history and was not known by the officer at the time of his seizure for the traffic stop by Slager.

The United States Supreme Court in Tennessee v. Garner, No. 83.1035 (1985) stated:

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.

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.

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.

Tennessee v. Garner is the law of the land in the U.S.; it does not matter what law a state enacts to statute the Use of Force. It must meet the minimum standard outlined in the law in compliance with the Constitution, and is applicable to both law enforcement and private persons alike. Why then was Walter Scott killed by Officer Michael Slager?

In my first book, Command Decisions, Ethics of Being a Security Officer, I introduced the concept of Philosophy, Operation, and Function.

Philosophy is the way you see yourself and the way you act the way you do; it’s your personality, and it is the distinct character you have decided to set as the moral compass for your decisions. It does not have the luxury of hindsight or judgment, it operates directly from your heart and mind without restriction. It is guided by your view of life and what you have decided is the action for each and everything you do.

Philosophy has only the confines of your restrictions and boundaries which you set and believe in. An Eye for an Eye means just that in philosophy, no matter what, Kill or be Killed in philosophy means you get to go home at the end of the day (most police prescribe to this ideology), and Revenge is Justice and that’s just the way it is.

Philosophy is the creature of emotion and of heart. It is developed from the perception of injustice, life, and experiences. (Merriam Webster Definition: the study of ideas about knowledge, truth, the nature and meaning of life, etc., a particular...set of ideas about how to do something or how to live.)

Philosophy has no parameters or rules that are defined. It is what you make it in your mind and heart, it is grown from the experiences you have and how you dealt with them at that time, and it controls your thoughts and actions in a vacuum with no parameters for understanding, factual decision making, or level of boundary. Philosophy is egotistical, egocentrically Narcissistic, and ambivalent to the Rule of Law.

In the world of Philosophy, you are the judge, trier of fact, and executioner. You decide what is right and act upon it without regard for law or the rules which are in place (Operation) to protect, stabilize, and civilize society. In essence, you are a creature of what you believe to be right.

When you look at the Walter Scott incident, Police Officer, Michael Slager, operated completely in Philosophy. He believed what he was doing was right, even though all the training he received, all the education he was given, and all the counseling he may have attended could not override the philosophy of his mind and his heart; it controlled him like destiny, it ruled his very existence and objectives for his day, it drove him like an automated robot to kill Walter Scott—it was the right thing to do and had to be done.

Police officers all over the United States suffer from this type of problem, and if it is not controlled or stopped, more Walter Scotts will eventually meet their end the same way.

Operation is the way society protects itself. It is the rules, processes, laws and procedures in which we define all things, codes of conduct, statutes of law, rules of convention, and governance of morals which we establish to stabilize Philosophy.

Operation is established to reign in the uncontrolled Philosophy of a person and to place in its way, a roadmap for the stability of thought and action, and to promote harmony and compliance with society and its goals.

Philosophy and Operation will always be in conflict, are supposed to be that way, and are resolved in the element of Function.

Michael Slager knew the conflict of Operation with the confines of his Philosophy and was allowed to ignore its conventions. The City of North Charleston, the Police Department, and State of South Carolina had given Michael Slager the training, education, and procedures which were supposed to protect Walter Scott, but his Philosophy overrode the Operation of Law, and the question is why?

Function is the balance between Philosophy and Operation. It is there to protect the conflicts of the two.

In Function, we can see the development of our desire to protect society through Operation. It serves as the stabilizer for the Philosophy of the person and gives a boundary to have a context for their belief system, it gives meaning to the desire to ignore the conflict of Operation on our heart and emotion, and acts as the inhibitor for the catalyst of uncontrolled actions that may lead to harm or liability.

This means Function must be ongoing and should embrace the Philosophy of the person in the real world. It should not close down the thought process of the desire in the heart or mind. What this means is Michael Slager always showed his desire to harm or kill. It was present in his actions. In his background were instances of the Use of Force which were beyond the confines of Operation, and were the product of his Philosophy. The Department failed in Function to control his desire, and allowed him to operate in the world of his Philosophy. We see many police departments across the country fail to act when a police officer or private law enforcement officer steps out of Operation into the Philosophical desire to act.

We must act fast in Function with clear and precise determination to correct the conflict which arises in Operation with a person’s Philosophy. If we do not, the consequences are unsurmountable and lead to a breakdown of the society protections which we have in place to govern us. It is not enough to perceive or presume that a police or security officer was just doing his or her job, but in Function, they must have followed the very tenants of Operation to the letter of the law, with no deviation from its course or norm; to do otherwise, would place people and society in harm from the very protections we established to keep them safe and secure.

Function is the balance between Philosophy and Operation, and if the North Charleston Police Department had acted fast and swift with Michael Slager, Scott would be alive today, as would many unarmed civilians who are being killed by police officers and other law enforcement.

We will discuss the ethical and disciplinary considerations of the Use of Force as we progress through this book. We will look at other examples of the Use of Force by police and other law enforcement, private and public, across the country, and the law in place to prevent its action, and explore the legal requirements which must exist before the application of the Use of Force.

As a security officer, you must come to the correct choice in your mind based upon the training you have received. It is also important you realize your duty is to already know what your actions will be before an incident arises. You must be prepared to not use lethal force in every case unless your life or someone else’s life is in danger or you are faced with serious bodily injury, and be prepared to use lesser alternatives of less lethal force. You must always disengage your Philosophy in favor of Operation, and in some cases, walk away from the incident to preserve human life, especially when the crime involves a petty or minor crime where no threat of bodily injury or harm is contemplated by the suspect.

Police officers must also be prepared to make these choices as well and not resort to lethal force for all cases, especially when a suspect does not comply with their instructions or due to their own ego being bruised. It is important to remember when an officer decides to act through a desire of Philosophy and ignore Operational contexts, there will be consequences and unlimited liability which will cause the unnecessary death of a human being. Police departments across the country

must be aware of the egotistical philosophy and desire of their officers to act in accordance with their ingrained philosophical belief system, which will be found in Function and must be rigorously reviewed and constantly conformed to the operational norms of the law.

No more can law enforcement or a private security company turn a blind eye to the officers who ignore the operation of law and take it upon themselves to act out in their Philosophy to take the life of a person or cause serious bodily injury.

INTRODUCTION

The Natural Law of Self-Defense

Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from the failing to apprehend him does not justify the use of deadly force to do so... (Byron R. White, Justice of the US Supreme Court)

The right to use force to defend oneself is comprised from the natural law of man/woman.

"Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment. For example: the union of men and women, the succession and rearing of children, the common possession of all things, the identical liberty of all, or the acquisition of things that are taken from the heavens, earth, or sea, as well as the return of a thing deposited or of money entrusted to one, and the repelling of violence by force. This, and anything similar, is never regarded as unjust but is held to be natural and equitable. (GRATIAN, THE TREATISE ON LAWS 6-7 (Augustine Thompson & James Gordle trans., 1993) (Distinction 1, C.7, §§ 2-3)) In the five centuries from Gratian to the American Constitution, the concept of natural law, including natural rights, was developed by Catholic scholars such as Thomas Aquinas, Francisco de Vitoria, Juan de Mariana, and Francisco Suárez (who called self-defense the greatest of all rights). From the personal right of self-defense against lone criminals, they derived the people’s right of self-defense against criminal, tyrannical governments. (Syracuse Law Review [Vol. 59).

From the very beginning of mankind, the right to defend oneself from attack is born of the natural right to survive and the right to exist. It allows for the right of freedom and the pursuit of life for the human being, and it has survived the test of time. Every human being has the right to protect themselves or others from the loss of life or injury to the extent that it does not offend the civilization of the senses. It endures time, law, society, and legal presumptions which a person has to submit to the loss of life at the hands of another, who would take the future existence of a human being without consequences of natural law and accountability of a civilized society.

That one's force is not aggressive, but defensive in nature, is a defense to criminal conduct in all fifty states and is recognized in nearly every jurisdiction in the world. The pervasiveness of this legal right has its root in a number of extralegal ideas. First, the use of protective force is considered a fundamental, inalienable right of natural law or morality. Second, the Old Testament demands that in the face of violence, we take an eye for an eye, a tooth for a tooth. Third, human psychology suggests that using force in self-defense embodies the instinctual and overwhelming impulse toward   self-preservation (J Rank).

As the great English legal scholar, William Blackstone, put it, "killing in self-defense embodies the primary law of nature (vol. iii, p. 3). Based on this principle of self-preservation."

If a man, by the terror of present death, be compelled to do an act against the law, he is totally excused because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory; yet a man would reason thus, if I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained. (Leviathan, Chap. 27 (1651))

The life of a person is immortality and, to the extent that you survive until you die from natural causes or from illness, the right of a person to survive to the end of their life and to live succeed the law. It gives the right to the person to preserve their life from forfeit at the hands of another who would feloniously take it from the person and deny them the immortality of life.

In other words, faced with certain present death at the hands of a villainous assailant or possible subsequent death from the state's executioner, the will to live inculcated in our human nature is so strong that it would be futile to criminalize self-defense. Though the inevitability and inalienability of self-defense is perhaps self-evident and serves as a necessary adjunct to the other self-evident truths of the right to life and liberty, the right to self-defense is curiously not a constitutional right (Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994)) but a natural right to survival of the human being and to be free from loss of life at the hands of another.

COURT CASE OPINIONS USED IN THIS BOOK

Throughout the chapters in this book, there are court opinions from various courts, including State Appellate Courts and the United States Supreme Court.

The case opinions have been used as an informational guide to the reader about certain persuasive authorities as they apply to the context of each chapter in the book.  They are also used to show the history of how certain elements of law regarding arrest, custody, rights, and the use of force was discussed by the justices and the impact upon society, the person, and the professions.

While they are legal opinions, the reader should not rely on their authority until they have consulted an attorney or checked the case to see if it is current law. Supreme Court case opinions become the law of the land with respect to the Constitution, and are then adopted by the states; where necessary, each legislature will amend their laws to conform to the Justices’ opinions or create new law.

In the United States, the common law doctrine of stare decisis is used by the courts when they decide issues of law. This is when the courts look at decisions that have been made before about an element in law; if it is well settled in law, they generally will not disturb that precedent or legal conclusion as the law favors a consistency of legal presumption.

In addition, the reader needs to understand that courts are split up into jurisdictions, i.e., Municipal, Superior, Appellate, and Supreme Courts among the states, especially in California. Some states name their Municipal, Justice, Circuit, and Superior or District Courts.

It is important to remember that state courts deal with state law and have general jurisdiction to deal with a wide range of issues at law. The United States courts are Limited Jurisdiction Courts and deal with federal law or federal questions involving the United States Constitution. This means, if you have a remedy at law that involves a state law issue, you must bring that case to a state court, not a federal court.

Cases involving an issue or controversy of federal law or federal question will be brought to a United States District Court or a Circuit Court

Cases brought in a Municipal Court will be appealed to the Superior Court, Appellate Division, and cases in the Superior Courts will be appealed to the State Appellate District Court, and state appellate cases will be appealed to the State Supreme Court.

The state will be broken up into appellate districts with courts of appeal, who will hear cases belonging to that district; for instance, Los Angeles is in District Two in the California Appellate District system, and there are six Appellate Districts in California.

On November 8, 1904, Article 6, Section 4 of the California Constitution was adopted creating three District Courts of Appeal:  the First District located in San Francisco, the Second District located in Los Angeles, and the Third District located in Sacramento. The Constitution was modified in 1966 and there are now six Courts of Appeal:  the Fourth District with Divisions in San Diego, Riverside, and Santa Ana, the Fifth District in Fresno, and the Sixth District in San Jose.

The Second District held its first session on April 24, 1905. It is now made up of four counties—Los Angeles, Ventura, Santa Barbara, and San Luis Obispo. There are eight divisions of four justices each. Divisions 1-5, 7 and 8 are located in Los Angeles and handle all matters arising from the Los Angeles Superior Court. Division 6 is located in Ventura and handles all matters from the Ventura, Santa Barbara, and San Luis Obispo Superior Courts.

Courts of Appeal review final judgments of Superior Courts for prejudicial errors of law. Most appellate dispositions are by written opinion. The Second District files over 5,000 appellate opinions each year. Courts of Appeal have original jurisdiction over writs of habeas corpus, mandamus, prohibition, and certiorari. Writ petitions may be disposed of by summary order or written opinion. The Second District disposes over 3,700 writ petitions yearly.

Cases are decided by randomly selected three Justice Panels. There are 32 Justices in the Second District. Justices are appointed by the Governor and confirmed by the Commission on Judicial Appointments. Newly appointed justices must be retained by the public at the next general election and at the end of each 12-year term.

Appeals from the Appellate Courts are taken to the State Supreme Court. In California, a petition must be made for a showing before the Supreme Court will accept the case. These petitions will be reviewed by the court to see if it is a case or controversy that has already been well settled in law. If they feel it creates a new question of law that must be answered or they have several districts that are divided on an issue of law, they will take the case to resolve the issues.

You should also understand that Appellate Courts do not overturn verdicts, they only review a case to see if a procedural error on law occurred, which was either prejudicial or not prejudicial.

If it is prejudicial, the case can be sent back to the trial court for further review and decisions by the judge to correct the error. If it is so prejudicial it completely violated the petitioner’s rights and cannot be corrected by further review or action by the trial court, the case will be dismissed in favor of the petitioner.

Cases from a State Supreme Court can be appealed to the United States Appellate District Court. There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Court of Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals.  The appellate court’s task is to determine whether or not the law was applied correctly in the trial court. Appeals courts consist of three judges and do not use a jury.

A Court of Appeals hears challenges to district court decisions from courts located within its circuit as well as appeals from decisions of federal administrative agencies.

In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the U.S. Court of International Trade and the U.S. Court of Federal Claims.

The nation’s 94 district or trial courts are called U.S. District Courts. District Courts resolve disputes by determining the facts and applying legal principles to decide who is right.  

Trial courts include the district judge who tries the case and a jury that decides the case. Magistrate judges assist district judges in preparing cases for trial. They may also conduct trials in misdemeanor cases.

There is at least one District Court in each state and the District of Columbia. Each district includes a U.S. Bankruptcy Court as a unit of the District Court. Four territories of the United States have U.S. District Courts that hear federal cases, including bankruptcy cases:  Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands.

There are also two special trial courts. The Court of International Trade addresses cases involving international trade and customs laws. The U.S. Court of Federal Claims deals with most claims for money damages against the U.S. government. 

Congress created several Article I Courts, or legislative courts, which do not have full judicial power. Judicial power is the authority to be the final decider in all questions of Constitutional law, all questions of federal law, and to hear claims at the core of habeas corpus issues. Article I Courts are:

U.S. Court of Appeals for Veterans Claims

U.S. Court of Appeals for the Armed Forces

U.S. Tax Court

The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts. In the federal court system’s present form, 94 district level trial courts and 13 Courts of Appeals sit below the Supreme Court

Summary Overview of the U.S. Court Systems

RODNEY KING, WHAT DID WE LEARN?

In 1991, while driving down the 210 freeway in Los Angeles with two friends, Rodney King was detected speeding by the California Highway Patrol. Fearing that his probation for a robbery offense would be revoked because of the traffic violation, King led the CHP on a high-speed chase, eventually hitting 115 miles per hour, according to the police.

By the time he was caught and ordered to exit his vehicle, several L.A.P.D. squad cars had arrived on the scene. A struggle ensued, and some of the officers quickly decided that King was resisting arrest.

Sergeant Stacey Koon fired two shots into King with a TASER gun, and after that failed to subdue him, the officers, including Laurence Powell, beat him mercilessly with their batons. The incident was videotaped by a man named George Holliday who lived nearby, and it didn't take long for the tape to send shockwaves around the world and enrage the already-frustrated Los Angeles African American community, which felt that racial profiling and abuse by the police had long gone unchecked.

Once the four officers accused in the beating were acquitted a year later by a predominantly white jury in the majority white suburb of Simi Valley, all that rage turned into the worst single episode of urban unrest in American history, which erupted on April 29, 1992, and before they were quelled a few days later, had left 53 people dead and $1 billion in damage.

In the midst of the harrowing violence, King nervously uttered the phrase that would forever be synonymous with him and the riot:  Can we all just get along?

His sudden fame didn't make things much easier for King. He did win $3.8 million in damages from the City of Los Angeles for the beating incident, but much of it went into starting a rap record label, Straight Alta-Pazz Records, which soon folded. Over the next several years, he was arrested for various charges, including convictions for drunk driving and domestic abuse. He moved from Los Angeles to suburban Rialto to live quietly with his family. Over the years, King has refrained from talking to the press about the incident or his troubles, and there was no response to numerous interview requests by TIME relayed by intermediaries.

He was really desperately trying to rise above it and put the incident behind him, says his most recent attorney, Renee Campbell. Rodney has this wonderful personality, he's always looking for the good part of life. He's simply a very nice man caught in a very unfortunate situation.

His sister, Ratasha, says that through it all, King has managed to maintain high spirits, and that he is living once again in Los Angeles helping to run a family-owned construction company and doting on his granddaughter. He's doing well, she said. We don't really talk about that whole thing. We did then, but we don't now.(Madison Gray, Time.)

When Police and Security Officers Become Criminals

We entrust our lives and safety to police and security officers, and we hope they stay true to the oaths they take to protect and serve us. We are forever changed when a police officer breaks the law, and it has severe consequences for both society and the police departments they serve.

The philosophy of a true-minded citizen is that police and security officers are honest, hardworking, and ethical, and they are our true heroes who place their lives in danger every day to protect us from harm. It is a shock to the heart and minds of honest people when it is uncovered that a police officer has broken his or her oath, and strayed into the world of criminal behavior. It shakes the very foundation of safety for society and disturbs the senses so much that it sends a scream of terror through the air of morality.

We value our police forces and give them so much consideration and benefit of the doubt, and we understand the work they do is fraught with danger for them and their families.

But when you see instances of Use of Force like the Rodney King incident, you have to ask the very hard questions of how far will we let them go?

SUPREME COURT OF THE UNITED STATES

Nos. 94-1664 and 94-8842, STACEY C. KOON, PETITIONER 94-1664 v. UNITED STATES LAURENCE M. POWELL, PETITIONER 94-8842

On writs of certiorari to the United States court of appeals for the ninth circuit

[June 13, 1996]

Justice Kennedy delivered the opinion of the Court.

The petitioners' guilt has been established, and we are concerned here only with the sentencing determinations made by the District Court and Court of Appeals. A sentencing court's departure decisions are based on the facts of the case, however, so we must set forth the details of the crime at some length.

On the evening of March 2, 1991, Rodney King and two of his friends sat in King's wife's car in Altadena, California, a city in Los Angeles County, and drank malt liquor for a number of hours. Then, with King driving, they left Altadena via a major freeway. King was intoxicated.

California Highway Patrol officers observed King's car traveling at a speed they estimated to be in excess of 100 m.p.h. The officers followed King with red lights and sirens activated and ordered him by loudspeaker to pull over, but he continued to drive. The Highway Patrol officers called on the radio for help. Units of the Los Angeles Police Department joined in the pursuit, one of them manned by petitioner Laurence Powell and his trainee, Timothy Wind.

King left the freeway, and after a chase of about eight miles, stopped at an entrance to a recreation area. The officers ordered King and his two passengers to exit the car and to assume a felony prone position—that is, to lie on their stomachs with legs spread and arms behind their backs. King's two friends complied. King, too, got out of the car but did not lie down. Petitioner Stacey Koon arrived, at once followed by Ted Briseno and Roland Solano. All were officers of the Los Angeles Police Department, and as sergeant, Koon took charge. The officers again ordered King to assume the felony prone position. King got on his hands and knees but did not lie down. Officers Powell, Wind, Briseno and Solano tried to force King down, but King resisted and became combative, so the officers retreated. Koon then fired taser darts (designed to stun a combative suspect) into King.

The events that occurred next were captured on videotape by a bystander. As the videotape begins, it shows that King rose from the ground and charged toward Officer Powell. Powell took a step and used his baton to strike King on the side of his head. King fell to the ground. From the 18th to the 30th second on the videotape, King attempted to rise, but Powell and Wind each struck him with their batons to prevent him from doing so. From the 35th to the 51st second, Powell administered repeated blows to King's lower extremities; one of the blows fractured King's leg. At the 55th second, Powell struck King on the chest, and King rolled over and lay prone. At that point, the officers stepped back and observed King for about 10 seconds. Powell began to reach for his handcuffs. (At the sentencing phase, the District Court found that Powell no longer perceived King to be a threat at this point).

At one minute five seconds (1:05) on the videotape, Briseno, in the District Court's words, stomped on King's upper back or neck. King's body writhed in response. At 1:07, Powell and Wind again began to strike King with a series of baton blows, and Wind kicked him in the upper thoracic or cervical area six times until 1:26. At about 1:29, King put his hands behind his back and was handcuffed. Where the baton blows fell and the intentions of King and the officers at various points were contested at trial, but, as noted, petitioners' guilt has been established.

Powell radioed for an ambulance. He sent two messages over a communications network to the other officers that said `ooops' and `I havent [sic] beaten anyone this bad in a long time.' 34 F. 3d 1416, 1425 (CA9 1994). Koon sent a message to the police station that said `U[nit] just had a big time use of force. . . . Tased and beat the suspect of CHP pursuit big time.'  Id., at 1425.

King was taken to a hospital where he was treated for a fractured leg, multiple facial fractures, and numerous bruises and contusions. Learning that King worked at Dodger Stadium, Powell said to King: `We played a little ball tonight, didn't we Rodney? . . . You know, we played a little ball, we played a little hardball tonight, we hit quite a few home runs. . . . Yes, we played a little ball and you lost and we won.'  Ibid.

Koon, Powell, Briseno, and Wind were tried in state court on charges of assault with a deadly weapon and excessive use of force by a police officer. The officers were acquitted of all charges, with the exception of one assault charge against Powell that resulted in a hung jury. The verdicts touched off widespread rioting in Los Angeles. More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $1 billion in property was destroyed. New Initiatives for a New Los Angeles: Final Report and Recommendations, Senate Special Task Force on a New Los Angeles, Dec. 9, 1992, at 10-11.

On August 4, 1992, a federal grand jury indicted the four officers under 18 U.S.C. § 242 charging them with violating King's constitutional rights under color of law. Powell, Briseno, and Wind were charged with willful use of unreasonable force in arresting King. Koon was charged with willfully permitting the other officers to use unreasonable force during the arrest. After a trial in United States District Court for the Central District of California, the jury convicted Koon and Powell but acquitted Wind and Briseno.

We now consider the District Court's sentencing determinations. Under the Sentencing Guidelines, a district court identifies the base offense level assigned to the crime in question, adjusts the level as the Guidelines instruct, and determines the defendant's criminal history category. 1992 USSG §1B1.1. Coordinating the adjusted offense level and criminal history category yields the appropriate sentencing range. Ibid.

The District Court sentenced petitioners pursuant to §2H1.4 of the United States Sentencing Commission, Guidelines Manual (Nov. 1992) (1992 USSG), which applies to violations of 18 U.S.C. § 242. Section 2H1.4 prescribes a base offense level which is the greater of the following: 10; or 6 plus the offense level applicable to any underlying offense. The District Court found the underlying offense was aggravated assault, which carries a base offense level of 15, 1992 USSG §2A2.2(a), to which 6 was added for a total of 21.

The court increased the offense level by four because petitioners had used dangerous weapons, §2A2.2(b)(2)(B). The Government asked the court also to add four levels for King's serious bodily injury pursuant to §2A2.2(b) (3)(B). The court found, however, that King's serious injuries were sustained when the officers were using lawful force. (At trial, the Government contended that all the blows administered after King fell to the ground 30 seconds into the videotape violated §242. The District Court found that many of those blows may have been tortious, but that the criminal violations did not commence until 1:07 on the videotape, after Briseno stomped King). The court did add two levels for bodily injury pursuant to §2A2.2(b)(3)(A). The adjusted offense level totaled 27, and because neither petitioner had a criminal record, each fell within criminal history category I. The sentencing range for an offense level of 27 and a criminal history category I was, under the 1992 Guidelines, 70 to 87 months' imprisonment. Rather than sentencing petitioners to a term within the Guideline range, however, the District Court departed downward eight levels. The departure determinations are the subject of this controversy.

The court granted a five level departure because the victim's wrongful conduct contributed significantly to provoking the offense behavior, §5K2.10 (policy statement). 833 F. Supp. 769, 787 (CD Cal. 1993). The court also granted a three level departure, based on a combination of four factors. First, as a result of the widespread publicity and emotional outrage which have surrounded this case, petitioners were particularly likely to be targets of abuse in prison. Id., at 788. Second, petitioners would face job termination proceedings, after which they would lose their positions as police officers, be disqualified from prospective employment in the field of law enforcement, and suffer the anguish and disgrace these deprivations entail.Id., at 789. Third, petitioners had been significantly burden[ed] by having been subjected to successive state and federal prosecutions. Id., at 790. Fourth, petitioners were not violent, dangerous, or likely to engage in future criminal conduct, so there was no reason to impose a sentence that reflects a need to protect the public from [them]. Ibid. The court concluded these factors justified a departure when taken together, although none would have been sufficient standing alone. Id., at 786.

The departures yielded an offense level of 19 and a sentencing range of 30 to 37 months' imprisonment. The court sentenced each petitioner to 30 months' imprisonment. The petitioners appealed their convictions, and the Government appealed the sentences, arguing that the District Court erred in granting the downward departures and in failing to adjust the offense level upward for serious bodily injury. The Court of Appeals affirmed petitioners' convictions, and affirmed the District Court's refusal to adjust the offense level, but it reversed the District Court's departure determinations. Only the last ruling is before us.

The Court of Appeals reviewed de novo whether the district court had authority to depart. 34 F. 3d 1416, 1451 (CA9 1994). The court reversed the five level departure for victim misconduct, reasoning that misbehavior by suspects is typical in cases involving excessive use of force by police and is thus comprehended by the applicable Guideline. Id., at 1460.

As for the three level departure, the court rejected each factor cited. Acknowledging that a departure for susceptibility to abuse in prison may be appropriate in some instances and that police officers as a group are susceptible to prison abuse, the court nevertheless said the factor did not justify departure because reliance solely on hostility toward a group of which the defendant is a member provides an unlimited open ended rationale for departing. Id., at 1455. The court further noted that, unlike cases in which a defendant is vulnerable to prison abuse due to physical characteristics over which he has no control, here the petitioners' vulnerability stemmed from public condemnation of their crimes. Id., at 1456.

As for petitioners' collateral employment consequences, the court first held consideration of the factor by the trial court inconsistent with the sentencing goals of 18 U.S.C. § 3553(a) because the factor did not speak to the offender's character, the nature or seriousness of the offense, or some other legitimate sentencing concern. 34 F. 3d, at 1453. The court noted further that because the societal consequences of a criminal conviction are almost unlimited, reliance on them would create a system of sentencing that would be boundless in the moral, social, and psychological examinations it required courts to make. Id., at 1454. Third, the court noted the ease of using the factor to justify departures based on a defendant's socio economic status, a consideration that, under 1992 USSG §5H1.10, is never a permitted basis for departure. As a final point, the Court of Appeals said the factor was troubling because petitioners, as police officers, held positions of trust they had abused. Section 3B1.3 of the Guidelines increases, rather than decreases, punishment for those who abuse positions of trust. 34 F. 3d., at 1454.

The Court of Appeals next found the successive state and federal prosecutions could not be a downward departure factor. It deemed the factor irrelevant to the sentencing goals of §3553(a)(2) and contradictory to the Attorney General's determination that compelling federal interests warranted a second prosecution. Id., at 1457. The court rejected the last departure factor as well, ruling that low risk of recidivism was comprehended in the criminal history category and so should not be double counted. Id., at 1456-1457.

We granted certiorari to determine the standard of review governing appeals from a district court's decision to depart from the sentencing ranges in the Guidelines. The appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion. Having invoked the wrong standard, the Court of Appeals erred further in rejecting certain of the downward departure factors relied upon by the District Judge.

The Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991-998, made far reaching changes in federal sentencing. Before the Act, sentencing judges enjoyed broad discretion in determining whether and how long an offender should be incarcerated. Mistretta v. United States, 488 U.S. 361, 363 (1989). The discretion led to perceptions that federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances. S. Rep. No. 98-225, p. 38 (1983). In response, Congress created the United States Sentencing Commission and charged it with developing a comprehensive set of sentencing guidelines, 28 U.S.C. § 994. The Commission promulgated the United States Sentencing Guidelines, which specify an appropriate [sentencing range] for each class of convicted persons based on various factors related to the offense and the offender. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A (Nov. 1995) (1995 USSG). A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.

The Act did not eliminate all of the district court's discretion, however. Acknowledging the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances, see 28 U.S.C. § 991(b)(1)(B), Congress allows district courts to depart from the applicable Guideline range if the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C. § 3553(b). To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. Ibid.

Turning our attention, as instructed, to the Guidelines Manual, we learn that the Commission did not adequately take into account cases that are, for one reason or another, unusual. 1995 USSG ch. 1, pt. A, intro. Comment. 4(b). The Introduction to the Guidelines explains:

The Commission intends the sentencing courts to treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds a typical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. Ibid.

The Commission lists certain factors which never can be bases for departure (race, sex, national origin, creed, religion, socio economic status, 1995 USSG §5H1.10; lack of guidance as a youth, §5H1.12; drug or alcohol dependence, §5H1.4; and economic hardship, §5K2.12), but then states that with the exception of those listed factors, it does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case. 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Commission gives two reasons for its approach:

"First, it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refine the guidelines to specify more precisely when departures should and should not be permitted.

Second, the Commission believes that despite the courts' legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's data indicate made a significant difference in pre-guidelines sentencing practice. Ibid.

So the Act authorizes district courts to depart in cases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commission. The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not adequately taken into consideration, and factors that may make a case atypical provide potential bases for departure. Potential departure factors cannot, by their very nature, be comprehensively listed and analyzed in advance, 1995 USSG §5K2.0, of course. Faced with this reality, the Commission chose to prohibit consideration of only a few factors, and not otherwise to limit, as a categorical matter, the considerations which might bear upon the decision to depart.

Sentencing courts are not left adrift, however. The Commission provides considerable guidance as to the factors that are apt or not apt to make a case atypical, by listing certain factors as either encouraged or discouraged bases for departure. Encouraged factors are those the Commission has not been able to take into account fully in formulating the guidelines. §5K2.0. Victim provocation, a factor relied upon by the District Court in this case, is an example of an encouraged downward departure factor, §5K2.10, whereas disruption of a governmental function is an example of an encouraged upward departure factor, §5K2.7. Even an encouraged factor is not always an appropriate basis for departure, for on some occasions the applicable Guideline will have taken the encouraged factor into account. For instance, a departure for disruption of a governmental function ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a government function is inherent in the offense. Ibid. A court still may depart on the basis of such a factor but only if it is present to a degree substantially in excess of that which ordinarily is involved in the offense. §5K2.0.

Discouraged factors, by contrast, are those not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range. 1995 USSG ch. 5, pt. H, intro. comment. Examples include the defendant's family ties and responsibilities, 1995 USSG §5H1.6, his or her education and vocational skills, §5H1.2, and his or her military, civic, charitable, or public service record, §5H1.11. The Commission does not view discouraged factors as necessarily inappropriate bases for departure but says they should be