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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