NO: Police suspended for alleged beating arrest

This isnt an OMVI case, so measuring BAC isnt necessary. Nor will we seek a search warrant, which would be needed to get a blood draw, because they cannot just be "ordered", for every public intox we pick up.
 
Rich ~

Let's just pretend that an arrest was justified and the defendant actually was drunk as a skunk.

Would that justify beating an unresisting subject to the ground, including multiple blows to the head?

pax
 
Pax-
Absolutely not. But, assuming said drunk defendant violently resisted, this video would not necessarily document brutality. Not to mention that it would virtually destroy the defendant's credibility as to what happened based on the statement of 25 years sobriety.

Note the word "necessarily" there. I haven't examined it frame by frame. Agreed though, from what we've seen, it looks pretty damning.
Rich
 
All right. So what we've got are four possibilities:

1) sober subject, nonresistant
2) sober subject, resists with violence
3) drunk subject, nonresistant
4) drunk subject, resists with violence

Three of the four possibilities involve some level of culpability for the LEOs involved. Either the arrest itself was bad, or their actions in effecting the arrest were bad, or both.

And the fourth one might involve some culpability, because of the head blows.

Anything wrong with the reasoning there?

pax
 
I have one more question about this........ I can spot the two NOPD men.... Both are wearing BDU type pants with thigh pockets and have shirts that say New Orleans Police across the back. Officer Smith is not involved in the struggle.

So......who are the other two fellows? The one in blue jeans on top of Mr. Davis and the guy in the photographer's vest? Are these the two federal agents who just "saw" the incident? :rolleyes:
100905_beat2.jpg
 
FBI investigating French Quarter beating

NEW ORLEANS (AP) — The FBI has opened up a civil rights investigation into the actions of three New Orleans police officers and two FBI agents who were involved in the bloody beating of a 64-year-old man accused of being drunk in the French Quarter.

The confrontation was captured on video tape. The footage also captured one of the officers, Stewart Smith, grabbing and shoving an Associated Press producer as his cameraman taped the confrontation.

The police officers involved — Smith, Robert Evangelist and Lance Schilling — have been suspended without pay and charged with simple battery. They pleaded not guilty to the charges.

The FBI agents, who have not been identified, were part of a detail assigned to assist local police in the aftermath of Hurricane Katrina.

FBI spokesman John Rook says the agents have not been suspended, but the local office has joined the NOPD's Public Integrity Bureau in an investigation of the beating.
 
Public Intox charges do not require a blood draw and I am unaware of jurisdictions that have a statutorily set BAC. The charge is based on the defendent's behavior and not the level of intoxication
Click to expand...

This is incorrect. Disorderly conduct (not alleged here)does not require a BAC but any charge including "intoxication" will require that the state prove that the accused was in fact "intoxicated" by something. Failure to do a BAC or tox screen results in the charge being tossed and a subsequent suit for civil rights violations/false arrest.

The observations of the officer are useful in determining if the arrest and subsequent testing are based on "reasonable suspicion" or probable cause but are NOT sufficient for proof beyond a reasonable doubt since there are medical conditions which can appear to be public intoxication on the surface. PC gets the officer to the point of being able to collect the PROOF that a crime was committed. PC itself is not proof of anything.
 
You may want to reference sec 2917.11 B and D, of the Ohio revised Code for starters

It is up to the trier of fact to determine based on the witnesses' testimony if the defendent was intoxicated.

Other than OMVI, please cite a statute that requires a tested BAC for prosecution of public intoxication. I'd like to read it. I for one have never heard of a PI charge being dismissed because there wasnt an intoxilizer test or blood test done, which seems to be what you are implying is required.
 
No coincidence that NOPD was disarming citizens prior to this. I'd want to disarm people too if I wanted to beat on them. On a similar note - is it any wonder the liberal Supreme Court Justices who seem to think it is OK for the government to take your property and give it to a business and the same Justices who think if you are very ill and dying and marijuana is all that works for you that that is too bad and just shut up and go die also are the same liberal Justices who no doubt want to disarm the people of the United States. I'd want to disarm them too if those were my goals. And of course they are just getting started.
 
Thats a blanket code provision which doesn't say what you'd like it to say. What it says is that it's the jury's (or judge if no jury) province to determine if the crime occurred, who to believe, and what evidence to use to make their decision with.

I can imagine a scenario:

Cop: "Yer honor, he was drunk in public."
Judge: "Can you prove that?"
Cop: "Yep, I saw him and he was drunk."
Defendant: "I wuz not."
Cop: "Wuz too."...

PROOF is more than "was, was not". It requires more than one persons testimony as to what they BELIEVE occurred. Proof requires evidence as to what REALLY happened. Convictions based upon no more than one persons testimony that they determined the accused to be guilty of a crime is akin to "guilty because I say you're guilty". That's not proof, nor is it justice.

If there is evidence to be had which will support the charge or exculpate the defendant and it was not collected, the defendants rights were violated and the conviction cannot stand.
 
"Your Honor, I observed the defendent walking south in the 300 block of Main street. He was not walking in a straight line, but moved from side to side and crossed his feet while walking. My training and past experience has found that people who have consumed an excess of an alcoholic beverage often walk this way. I approached the defendent, identified myself, and asked him if he was OK or suffering from a medical condition. He responded that he was fine at which time I heard him slur his speech and smelled an odor of an alcoholic beverage on his breath. He was swaying as he spoke. I asked the defendent if he had been drinking to which he responded that he had......."

I could go on, there is a little more to it than "wuz/wuz not :rolleyes:
 
Rob,
I'm not singling you out, but your post allows me to make an important point.
Since when do you have to be guilty to be prosecuted successfully in New Orleans? Since when does a man hire an attorney to fight a $150 Simple Drunk charge instead of paying the fine and being done with it? (Unless, of course, there are other charges filed along with it as is this case).

And finally, since when does the NOPD stop anyone for public intoxication on Bourbon Street?

New Orleans has the strangest set of kangaroo courts in the country. They also have some of the most indelibly corrupt law enforcement. There is an old saying...."We got a diff'rent way of doin' things down here" that would be parroted anytime a person begins to object. The political system of Louisiana doesn't have anything on the legal system of New Orleans. What the rest of our country is seeing now has been happening for over a century in New Orleans. That does not make it right, just historically wrong. It's a disgrace, and it needs to be cleaned up. Sometimes I think we need to just toss in the towel.
 
Derail Flag Thrown.
Your Honor, I observed the defendent walking south in the 300 block of Main street. He was not walking in a straight line, but moved from side to side and crossed his feet while walking. My training and past experience has found that people who have consumed an excess of an alcoholic beverage often walk this way. I approached the defendent, identified myself, and asked him if he was OK or suffering from a medical condition. He responded that he was fine at which time I heard him slur his speech and smelled an odor of an alcoholic beverage on his breath. He was swaying as he spoke. I asked the defendent if he had been drinking to which he responded that he had.......
Click to expand...

"Your Honor, then he became abusive and three of us beat him to the ground in front of TV Cameras and one of us roughed up and threatened the camera crew. Then we arrested him for PI, Assault on a PO, Resisting, Jay Walking and Overdue Library Books. Then we transported him to the hospital.

No, your Honor, we never thought to request or demand a BAC Level from the arrestee or the hospital staff. We thought you'd take our word for it. After all, we have no conflict of interest in this matter whatsoever."

:rolleyes:
 
"Your Honor, then he became abusive and three of us beat him to the ground in front of TV Cameras and one of us roughed up and threatened the camera crew. Then we arrested him for PI, Assault on a PO, Resisting, Jay Walking and Overdue Library Books. Then we transported him to the hospital.

No, your Honor, we never thought to request or demand a BAC Level from the arrestee or the hospital staff. We thought you'd take our word for it. After all, we have no conflict of interest in this matter whatsoever."
Click to expand...

+1

"He appeared to be intoxicated; we had to beat him into submission, so that he wouldn't hurt himself..."

~Dan
 
I got a kick out of Rich's example. :D

What's really funny is I just read an internet article where the lawyer for the 2 NOLA cops is saying that his clients state that they never hit Davis in the face and that his facial injuries are the result of the FBI agent knocking Davis to the ground. Talk about lying scum! The video clearly shows them hitting him the face while trying to arrest/subdue him.

The second interesting tidbit was that S.M. Smith states that the TV newsguy grabbed him from behind and spun him around and that he (smith) was justified in doing what he did because of that. Again, I say BULLSNOT! The video clearly shows Smith several feet away from the TV guy and then charging him and then pushing him backwards over the car.

I don't know why people think that they can lie and deny when video evidence shows differently. Worse, this whole incident will only serve to prove that LE as a whole is not trustable. I'm sure that there are trustable officers out there somewhere (I've not met one but the odds are that it's true) who are gonna get a bad rap from this.

Da linky:

http://news.yahoo.com/s/ap/20051012/ap_on_re_us/new_orleans_taped_beating
 
Xavier, it is my understanding (from talking to my wife) that a proscribed chain of custody must be maintained.

Now it may be different in other jurisdictions, but in Idaho, the police (or the suspect) must orally request the BAC. The draw is made and is sealed in a specific baggie and the phlebotomyst and the officer (or the suspect) sign the baggie. The baggie is transported to the lab and delivered to the technician. The tech signs a receipt for the specimen and runs the test. Test is printed out, signed by the tech and sealed in another baggie. (the tech may not do any other testing or procedures while this BAC is being run) When the completed test is picked up, usually by the DA (or in this case the suspects attorney), it is again signed for.

Chain of Custody is involved and costs more than a normal test, because of the procedures that must be followed.

This is not to say that a court may not accept a standard BAC test. Just that to preserve the test and results as non-controvertible evidence, the CoC must be preserved.
 
Gotcha Al.
It's really the signatures of the LEO/suspect and the DA and the bagging of the results then, since the rest remains essentially the same.

I was thinking the blood may have had to be drawn in front of a police officer or something, which would not be the case in other COC procedures done in the ER such as rape kits. I digress though.......thanks for the clear answer.

For added interest, here is a study module for Evidence Collection and Preservation in a Healthcare Setting. I have not read through it yet, but it might be interesting. I just read it, nothing on blood collection.....
 
*sigh* I can't believe I didn't catch this thread sooner, but there are just some days that I can't bring myself to open these cop threads. In this particular case, I have a problem with trying and convicting someone, anyone, cop, civilian, dictator, politician (:p ), whoever, in the media or on the Internet. A decade ago, I would have had second thoughts about trusting N.O.'s Internal Affairs to do the job, but they seem to have cleaned up their act, and I'll withhold judgement until ALL the facts are in, although I'll admit, at this point, it looks pretty bad.

But on to the Intox issue, there is a distinct difference between what qualifies for OMVI or DUI, and public intoxication. Mind you, I can only speak for Ohio law. DUI laws are complex and lengthly, and that's not the issue here, so I'll only touch on that lightly. A traffic violation and field sobriety tests are required to establish probable cause for an arrest for suspicion of DUI. The arresting agency must then pursue either a blood, breath, or urine test to establish DUI, and under most circumstances, the agency CAN order the hospital to perform said tests, although the attending physician can dictate which test to perform. However, if the defendant refuses the test, either outright or by deception (attempting to defeat a BAC machine, for example), he faces an automatic suspension of his license for (implied) DUI. This is from the Ohio Revised Code Section 4511.191 and is termed the law of implied consent, wherein when you signed for your driver's license, you agreed to the test if arrested for suspicion of DUI. Overall, the point is, yes, there must be physical evidence of DUI.

Public intoxication, however, is a whole different ball game. A charge of PI falls under the same statue as disorderly conduct (ORC Sec. 2917.11), and requires behavior consistant with disorderly. It is NOT illegal to be simply intoxicated in a public place. It's intoxication coupled with disorderly behavior that qualifies. Now here's the kicker: If a person appears to an ordinary observer to be intoxicated, it is probable cause to believe that person is voluntarily intoxicated. There need be no further evidence to affect an arrest. Here is the entire statue as published by Anderson's Ohio Revised Code Online.

http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC

§ 2917.11. Disorderly conduct.

(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:

(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;
(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person;
(3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response;
(4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of the offender;
(5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.


(B) No person, while voluntarily intoxicated, shall do either of the following:
(1) In a public place or in the presence of two or more persons, engage in conduct likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of ordinary sensibilities, which conduct the offender, if the offender were not intoxicated, should know is likely to have that effect on others;
(2) Engage in conduct or create a condition that presents a risk of physical harm to the offender or another, or to the property of another.


(C) Violation of any statute or ordinance of which an element is operating a motor vehicle, locomotive, watercraft, aircraft, or other vehicle while under the influence of alcohol or any drug of abuse, is not a violation of division (B) of this section.
(D) If a person appears to an ordinary observer to be intoxicated, it is probable cause to believe that person is voluntarily intoxicated for purposes of division (B) of this section.

(E) (1) Whoever violates this section is guilty of disorderly conduct.
(2) Except as otherwise provided in division (E)(3) of this section, disorderly conduct is a minor misdemeanor.
(3) Disorderly conduct is a misdemeanor of the fourth degree if any of the following applies:
(a) The offender persists in disorderly conduct after reasonable warning or request to desist.
(b) The offense is committed in the vicinity of a school or in a school safety zone.
(c) The offense is committed in the presence of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person who is engaged in the person's duties at the scene of a fire, accident, disaster, riot, or emergency of any kind.
(d) The offense is committed in the presence of any emergency facility person who is engaged in the person's duties in an emergency facility.
(F) As used in this section:
(1) "Emergency medical services person" is the singular of "emergency medical services personnel" as defined in section 2133.21 of the Revised Code.
(2) "Emergency facility person" is the singular of "emergency facility personnel" as defined in section 2909.04 of the Revised Code.
(3) "Emergency facility" has the same meaning as in section 2909.04 of the Revised Code.
(4) "Committed in the vicinity of a school" has the same meaning as in section 2925.01 of the Revised Code.
Click to expand...
 
You must log in or register to reply here.
Back
Top