Hi Michelle:
I hope you’re well. I’ve been waiting for a good civil rights violation case after reading your excellent advice. I believe I finally have one. A summary of the facts is below. Tell me what you think.
All my best,
Haytham
Ms. Khalil and her son are Caucasian Americans. Her husband, Maged Khalil, is Egyptian. He is Alexander’s step-father. Alexander was born on April 19, 1992. He is 18 years old. Ms. Khalil is Muslim and wears hijab –religious hair scarf.
On Sunday, May 9, 2010, Alexander failed to yield and got into a car accident. He was taken to the hospital, but had no injuries. While at the hospital, Alexander was questioned by Officers John Redstone and Richard Dawes regarding the accident. When Ms. Khalil arrived, the two officers were rude and abrupt with her. She says they were also badgering her son and attempting to coerce him into saying certain things regarding the accident. She asked them to not speak to him because he did not have an attorney present. Officer Richard Dawes said to her “You need to leave. He is an adult,” to which she responded “but I am his mother. I will not leave.” They continued in this exchange and the officer was rude, muttered an insult, which she did not fully hear. She told Officer Dawes that he was a “bully behind a badge.”
The officers had found some cannabis in Alexander’s car, but told him that they would not arrest him for it. However, because the officers had been so rude to her, on their way home from the hospital, Ms. Khalil decided to go to the Police Station to file a complaint against them. By the time she’d arrived, Officer John Redstone was there, and became irate when he heard Ms. Khalil at the window asking for a complaint form and saying his name. He stormed passed her, grabbed Alexander who was in the car, threw him on the ground, and said “you’re being arrested because your mother is a Muslim bitch and if she thinks she’s going to get me fired, she’s got another thing coming.” He threatened to beat Alexander up. And Alexander told him to beat him up where everyone would see it. Officer Redstone dragged Alexander inside. When Ms. Khalil jumped from in front of the window, asking about what was happening, Officer Redstone responded, “he’s being arrested bitch, now get out of my way or I’ll arrest you for obstruction of justice.” When they went inside, Ms. Khalil heard a loud bang. Her son was screaming. “Please stop, I’m so sorry.” Ms. Khalil started screaming, “he hurt him, he hurt him!” As Officer Redstone was kicking him, he repeated “this wouldn’t be happening if you’re mother wasn’t a bitch.” She turned to the two Officers sitting outside and yelled, “please help my son.” The two Officers looked at each other and said, “I don’t hear nothing.” When Officer Redstone came out, he was out of breath and screamed at her to get out. She yelled at him and said “you’re a bad, bad man.” And he replied, “You’re a bad Muslim. Get this Muslim bitch out of my department.”
Her husband posted bail for Alexander, and they took him straight to the hospital, because he had suffered injuries. These included a bruise on his face, more bumps and bruises, a big bump on the back of his head, and possible broken ribs. (The doctor told them that broken ribs could take weeks to show up on an x-ray and that if the pain continued, Alexander should return for another x-ray.) He also had a rope burn around his neck from his necklace (when Officer Redstone had pulled him from the floor) and cuts around his wrist from being cuffed and pushed around. Alexander told Ms. Khalil, “Mom, I couldn’t put my hands in front of my face when he was punching me, and I couldn’t break my fall when he threw me on the floor. I just fell on my head.” Alexander went to school for half the day on Monday and could not go on Tuesday as a result of his physical and psychological state. He and his mother have been suffering from nightmares in relation to the beating. Officer John Redstone, upon arresting Alexander, had told him that he was arresting him because of the cannabis. When his mother had said that the Officer had already said he wouldn’t arrest him, he replied, “I changed my mind.”
Ms. Khalil’s husband went with Alexander on Tuesday, May 11, 2010 to the Police Station to pick up the car. When they received the papers, they found it said that Alexander had been arrested at the scene of the crime and that is why the car was towed. Ms. Khalil went back into the Police Station to explain that this was not true.
They refused to change it. The lady at the window, according to Ms. Khalil was very nice and let her call them Police Chief for a hearing. But when they met him, he said, “I’ll tell you what my decision is, before you say anything. I’m not changing it.” The Police Chief denies that the beating happened. Also, when Ms. Khalil had initially told the Sergeant at the Police Station, he said, “I’m not listening to this crap.”
From: michelle.r.burrows@gmail.com [mailto:michelle.r.burrows@gmail.com] On Behalf Of Michelle Burrows
Sent: Sunday, November 15, 2009 9:00 PM
To: Haytham@puckettfaraj.com
Subject: Civil Rights
Haytham,
You left so fast I didn't have time to say goodbye. I hoped to have time to talk a little more with you--but alas lost opportunities rarely re-present themselves. I am staying in Dallas until Wednesday for depositions and some new client meetings. And likely I'll be working in between all that stuff. First, I wanted to thank you for your very keen insight in my case work--that case, especially the issues we worked on, have been troubling me for some time. I was grateful to have other folks see the same situation I did. Thank you.
I wanted to make sure I gave you the information you asked of me in a more cogent and thoughtful manner. The Bible of 1983 litigation, primarily police practices based cases--is Schwartz, 1983 Litigation, a 4 volume set, but don't waste money on the jury instructions section. The total cost of all four volumes is about $800, but its the updates which will really kill you. It's not on line so the set will look pretty in your law library. Secondly, the PLI October civil Rights seminar in New York is the single best CLE in the country--it's usually in a pretty decent hotel, but hell it's New York and how can you lose. PLI also publishes the extraordinary written documents from all the annual civil rights conferences and you should seriously purchase as many years as you can. The sections on force and qualified immunity show the development of these very heavily litigated areas.
Please join--if you have not already--NPAP, National Police Accountability Project through the National Lawyers Guild. NPAP is populated by the best, the very very best civil rights lawyers in the country (and the worst, I'll tell you which names to ignore)--the database of cases and briefs is unmatchable. I think they make you join the National Lawyers Guild first. I get freebies if you use my name as a reference.
You should also visit the website for the IACP, International Association of Police Chiefs. This association receives funding and a national mandate from the Bureau of Justice Assistance with the DOJ to create and promulgate national standards for police agencies including arrest, force, tasers. The standards are generally used as the foundation for policies and procedures in local agencies. You should purchase all five volumes because they are not organized into real well defined areas and important topics are in each of the volumes. My use of force expert Dr. Michael Lyman is one of the authors of some of the chapters. I can give you his contact information if you need a police practices and use of force expert. I also have his c.v. with me and a use of force report he did in my big bad ass shooting case. He's very very expensive, but worth it.
You should get your hands on the policies and procedures for the local agencies you are suing or intend to sue--these could be the basis for a good monell claim. You should get the training manuals from the state police academy especially on force, arrest, probable cause, tasers or electronic devices. Don't forget the FTEP manuals--field training--
You also need to get Versions 10-present of the Taser International training discs, manuals and videos--both student and instructor versions. I have them both on my laptop and on disc. Emily, my investigator, can get those to you if you want. My taser expert is the only nationally certified taser master instructor with Taser International, he's a forensic scientist (guns, ammo and tasers) with the Washington State Police. Rick Wyant at Less Than Lethal--they have a rather awesome website--or they did. Rick has published studies on Tasers and he did the study which showed that Tasers burn up after a continuous 3 minute deployment. Fucking awesome stuff.
Taser has started a new product--called stupidly Taser Cam--but it is amazing. I went to a Taser Conference in April on this new technology but we got kicked out. Very weird and slightly scary story--more on that later. Taser Cam utilizes a camera on each Taser--I think the M26 model and records visual to a disc which is uplinked with an off site data storage unit. I have some real excitement about both the camera and the uploaded "evidence"--they think they have solved all the chain of custody issues--ha.
If you have not already received training--please think about taking taser training and being tased. Especially you would find this will give you a real edge over the cops in depositions. I am putting on a taser training with Rick for the Washington TLC folks--hopefully soon. I think Rick will do it for cheap so the price of the training is going to be about $150. I would like to do this in January or so at Karl Malling's office. I'll send you an email if we get this pulled together.
I teach a six week Advanced Litigation Seminar on Civil Rights Litigation--mostly police force/arrest cases. I will see if the ACLU has the latest version of our materials and can get that to you--I think electronically. This is a very, very basic manual but we use it for folks who have a lot of litigation experience and want to break into civil rights law. I have my chapter on the 4th Amendment and Monell with me if you want a headstart--but I don't have the chapters on qualified immunity or the basic 1983 primer.
If you want to do prisoner work--let me know, I have a whole lot of other material on that.
This may seem pendantic but get the advanced sheets or case opinions from your circuit court--not sure what Michigan is--my mind cannot accept Michigan as a real place--I went to Ohio State and the word Michigan cannot pass my lips easily. I would for curiousity sakes take a look at the Ninth Circuit--the most liberal and progressive circuit on this law--that's my circuit. Read these at least weekly--the law changes so fast especially Monell, use of force and qualified immunity.
As a start here's what I would recommend if you worked for me or with me: get on Pacer and read the briefing in my cases Kaady et al v. Bergin et al, shooting/taser/death case in front of Judge Papek. Good briefing on a very long list of arcane federalism subjects (standing, pre-emption, survivability of claims, use of force, deadly force) I would read the defendants motion sj, our response and all the exhibits, motion to strike exhibits and Judge Papek's Nov. 08 opinion. (This is the case Gerry asked me to do with him). Dunn v Magana, Judge Coffin. This is a police rape, use of force case where the city refused to indemnify the cop who raped about 45 women with the power of his badge. We got Monell liability on the "informal policy" prong--but my briefing talks about all the different Monell prongs.
Both Kaady and Dunn address qualified immunity also. I have several other cases where I obtained very good written opinions on the relation back doctrine, qualified immunity, ratification theory of Monell--but if you want those please ask or just run my name through Pacer. In those cases you will find what you already know but have the case cites to help you.
In force cases--please forgive me if I seem a little presumptuous here--make sure you know and can recite Graham v. Connor and Tennessee v. Garner and all the subsequent opinions. Know these two cases and what they have become to mean--these are all you really need on force and deadly force. Qualified immunity start with Saucier v. Katz, Hope v. Pelzer and Pierson--I think that's the last one. I don't think I have the last one right--let me look it up--it's not that important but the defense cites it like the last testament these days.
I started defending cops and evolved into suing them. It is a very difficult and complex area of the law and changes all the time. I have been approached by a lot of lawyers who want to learn this area of the law and some of whom want to work with me. I want to help but I always give this particular unsolicited piece of advice. It's difficult, it's sometimes like fighting the entire world in one small microcosm of time. You have to be tough, creative, willing to do everything and do it again. You will spend hundreds of hours on these cases and spend a lot of money. Kaady has cost thus far about $150,000. We settled with one cop and still have one to go. Dunn cost me about $50,000. You need to talk to everyone, several times. You need to go through the dispatch records, the police reports, the on board data information from the Mobile units, the data chip from the tasers, and prepare for depositions with intensity--think about deposing your cops in front of videocamera. Use a great investigator and do most of your own investigation at some point. Reenact every situation over and over again. The Supreme Court opines these cases must be evaluated in a temporal analysis--to assess the evolving facts known to the officer--so do a reenactment, time it, do a timeline--use the object data from the records I mention and then put the cops on the spot. Don't do depositions like cross--do them to win the Motions SJ--because that's what's coming next and if you lose that, you lose the case.
And finally--make sure you damned well know Terry stops, probable cause, the criminal charges facing your client (if any) and why the cop made those decisions. You need to be a criminal defense attorney throughout the 1983 case. Make sure you like your client and LOVE your case.
So, that's all for now. Sorry it's so long.
I joined your group yesterday on purpose--hey there's no secret. I am always looking for some lawyer to work a case with--I have worked with a few and I'm in the middle of a big, big case with someone who has little interest in learning or working after she begged me to teach her--I work really, really hard on my cases. I'm thinking of asking her to step aside. But I do get asked a lot to work with folks. I'm a little busy now, but I want to give as much as I can to as many folks as I can.
I have had a very significant year and it's my turn to give back. So, if you need anything more from me please ask.
Finally, on a personal note, I really liked you. In the very short time we spent I think you possess a lot of what it would take to be especially good in these cases. And you're smart, interesting and easy to look at.
Good luck and call me if you need anything more.
Michelle
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