The Litigation Force Continuum: When Officer Presence Is Not Enough.
I love the practice of law. I am honored and proud to be a member of a profession that takes an oath to zealously represent the rights of others. However, practicing law often means staying in the office, writing briefs and speaking with people on the phone. This is the “necessary part” of practicing law that is not as exciting as standing in a courtroom advocating for a client. It may not be fun to watch and no one is going to make a movie about a lawyer speaking with clients and reading case law. However, lawyers are taught that at all times, in every environment, we must act as professionals.
In this regard, lawyers are a lot like LEOs. You have building checks on morning watch, traffic details on day shift and surveillance any hour of the day. I have yet to see a Hollywood blockbuster about a property crimes detective checking pawn shop records at her desk looking for stolen jewelry and I do not expect to do so in the future. However, that is the “necessary part” of law enforcement and at all times, we expect LEOs to look and act as professionals.
As one of my instructors in the police academy stated, “A career in law enforcement can be described as long periods of boredom highlighted by brief moments of sheer terror.” This is where the parallel to practicing law gets a bit thin. However, as I do not chase cars anymore, I need my adrenalin rush from some source. As my wife has expressed her sheer displeasure with the concept of a bungie jump, I rely on the courtroom for my excitement. It may not be as much fun, but the trade off is that no one is likely to try to shoot or stab me. A stern and pointed objection from opposing counsel just does not seem as threatening as an edged weapon.
The presence of a LEO, like the presence of a lawyer, is usually enough to prevent escalation of a situation. The more professional the LEO in appearance, demeanor and focused efforts to maintain order, the more effective he will be. In litigation, as on the street, sometimes officer presence is not enough and professional escalation of force is warranted, authorized and expected.
This week, I was asked to defend a LEO who was forced to take a life when a suspect attacked him on a traffic stop and attempted to disarm him. Some 16 months after the incident, a member of the suspect’s family attempted to take a warrant for the arrest of this LEO. In compliance with Georgia law, this prompted a hearing before a Superior Court judge. At the conclusion of the 6 hour hearing, the judge ruled that the shooting was justified, there was no probable cause that the officer committed a crime and he denied the applicant’s request for a warrant. You can read more Deal-Dublin Courier Herald-09-09-11 and see more at the highlighted links.
I know LEOs would rather be out of the spotlight and just do their jobs. I also know that the day a LEO takes a life in the performance of her duties is likely the most horrifying day of her life. While LEOs and their chiefs and sheriffs would rather let the official reports and dash camera footage speak for itself, sometimes you must escalate up the litigation force continuum to protect yourself, your reputation and the integrity of the process. When you do, be professional, be focused and come prepared to win. I believe the representation of a LEO in a critical incident should begin with the presence of attorney at the scene. I am happy to let my “attorney presence” suffice to keep order. However, sometimes that is not enough.
As much as I am honored and proud to be an attorney, I am humbled that this LEO and others place their confidence in me to protect their interests. I hope all of you have an attorney available to represent you. I encourage you to learn more about the Fraternal Order of Police and the Legal Defense Plan made available to members. Like any encounter that goes bad on the street, you must prepare in advance to defend yourself in a courtroom.
At the end of the hearing, my client left the courtroom. The truth about the worst day of his life, the day he nearly lost his life, was presented in a public courtroom. Through the court’s ruling, a weight was lifted from his shoulders. He is on patrol in his community and will watch over everyone, even his accusers, tonight and many nights in the future. May God watch over him and all of you as you do a job few in our society would choose or are able to perform.