When the Cop Says Stop — you better stop!

Cycling lawyer” (um, can I have that job, please?) Bob Mionske relates the fascinating story of an out-of-control cop harassing two cyclists in Ohio. He appears to have tried to stop them for no reason, and when they wouldn’t stop he pulled his taser. One of the cyclists ended up getting tazed multiple times. Charges were eventually dismissed and the cyclists are filing a civil suit, but the story illustrates what can happen when men with guns and badges lose control.

Aside from the abuse of police authority, the story grabbed me because in the end, Mionske concludes that:

if the order is unlawful, the cyclist is not required to obey the order, and can’t be arrested for failure to comply. Now, this is the law in Ohio, but it is based on 4th Amendment jurisprudence, so the jurisprudence in other states should be similar. If somebody knows of contradictory 4th Amendment jurisprudence in another state, please let me know.

Um, well, my experience defending more than one obstructing charge is that, if the officer tells you to stop, you better stop. If you don’t, you could end up with an obstructing charge — or worse. Basically, if you disobey a police order — even where the order is unlawful — your ass is getting arrested. Sure, it might be sorted out later and the charges *may* be dismissed, but is it worth going to jail for the night or however long it takes to post bail? No. Just stop. The officer can be the biggest dumbass on the planet, but again, that’s something to sort out later. If the officer here had been our friendly neighborhood cop Johannes Mehserle who claims he confused his taser and his gun, these poor cyclists would be dead, not just dismayed.

As just one example of an illegal stop that escalates to legit criminal charges, see People v. Thomas, 198 Ill. 2d 103; 759 N.E.2d 899 (2001). There, Mr. Thomas was riding his bicycle while carrying a police scanner. An officer tried to stop Mr. Thomas and Mr. Thomas fled. Eventually, officers caught up w/Mr. Thomas and arrested him. They found drugs and he was convicted of possession w/intent. On appeal, the Illinois Supreme Court found that, although the officer’s initial order for Mr. Thomas to stop was not legal (b/c the officer lacked any reasonable suspicion that Mr. Thomas was engaged in illegal activity), the subsequent seizure of Mr. Thomas was legal because he fled and was seized after flight. The flight became a legitimate (legal, constitutional) reason for the seizure.

Following that logic, in the case of the Ohio cyclists, even though the officers initial orders for them to stop were ambiguous and clearly illegal, a court could have found that the subsequent actions amounted to resisting, obstructing, or some other criminal act. They’re lucky the prosecutor didn’t think of adding such charges or they might have been in a different position.

Police have far too much authority in our society, but that’s exactly why you better stop if an officer tells you to. Stop, cooperate, and figure out the legality of it all later.

Defending “The Man”

Congratulations to defense attorney Michael Rains and the defense team for Johannes Mehserle on getting a verdict of involuntary manslaughter for the shooting of Oscar Grant. I didn’t follow the case closely, but based on the headlines I’ve heard, the defense must have been amazing to get this result. Example:

The verdict followed a three-week trial in which prosecutors played videos by bystanders, and witnesses recounted hearing the frightening gunshot that killed Grant.
At least five bystanders videotaped the incident
Mehserle, 28, testified that he struggled with Grant and saw him digging in his pocket as officers responded to reports of a fight at a train station. Fearing Grant may have a weapon, Mehserle said he decided to shock Grant with his Taser but pulled his .40-caliber handgun instead.

It’s easy for criminal defense attorneys to see police as the enemy — it’s the cops who stop and arrest our clients, the cops who testilie and put our clients in jail and prison — so defending a police officer could be a moral challenge for some defense attorneys. Apparently not for Mr. Rains.

On the other hand, the reason the state wins so often is because judges and juries tend to believe cops over everyone else no matter what the other evidence suggests. With that in mind, I’m sure people will argue that the defense work here was just a matter of showing up and not screwing anything up too badly. (Imagine, for example, that the facts were reversed and Mehserle was the civilian who shot a police officer — getting involuntary manslaughter on that would really be amazing.) But even a serious jury bias in favor of the police cannot explain this verdict. The defense team convinced a jury that Mehserle confused his gun with his taser. That’s completely unbelievable, not only because the gun definitely weighs far more than the taser, but because an officer carries these two weapons in different places. It’s not like they are identical and sit side-by-side on his hip. Finally, Mehserle didn’t come up with this defense at the scene, nor was there any evidence that he was claiming this mistake until after he’d talked to his attorney. The fact that the jury came in with an involuntary verdict on those facts is nothing short of amazing.

The San Francisco Chronicle is trying to dampen public unrest by arguing that this was the appropriate verdict. Perhaps it was, but even if so, that doesn’t make it easier to accept that a cop gets a slap on the wrist for shooting a man in the back for no reason.

Anyway, great job, Mr. Rains, great job.