Wednesday, April 14, 2021

Fatal police shooting of Daunte Wright in Minnesota raises this troubling question: How on earth does a 26-year veteran officer mistake a gun for a taser?

Daunte Wright protest


A Minnesota police officer fatally shot Daunte Wright, a 20-year-old black man, during a traffic stop on Sunday in the Minneapolis suburb of Brooklyn Center, with news reports indicating the oficer meant to grab a taser instead of firing with her gun. That this could happen during an already tense time, with Derek Chauvin on trial for murder in the police-related death of George Floyd, boggles the mind. Even more unbelievable is this: The mistaken use of a gun over a taser is not a new issue in law enforcement.

Officer Kim Potter has submitted a resignation letter, but she leaves behind this question: How does a 26-year veteran of the police force mistake a gun for a taser? It apparently happens more than many of us might imagine. From a 2015 Associated Press report titled, "Stun gun or handgun: How often do police get confused?":

Robert Bates, the volunteer sheriff's deputy who killed an unarmed suspect in Tulsa, Oklahoma, on April 2, says he accidentally fired his handgun when he meant to deploy his stun gun. Bates pled "not guilty" to second-degree manslaughter charges at a court hearing Tuesday. He apologized for killing Eric Harris last week but described his deadly mistake as a common problem in law enforcement, saying: "This has happened a number of times around the country. ... You must believe me, it can happen to anyone."

Bates' statement does not appear to be altogether accurate:

Experts agree this is a real but very rare occurrence that probably happens less than once a year nationwide. A 2012 article published in the monthly law journal of Americans for Effective Law Enforcement documented nine cases in which officers shot suspects with handguns when they said they meant to fire stun guns dating back to 2001. The list included three instances in California and one each in Minnesota, Maryland, Arizona, Washington, Kentucky and Canada. For perspective, Taser International says its stun guns have been deployed more than 2.7 million times in the field.

Still, how do such mix-ups happen at all?

The way officers carry their weapons, how officers are trained and the stress of dangerous, chaotic situations have been cited. To avoid confusion, officers typically carry their stun guns on their weak sides, away from handguns that are carried on the side of their strong arms. A right-handed officer, for instance, would carry his handgun on his right and his stun gun on his left. In many of the documented cases of confusion, however, the two weapons were holstered near each other on the officers' strong side. . . . 

Bill Lewinski, an expert on police psychology and founder of The Force Science Institute in Mankato, Minnesota, has coined the phrase "slip and capture" errors to describe them. Lewinski, who has testified on behalf of police, has said officers sometimes perform the direct opposite of their intended actions under stress — their actions "slip" and are "captured" by a stronger response. He notes that officers train far more often on drawing and firing their handguns than they do on their stun guns.

Other experts are critical of his theory, calling it junk science and arguing that well-trained officers should not confuse the two weapons.

A 2016 AP report shows such incidents can have an awful mix of tragedy and (for lack of a better word) comedy:

When Alfred Olango pulled out an object from his right pocket last month and assumed a shooting stance in a strip mall parking lot in a San Diego suburb, one officer opened fire with his pistol. The other officer simultaneously stunned Olango using his Taser.

Civil rights advocates say the different response by officers facing the same suspect illustrates a breakdown in police training and communication and shows that some officers are too quick to turn to deadly force.

The Sept. 27 shooting death of the 38-year-old Ugandan refugee who turned out to be wielding an electronic cigarette device came 11 days after another unarmed black man, 40-year-old Terence Crutcher, died in Tulsa, Oklahoma after being shot by two officers also simultaneously firing a gun and a Taser.

“I think when one police officer feels it is appropriate to use a less lethal weapon like a Taser, and the other officer feels like the person has to be killed — it suggests a real divergence in training,” said Ezekiel Edwards, director of the American Civil Liberty Union’s criminal law reform project.

He added: “I think it highlights that we have a serious problem in this country, which has been seen played out over and over again with police using lethal force in circumstances where it is not necessary and not justified.”

Susan Zhang, writing at Truthout, says there is reason to doubt the Minnesota cops' stories:

The police officer who shot Wright alleges that she had meant to pull out her taser but pulled out her gun instead. Many have cast doubt on that narrative, however; as news outlets like The New York Times have noted, tasers and the type of gun the officer killed Wright with feel very different in hand. They’re also typically worn on opposite sides of an officer’s hip to avoid confusion.

“Not. An. Accident. Why was this cop wanting to pull a taser on a 20-year old kid for expired tags in the first place? Absurd,” wrote leader of the Congressional Progressive Caucus Rep. Pramila Jayapal (D-Washington). “Impossible that a veteran cop couldn’t tell difference between taser and gun. We need real consequences for these killings.” Potter is a 26-year veteran of the Brooklyn Center Police Department.

Others noted that, if even after extensive training, police can’t distinguish between a gun and a taser, then the system is flawed. There have been multiple similar incidents before, including in Minneapolis, where a police officer had supposedly meant to pull out a stun gun and instead shot someone.

“If someone has been a police officer for 26 years and can’t distinguish a gun from a taser, that’s a solid indication as any that training will do nothing and it’s time to abolish this relic of slavery,” said Bree Newsome Bass on Twitter, racial advocate and artist.

Monday, April 12, 2021

With roundabout ties to an Ohio bribery scandal (on Alabama Power's behalf) and questions about possible misuse of public resources, John Merrill faces mounting pressure in aftermath of sex scandal

John Merrill and Cesaire McPherson

Alabama Secretary of State John Merrill, who admitted to an extramarital affair last week that caused him to step out of the 2022 race for a U.S. Senate seat, might face impeachment if an investigation shows he used taxpayer resources to facilitate the affair, one state lawmaker says. Aside from that, public documents show Merrill used financial support from one of the state's most powerful corporate entities, Alabama Power, to further his political ambitions, according to a report at -- and that relationship led Merrill to the periphery of a nasty environment-related scandal in the Midwest.. 

Alabama Power already has sketchy associations to the North Birmingham Superfund bribery scandal and a related $75-million lawsuit from a former executive at Drummond Company. Now, public documents show the company has ties to John Merrill and his fondness for the use of butt plugs in intimate moments -- even having sex with his mistress in the Merrill "marital bed"? Yikes, the public-relations woes are mounting at the Power Company. Reports Publisher K.B. Forbes at under the headline "Tied Up and Pinned: Alabama Power Stooge Tumbles in Disgraceful Sex Scandal":

On Wednesday, Alabama Secretary of State John Merrill lied about engaging in a scandalous sex affair.

After raunchy texts and audio recordings were released . . ., he admitted to the “tie-her-up-and-bite-me” affair of three years and dropped out as a U.S. Senate candidate.

Merrill is a long-time Alabama Power stooge having received over $13,000 in political contributions from the Alabama Power Employees State PAC.

 Merrill has been happy to pay tribute to power-company top dogs:

In December, Merrill honored “the most powerful man in Alabama” Mark A. Crosswhite, the CEO and Chairman of Alabama Power, with an award for keeping the lights on during election night. The awards ceremony was a ridiculous celebration of what utilities are obligated to do: keep the lights on and prevent power outages to a minimum. 

 Merrill also has done some political dirty work for his benefactors at Alabama Power. Reports Forbes:

Merrill was the same fool who last April attacked Daniel Tait of the Energy and Policy Institute. The Energy and Policy Institute helped bring down the Ohio Speaker of the House Larry Householder last July in an alleged $60 million bribery ring involving Ohio utilities and well-connected lobbyists, one of whom appears to have committed suicide three weeks ago.

Merrill dispatched an alleged “ghost-written” letter to Tait whining about the Institute’s legal status, funding, and compensation just three months before the debacle in Ohio.

And what provoked that letter?

Scrutiny by the Institute and other environmentalists about electric utility TVA’s failure to respond to a request under the Freedom of Information Act, and opposition to power generation permits before the Alabama Public Service Commission.

And who was requesting those permits?

Alabama Power.

Merrill stepped into an apparent bribery scandal -- at least on the edges of it -- on Alabama Power's behalf? Yikes! It's not like Merrill needs to invite more scrutiny at the moment. Writes Forbes:

As painful and uncomfortable as it is to hear, Merrill allegedly liked, among other alleged deviant behavior, to have clothes pins put on his nipples, according to his mistress.

Who did Alabama Power or the utility’s goons allegedly have to pinch or tie so that Merrill, like stooge Luther Strange, would sign an alleged “ghost-written” letter that has no relevance to his statewide office or constitutional mandates?

As for scrutiny of Merrill, State Rep. Juandalynn Givan (D-Birmingham) might be willing to provide some. She compared the Merrill matter to that of disgraced former Gov. Robert Bentley. Reports

An Alabama lawmaker who served with John Merrill in the House of Representatives said there should be an investigation into whether the secretary of state misused state property in carrying out an extramarital affair.

Merrill admitted to the affair Wednesday after the woman involved gave a recording of a phone call that refuted Merrill’s earlier denials.

Rep. Juandalynn Givan, D-Birmingham, said the situation raises concerns that could be similar to what happened with former Gov. Robert Bentley, who resigned in 2017 after the House started impeachment proceedings and the Alabama Ethics Commission found probable cause against the governor. An impeachment investigation produced a report that accused Bentley of using state law enforcement to hide evidence of an extramarital affair with his top adviser.

“I do feel that with regards to anything dealing with state funds, state vehicles, state property, I think that there should be a hard look on any matters that will address whether or not the secretary of state was in violation of any state laws,” Givan said.

During an interview with an reporter Wednesday night Merrill was asked about whether he misused state property. Merrill said at that point he would have no further comment on the situation. Merrill has not returned a call about Givan’s comments today.

While Merrill has pulled the plug on a planned U.S. Senate race, he has not resigned from his current position. Givan suggested pressure could mount for him to resign:

Givan spoke to reporters in the press room on the House floor while representatives met today. There was little or no open talk about Merrill’s situation among lawmakers. But Givan said that could change. She was asked if she thinks there will be a move to impeach Merrill.

“I’m sure there will be a hard discussion, and I’m sure there will eventually be a hard discussion in the Alabama Republican Party,” she said.

House Speaker Mac McCutcheon declined to comment on Merrill’s situation or speculate whether it could lead to another impeachment case like four years ago.

“It’s just a sad situation,” McCutcheon said. “I hate he’s going through that with him and his family.”

Givan said her purpose was not to sit in judgment on Merrill’s personal behavior but noted that he holds one of the most important elected offices in the state. The Secretary of State is Alabama’s top election official, among other responsibilities.

“I think it would just be in John’s best interest, if he truly loves the state of Alabama, that he would step down,” Givan said.

“Every year I get a Christmas card from John Merrill and it has his family on it. And it breaks my heart. … We all have fallen short,” Givan said. “I’m not here to judge him in that regard. But in this instance, he is a public official. Had that been me, I would have been asked to step down yesterday."

Friday, April 9, 2021

"Unfinished business," including $75-million lawsuit and enhanced regulatory scrutiny, could prove hurdles as Drummond heirs seek to sell coal company

Drummond Company


Descendants of the late CEO Garry Neil Drummond are trying to sell Drummond Company amid slumping demand for coal, according to a report at But a possible sale might face a number of stumbling blocks, including an unresolved $75-million lawsuit related to the North Birmingham Superfund bribery scandal. Writes Publisher K.B. Forbes, under the headline "Round 1: “Unfinished Business” Against Three Stooges Mounts": 

As we predicted last year, the sheer and uncontrolled panic of Alabama Power, Balch & Bingham and Drummond Company with the possible rebirth of the North Birmingham Bribery Scandal would provoke an avalanche of investigations and probes under a new administration and congressional leadership.

The Three Stooges were utter fools.

Round one: the national media are investigating and putting pressure against Drummond Company.

In an extensive piece in E&E News on environmental justice, Drummond’s deal for its polluting ABC Coke Plant in North Birmingham is now under scrutiny. E&E writes:

But what happened — and didn’t happen — next tells a disquieting tale of a status quo that has long left people of color and low-income communities disproportionately exposed to toxic air pollution….

[F]ederal regulators dithered. Local officials obfuscated. And the coke plant, located less than a mile from an elementary school, has continued to spew tons of cancer-causing benzene and other hazardous pollutants each year. Almost a full decade passed before a court-enforced cleanup agreement was locked in — and that happened earlier this year only after EPA fought residents’ efforts to amend the final deal.

In a ruling last summer, U.S. District Judge Abdul Kallon rejected any restrictions. That was followed this January with a final consent decree that — unusually — differed modestly from the 2019 draft.

But unfinished business remains. 

After [Jefferson] county health officials again renewed the plant’s operating air permit two years ago, [environmental group] GASP in June 2019 filed a protest with EPA. Among other objections, the group said that the permit lacked requirements related to total annual benzene in the byproduct recovery plant’s waste streams. Under the Clean Air Act, EPA is supposed to respond definitively within 60 days. More than 21 months later, GASP has yet to get an answer. EPA’s review is “ongoing,” the agency spokesperson said.

What does this mean? Forbes provides the answer:

That environmental racism and injustice will be dealt with and not be hidden by political friends, connections or cohorts in Alabama or Washington, D.C .

Drummond, which has provided hundreds of millions of dollars worth of coal products to Alabama Power, is the first of the three stooges to be in the spotlight.

As the heirs of Garry Drummond attempt to sell their global coal operations to Chinese or Central Asian interests, the baggage from North Birmingham, the $75 million lawsuit from David Roberson, and the federal probes percolating on the sidelines may hinder any future hopes of “closing the deal.”

Thursday, April 8, 2021

John Merrill, Alabama's GOP secretary of state, pulls the plug on 2022 U.S. Senate run after explicit reports about extramarital affair with Montgomery woman

Cesaire McPherson (Facebook)


Alabama's Republican Secretary of State John Merrill will not run for U.S. Senate in 2022 after admitting to an extramarital affair, according to reports yesterday from at least two state news outlets. An article about the affair first surfaced in the right-wing National File, and Merrill denied that report. But he admitted the affair took place to reporters after being confronted with an audio recording provided by the woman who claimed to be his lover. Yellow Hammer News(YH) followed with another report yesterday. Reports YH

Alabama Secretary of State John Merrill released a statement on Wednesday ruling out a run for public office in 2022.

Merrill’s decision comes after a 2019 extramarital affair he conducted with a 44-year-old legal aide in Montgomery surfaced online in recent days.

“After much prayer, reflection, and conversations with my wife, Cindy, I have decided that I will not be a candidate for any office in 2022,” Merrill said in a statement provided by his official office.

Merrill did not show any inclination to resigning before his term ends in January 2023, saying “I am surrounded by a great team and we look forward to finishing the goals we set out to achieve before our term ends.”

The first evidence of Merrill’s marital infidelities was reported by the hyperpartisan outlet National File on Tuesday afternoon.

It alleged that Merrill, who is married with children, carried on a months-long sexual affair with Cesaire McPherson, a Montgomery resident.

The National File report included what appeared to be firsthand evidence of illicit communications between Merrill and McPherson, including texts, photos and an audio recording.

Still, Merrill  denied the report until confronted with audio evidence that could not be denied. This is not the first time Merrill has denied reports of extramarital activities. In 2015, Legal Schnauzer broke the story of Merrill's relationship with a Tuscaloosa woman named Millie Brinyark, based on documents from Brinyark's divorce case. Merrill admitted to a "sexual encounter," but denied receiving oral sex. Amazingly, he mostly got away with that "explanation." But his denials don't seem to be working this time. Reports about Merrill's latest indiscretion:

After initially denying reports of an affair, Alabama Secretary of State John Merrill on Wednesday afternoon told that he had “an inappropriate relationship” with a 44-year-old woman and will not make an anticipated run for the U.S. Senate.

“I will obviously not be a candidate for the United States Senate nor will I be seeking any other elected position in 2022, because I think it’s important to me to make sure that I become the man that I have been before and that I am working to put myself in the position to be the leader that I have been before, as a husband, as a father, as a friend and as an elected official,”

Merrill, elected Alabama’s secretary of state in 2014 and re-elected in 2018, and was term limited from seeking a third term in 2022.

“With the end of my term coming up in January of 2023, I have been presented with a variety of options for where my path in public service could lead,” a statement from his office read. “I have decided that I will not be a candidate for any office in 2022.”

This time, the more Merrill denied an affair, he more he sank into quicksand:

In an interview with on Wednesday morning, Merrill denied having had an affair and accused Cesaire McPherson of “stalking” and “harassing” him.

McPherson declined to answer questions on the record Wednesday, instead providing a recording and a short statement.

“I don’t want to say anything other than here’s the proof that John Merrill is a liar,” she said. “Here’s the true John Merrill.”

McPherson provided with a recording of an October 2020 conversation between her and Merrill, who is a Republican. In the 17-minute recording, Merrill and McPherson discuss various sexual acts they performed during dozens of romantic encounters that McPherson says took place between November 2017 and November 2020. During the conversation, Merrill seems to try to end his relationship with McPherson, who was reluctant to break off the affair. He told her they had met for the last time and that he was seeking help from the Lord to stay away from her.

  Ultimately, Merrill admits in the interview there is no excuse for his behavior:

After being played a portion of the recording Wednesday, Merrill, who is married with two children, told “there’s no excuse” for his extramarital relationship.

“It’s clear that I had an inappropriate relationship with her, and it is not something that I am proud of or something that is something that — I’m very disappointed in myself. I’m also disappointed that I allowed my family to be embarrassed by this action,” he said. “And it’s something that I certainly will always regret because of the pain that it has caused my family.”

McPherson’s allegations were first made public yesterday on the right-wing web site National File.

Early in the call, McPherson asks Merrill, “the last time that we had sex, that’s the last time ever?” Merrill responded, “well, it was a pretty good day.” McPherson asks again if “that’s the last time ever” and Merrill says “it’s supposedly the last time ever.”

McPherson goes on to ask Merrill in explicit detail about sex acts she says they engaged in on multiple occasions and about specific locations.

He told her later in the call he hoped to draw strength from God to resist continuing their affair.

“I am not able to stay away from you, so that’s the reason why I have to have help in order to do that … the help is coming from the Lord,” Merrill said.

“You already went against your marriage … So you’ve already done it, you can’t take that back, you can’t change it,” McPherson said.

The National File article definitely is not for the squeamish or easily offended. It is filled with raw and explicit language. Here is a sampling: 

Alabama Secretary of State John Merrill, who is expected to run for U.S. Senate, had an extramarital affair from July 2019 to November 2020, his ex-mistress Cesaire McPherson told NATIONAL FILE. Cesaire McPherson, a legal assistant, said that she slept with John Merrill in his marital bed.

Merrill enjoyed having his anus breached with sex toys, according to McPherson, who also said that Merrill used his government vehicle to visit her home and used his official phone to send text messages. McPherson said that she recorded herself having sex with the Secretary of State on one occasion. McPherson said that Merrill engaged in physical fights with her that led to bruises on her body, with the politician grabbing and shoving her. McPherson also said that Merrill is a “real bad racist” who made disparaging remarks about African-Americans in her presence. NATIONAL FILE has obtained text messages that McPherson said Merrill exchanged with her.

Tuesday, April 6, 2021

Tommy Gallion's amended complaint in gambling-related lawsuit against Del Marsh & Co. points to reporting that supports allegations of bribery

Del Marsh


Individuals named in a gambling-related lawsuit have denied in press reports that bribery, or discussions of bribery, took place to give the Poarch Creek Indians monopolistic control over gaming in Alabama. But an amended complaint, filed by Montgomery attorney Tommy Gallion, alleges that bribery, in fact, was a part of negotiations on the recently defeated SB 214.  

The amended complaint alleges that substitute bills (SB 319 and 320) also would protect certain entities -- at the behest of corrupt Alabama lawmakers, particularly State Sens. Del Marsh and Bobby Singleton -- while harming others, such as plaintiffs Age with Dignity Inc., OIC Dream Greene County, and Dream County Inc.

Finally, the amended complaint alleges at least one news outlet, Alabama Political Reporter (APR) has been paid to reverse its position on recent gaming bills -- from opposing them to favoring them. (The amended complaint is embedded at the end of this post.)

Gallion points to an APR article, under the headline "Marsh holds meeting with gaming interest day after Ivey calls for the Legislature to stand down on gaming," to allege that improper meetings did take place regarding SB 14. Writes APR Publisher Bill Britt in the article, dated Feb. 10, 2020:

Despite Gov. Kay Ivey’s call for the Legislature to give her “time to get the facts,” on a lottery and gaming bill before proceeding with legislation, Senate President Pro Tem Del Marsh summoned representatives of the Poarch Creek Band of Indians and two of the state’s dog tracks to sit down and discuss moving ahead on a proposed lottery and gaming bill. 

A day after Ivey’s State of the State, Marsh, along with Senators Bobby Singleton and Steve Livingston, held a conference with Robbie McGhee, PCI’s Vice-chair, Lewis Benefield, who operates VictoryLand and the Birmingham Race Course, and Nat Winn from Greenetrack to try and reach an agreement among the three gaming entities.

Marsh, at the Wednesday meeting, informed those gathered that they needed to come up with a compromise on the gaming issue so that legislation could proceed with a constitutional amendment on a lottery and gaming package this session. 

Participants in the closed-door meeting declined to speak with APR about the content of their discussions. However, those who have knowledge of the conversation did relay some of the details to APR.

According to those sources, the group discussed what a compromise might look like, what tax revenue the facilities would be allotted to the state and locations sought by PCI.

Reportedly, the discussions were generally cordial and productive while lawmakers were present, but that the tone changed dramatically once the lawmakers left the room.

Two sources with an understanding of events said that McGhee turned arrogantly defiant after the legislators left, telling the track owners that PCI didn’t need to compromise because they already have the votes necessary to pass their desired legislation.

APR reporter Josh Moon wrote a highly critical article about the initial complaint, and Gallion hints in his amended complaint that was not by chance:

Moon has intentionally with malice interfered with the plaintiffs' lawsuit by publishing a false and libelous story in its state-wide publication titled "A lawsuit has been filed over gambling bill. It is ridiculous and there are no facts to back up the lawsuit." Moon is known as an inept and sloppy reporter, who hides behind his scurrilous and yellow-journalist publications by prefacing his articles as "Opinion." Moon obviously rushed to help the . . . promoters of SB 214 and failed to adhere to . . . checking the facts.

. . . If Mr. Moon had gone to the trouble to review the articles written by Bill Britt, his boss . . ., he would have found the truth. Moon, in essence, has called his boss Britt and APR liars.

Perhaps Moon . . . should go to the past publication of his employer, APR and he will discover the following. On Oct. 31, 2012, Britt published an article in APR titled "ALGOP finance chairman pays visit to Poarch Creek Indians." On Nov. 16, 2012, Britt wrote an article titled "Gambling money linked to 2001 GOP takeover of Alabama Senate." On April 9, 2013, Britt wrote an article titled "Marsh launches coverup of gambling money."

As stated above, the plaintiffs' allegations are factually based on Moon's own employer publications. Britt denied these facts in his own article, which makes Britt, Moon, and APR either liars or, at best, the most hypocritical reporters in the history of Alabama journalism. . . . 

The question that the plaintiffs believe they will discover during the stages of this litigation, is how much money, if any, did Britt, Moon, and/or APR receive to . . . deny their own quoted articles in this litigation and totally reverse their previous publications backed up by interviews. Now, APR and Moon are continuing to write articles to support the Poarch Creeks' so-called "educational lottery.

Monday, April 5, 2021

Derek Chauvin's defense team dusts off the "myth of the supernegro" in former Minneapolis cop's murder trial for the racially charged death of George Floyd

George Floyd arrest


Former Minneapolis police officer Derek Chauvin, on trial in the death of George Floyd, is employing a defense that focuses largely on "the myth of the supernegro," according to a report at Mother Jones (Mojo). Writes Nathalie Baptiste:

“This was not an easy struggle,” said Eric Nelson, the attorney for the cop who killed George Floyd. In his opening statement in the trial of Derek Chauvin, Nelson was at pains to portray the events of May 25, 2020, as a struggle between a powerful brute and a law enforcement official trying to do his job. He wanted the jurors to visualize Floyd, pinned to the ground and struggling for air, as bigger, taller, stronger than Chauvin, the man whose knee was on Floyd’s neck. He wanted them to understand that Floyd’s size alone meant he was a threat. 

“You will see that three Minneapolis police officers could not overcome the strength of Mr. Floyd,” Nelson told the jury. Then he provided the tale of the tape, like some boxing promoter trying to hype the underdog: “Mr. Chauvin stands 5-foot-9, 140 pounds. Mr. Floyd is 6-3, weighs 223 pounds.”

And with that, the myth of the supernegro had arrived in court. The argument the defense was making was essentially that this Black man was so large, so powerful, and so dangerous that the only thing the tiny white cop could do to stop him was to kill him.

Is this a new theme on the American? Not at all, writes Baptiste; in fact, it has a lengthy history:

The idea that Black people have superhuman abilities dates back to the days of slavery. In 1811, an unnamed doctor in London published a book called Practical Rules for the Management and Medical Treatment of Negro Slaves. In it, he posits that slaves’ bodies were “much less exquisite” than white ones and thus they didn’t feel pain; they didn’t die from infections that white people died from; and they didn’t fear death. “It is certainly a very great [advantage] to be able to face death, the inevitable lot of all, as they do, not only without dismay, but with an indifference,” the author writes. To this day, many doctors believe Black people have a higher pain tolerance. And studies have shown that many people, including other Black people, believe Black people are stronger, faster, and more dangerous than other races. In the real world, this idea can be and often is fatal for Black people.

It’s clear that the defense wants the jury to see Floyd as a combative drug user who had to be restrained lest he become violent. Intimations of his vulnerability had to be banished from the record. While cross examining Genevieve Hansen, a firefighter who witnessed Floyd’s death, Nelson asked about Narcan, a nasal spray used to reverse opioid overdoses. “You’ve had a lot of experience with people overdosing—people become combative when revived?” he asked. “Not often. But it happens,” Hansen replied. In an earlier statement, Hansen had described Floyd as small. “Did you describe Floyd as a small, slim man?” Nelson asked her, implying that Floyd was anything but. Hansen acknowledged that she had, saying he appeared to be small with three grown men on top of him.

In the world evoked by the defense, the cops were innocents doing their civic duty with savagery all around them. Nelson tried to portray the bystanders as an unruly and angry crowd, attempting to interfere with police work. As he cross-examined Donald Williams, a Black man who witnessed Floyd’s death, he repeatedly asked Williams if he was “angry.” Williams responded calmly, “No, you can’t paint me out as angry,” knowing full well that being portrayed as an angry Black man would harm his credibility.

A black man, it seems, is prone to become a "supernegro" when confronted with a white police officer:

Chauvin is not the first police officer to perceive a Black person as a threat. In 2014, white police officer Timothy Loehmann fatally shot 12-year-old Tamir Rice, who was playing in a park with a toy gun. The police officer later said that he thought Rice was an adult. That same year, a white cop named Darren Wilson drew on the same racist stereotypes in his testimony before a grand jury investigating his shooting of 18-year-old Michael Brown in Ferguson, Missouri. “I felt like a 5-year-old holding on to Hulk Hogan,” said Wilson, only an inch shorter than Brown. 

Does the "supernegro" myth make sense, is it based on consistency? Nope, writes Baptiste:

Of course there’s a glaring inconsistency in the defense’s arguments. On the one hand, we have the superhuman Black man, whose immeasurable strength left the cop with no choice but to kneel on Floyd’s neck until he died. On the other, we have the argument that originated in the right-wingosphere and was suggested by Nelson on Monday: that Floyd was under the influence of opioids when he died. Floyd did, in fact, have a substance abuse problem. And while the state of Minnesota is arguing that Floyd died due to excessive force at the hands of Chauvin, the ex-cop’s lawyer said in court that Floyd died due to a combination of drug intoxication, heart disease, and an enlarged heart. In other words, Floyd was so weak that anything, even a routine stop by a police officer, could kill him.

So which is it? Was Floyd a superhuman Black man incapable of feeling pain or was he one normal interaction away from death?

Many of the bystanders who testified in court were brought to tears recalling the day. Darnella Frazier, a teenage witness who recorded video of Floyd’s killing, was in tears as she explained the lasting trauma from that day. Her 9-year-old cousin told the court she felt “sad and kind of mad because it felt like [Chauvin] was stopping his breathing and he was kind of hurting him.” Another teen, identified only as Alyssa, said she was “emotionally numb” in the days after Floyd’s death. 

It’s not the first time this trope will be deployed against Black people, and it certainly won’t be the last. But still there was something so jarring to listen to children and adults testify tearfully about what they witnessed at the scene of George Floyd’s death and to understand what Nelson was saying: Floyd, gasping for air, crying out in pain, calling out for his mother, was the angry, aggressive, combative one, a man so powerful that if Chauvin had removed his knee, well, that’s when the real danger would’ve begun.

Wednesday, March 31, 2021

Shane Aumic dies in tiny Ava, Missouri, after officer kneels on his back, a move similar to that of Derek Chauvin in the death of George Floyd in Minneapolis

Shane Aumic, in a family photo


Former Minnesota police officer Derek Chauvin is being tried for murder this week in the racially charged death of George Floyd. That news is coming from Minneapolis, one of our major urban centers. But at the same time, events eerily similar to those surrounding the Floyd death are unfolding here in the Missouri Ozarks, not far from where we reside -- in a place that's about as rural as they come.

George Floyd
The locale is Ava, MO (pop. 2,993), which is the only incorporated city in Douglas County. Ava is not exactly a diverse place; its population is  0.1 percent Black and 97.6 percent white. The town's police department does not have to deal much with race-related issues, but Ava officers still can't keep from killing citizens, much the way George Floyd was killed. It makes you wonder if some cops are so thick-skulled that they cannot learn, even from lessons taught on the national stage.

The decedent in Ava was a man named Shane Aumic. Best we can tell, all of the individuals connected to the incident were white. From a report at, under the headline "Woman files lawsuit, claims husband died as Ava, Mo. officer knelt on his back":

A woman has filed lawsuit in federal court claiming that an officer from the Ava Police Department killed her husband last April by kneeling on him for several minutes while in custody.

Rachel Aumic, the wife of Shane Aumic. filed the lawsuit in federal court. It consists of three counts, two for violations of civil rights and one for a wrongful death.

According to the lawsuit, officer Kaleb Berkshire from the Ava Police Department initially responded to a call over a domestic disturbance around 6 a.m. on April 4, 2020, in the 500 block of Pennington Avenue.

Officer Berkshire found Aumic’s mother and stepfather outside. The officer entered the home after being informed that Aumic was intoxicated, holding a knife and “not in the right state of mind,” according to the lawsuit.

Per court documents, Aumic left the home, then made statements that somebody was trying to kill him. Officer Berkshire then instructed him to put down a knife several times. The officer eventually convinced Aumic to let go of the knife. Officer Berkshire removed a pistol from his possession, then handcuffed Aumic on the front porch, per court documents.

When medical assistance arrived on the scene, the situation did not improve much:

According to the lawsuit, Berkshire was lying on his stomach and attempted to search Aumic. . . .  Aumic kept yelling while Berkshire said, “Stop! Stop, you understand? Stop now!” Then Aumic pleaded, “Please! Have Mercy!”

During that encounter, the lawsuit says Berkshire knelt down on Aumic and placed his knee in Aumick’s back for several minutes. The encounter was captured on body-cam footage time-stamped around 6:22 a.m. A medical crew arrived right around that time.

According to the lawsuit, Berkshire told Aumic “I’ll get off your back when you stop” while Aumic kept yelling. The lawsuit says, a CoxHealth paramedic held Aumic’s legs down while Berkshire was on his back. The lawsuit says, Berkshire threatened to use a taser near the end of the encounter. Aumic, who was grunting for several minutes, then became silent.

The paramedic asked Berkshire if Aumic was still conscious after several minutes. Berkshire stated, “Yeah... Well, I think he is.” The officer then yelled an expletive, according to the lawsuit.

The lawsuit says Berkshire and the paramedic began life-saving procedures around 6:30 a.m. until additional emergency medical staff arrived. A coroner pronounced Aumic deceased at 7:05 a.m.

 Berkshire apparently was surprised that a subject could be in bad shape from having a cop kneel on his back They don't get newspapers or cable news in Ava?

The lawsuit accuses the Ava Police Department and other parties of negligence, particularly for not being properly trained for the encounter. Aumic’s wife is seeking compensatory damages and damages for aggravating circumstances against the defendants, punitive damages, and reasonable attorney’s fee and costs. She is being represented by an attorney from Kansas City.

Other defendants in the lawsuit are Douglas County, Cox Medical Centers, Douglas County Emergency Management and paramedic Steve Woods.

KY3 contacted the Ava Police Department on the lawsuit. We will update if the department releases a statement.

CoxHealth released the following statement Friday afternoon to KY3: 

 “We have not yet been served with a lawsuit, so we are in the very early stages of gathering information. However, we take this matter very seriously, and are conducting a thorough review of our records to learn more.”

Tuesday, March 30, 2021

Alabama law holds that "secrecy in the exercise of judicial power is not tolerable or justifiable," but Jefferson County Judge Tamara Harris Johnson promotes secrecy when it favors Drummond Company

Tamara Harris Johnson


(Part Two)

An Alabama judge cites a case styled Holland v. Eads, 614 So. 2d 1012 (Ala. Sup. Ct., 1993) as grounds for sealing the record in a $75-million lawsuit related to Drummond Company, the Balch Bingham law firm, and the North Birmingham Superfund bribery scandal. The citation, from Jefferson County Circuit Judge Tamara Harris Johnson, is ironic because the Holland opinion repeatedly states that American courts favor open court records -- available to the public and the press -- over secrecy.

So, is Johnson's ruling based on remotely solid legal footing? Not that we can find. Does that mean the judge has allowed herself to be intimidated by one of Alabama's "Big Mule" corporations, one with a lengthy record of dubious activity in South America -- and with likely motivation to keep the North Birmingham scandal from being reopened in the civil arena? Sadly, that's how it appears. 

How do American courts view the public's right to access court records. Holland states the case in powerful language, beginning with the highest court in the land:

The United States Supreme Court has recognized a common law right of public access to judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). "`It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.'" United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981), quoting Nixon, supra, 435 U.S. at 597, 98 S. Ct. at 1312. In fact, this right of the public to inspect and copy judicial records antedates the United States Constitution. Criden, supra.

You read that correctly: The public's right to inspect judicial records predates the U.S. Constitution. But an Alabama judge, just a few days ago, sealed the record in a case involving two of Alabama's most powerful and "Big Mulish" corporate and legal entities. Would it be reasonable for an Alabamian to assume our courts are tilted to favor the powerful and the wealthy (and the white) -- even when the judge in questions is a black female Democrat, with a history of making claims about standing up for the under-represented and oppressed in our society? It sure would, especially now that Johnson appears to be an unabashed corporatist, carrying Drummond's water.

What about the law on public court records in Alabama? Again, from Holland:

It has long been the rule of this State to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, this Court held that "[a]n inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any citizen."; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala.1987) (holding that "the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official's ability to perform his duties"); Excise Comm'n of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 657, 60 So. 812, 813 (1912). The public's right to inspect court records derives from the "universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power ... is not tolerable or justifiable." Jackson v. Mobley, 157 Ala. 408, 411-12, 47 So. 590, 592 (1908).

In addition to a common law presumption of permitting public inspection of judicial records, which has been recognized by the United States Supreme Court and by this Court, public access to court records is permitted by statute. Ala.Code 1975, § 36-12-40, grants the public the right to inspect and copy "public writings," which term has been interpreted to include judicial records. Ex parte Balogun, supra; Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala.1981) (interpreting a "public writing" to be "a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens"); State ex rel. Kernells v. Ezell, 291 Ala. 440, 442-43, 282 So. 2d 266, 268 (1973) (holding that records of the office of the probate judge are "public writings" within the meaning of the predecessor to § 36-12-40 and are "free for examination [by] all persons, whether interested in the same or not"); Excise Comm'n of Citronelle, supra; Brewer, supra.

We invite you to ponder the section highlighted in green above -- that "secrecy in the exercise of judicial power . . . is not tolerable or justifiable." Is it only tolerable or justifiable when Drummond Company is a litigant in Judge Tamra Harris Johnson's courtroom? We are pretty sure that's not how it's supposed to work.

Exceptions do exist to the presumption of openness in court records, but the exceptions are to be "strictly construed." From Holland

Limitations of the public's right to inspect "must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure." Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala.1989). The party refusing disclosure bears the burden of "proving that the writings or records sought are within an exception and warrant nondisclosure of them." Chambers, at 856-57; Ex parte CUNA Mutual Ins. Society, 507 So. 2d 1328, 1329 (Ala.1987); Ex parte McMahan, 507 So. 2d 492, 493 (Ala.1987). This Court has held that the following types of records do not warrant disclosure: "[r]ecorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public." Stone, 404 So. 2d at 681. . . . 

The Court of Appeals for the Sixth Circuit also recognizes a public right of access to judicial records. Brown & Williamson Tobacco Corp., supra. The Sixth Circuit has noted that few reasons warrant closure of public records. The court indicated that some of these reasons include a defendant's right to a fair trial, certain privacy rights of participants or third parties, trade secrets, and national security. . . . 

We have examined the different approaches used in other jurisdictions. In light of the public policy in favor of public access and the prevailing analysis of this presumption in most American courts, we hold that if a motion to seal is filed, then the trial court shall conduct a hearing. The trial court shall not seal court records except upon a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed:

(1) constitutes a trade secret or other confidential commercial research or information; see Brown & Williamson Tobacco Corp., supra, at 1179; or (2) is a matter of national security; see Barron, supra, at 118; or (3) promotes scandal or defamation; or (4) pertains to wholly private family matters, such as divorce, child custody, or adoption; see Warner, supra; Balogun, supra; Holcombe v. State ex rel. Chandler, 240 Ala. 590, 200 So. 739 (1941); or (5) poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to the parties to the action; or (6) poses the potential for harm to third persons not parties to the litigation.

If any one of the above criteria is satisfied, then the trial court may seal the record, or any part of the record, before trial, during trial, or even after a verdict has been reached.

This approach limits, but does not abolish, the range of judicial discretion. There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual's privacy interest (as set out above) rises above the public interest in access.

         (To be continued)

Monday, March 29, 2021

Alabama judge steps well outside the law in sealing the record in $75-million lawsuit related to Drummond, Balch Bingham and North Birmingham bribery case

Drummond Coal


An Alabama judge has sealed the record in a $75-million lawsuit related to the North Birmingham Superfund bribery scandal, according to a report at EE News (Environment & Energy Publishing, owned by Politico). That means past and future documents in the case will be off limits to the press and the public.

Are the actions of Jefferson County Circuit Judge Tamara Harris Johnson justified under the law? Our research indicates the answer is no. Should news organizations and First Amendment advocates challenge the ruling, and should the public be outraged? Absolutely.

Former Drummond Company executive David Roberson sued his former employer and the Balch Bingham law firm, alleging they conspired to make him the fall guy in the 2018 Superfund criminal trial

Drummond vigorously pushed for the lawsuit to be sealed, arguing that coverage from and Legal Schnauzer was inflammatory, prejudicial, and threatened to taint a potential jury pool. As one of the targeted journalists, I appreciate Drummond's contention that my blog's reach and influence is so widespread and powerful that it would make justice impossible for the company to obtain in the Roberson case. Drummond's court filings suggest  two one-person blogs are a threat to a regional, national, and multinational coal giant. How to describe that? "Pure rubbish" comes to mind, for starters. 

Is this a case of Alabama's "Big Mules" resorting to threats, intimidation, and underhanded court tactics to keep their secrets hidden  and protect the corporate and legal status quo in a state riddled with white-collar corruption? Sure looks that way from here.

Consider this for irony: Drummond's arguments about the sanctity of Alabama's justice system come in a case where two members of the plaintiffs' team (Roberson himself and attorney Burt Newsome) have met with violence that could have been fatal. Has Judge Johnson voiced any concern about that? Two key figures in a case under her purview could have been killed, but has she called for an investigation or been anything other than oblivious? We wouldn't know because the case is sealed.

How wacky is all of this? Reporter Sean Reilly takes a crack at describing it for EE News

Drummond's fortunes, like those of the coal industry generally, are now in decline, rankings by Forbes magazine indicate.

Whatever the company's eventual fate, part of its legacy will be unintended: via a corruption trial, an unprecedented, searing look into the political culture of a state where an oligarchy of business and agricultural interests often dubbed "Big Mules" has traditionally shaped policies including Alabama's tax structure and the scope of environmental regulations.

The case also exemplifies how influential companies prevail over poor minority communities. That dynamic is now meeting a new test: As a candidate, President Biden pledged to hold corporations accountable for pollution that disproportionately affects people of color. But as E&E News reported yesterday, that agenda could be stymied by both the reluctance of local regulators to take on prominent businesses and federal regulators' reluctance to aggressively intervene, as occurred in the Drummond air toxics case (Greenwire, March 22).

Three years ago, a federal jury convicted Roberson, the lobbyist, and Joel Gilbert, a onetime partner at the prominent Birmingham-based law firm Balch and Bingham LLP, of bribing a state legislator in a scheme to help Drummond avoid financial cleanup responsibility for a Superfund site in a mostly Black neighborhood in north Birmingham (E&E News PM, Nov. 19, 2018).

But their public trial also exposed the legal means that Drummond used to exercise its clout.

In 2014, for example, six of the state's House members at the time signed on to a letter drafted by Gilbert opposing the EPA proposal to add the site to the National Priorities List; that proposal, which remains in limbo, could leave Drummond on the hook for millions of dollars in expenses for remediating contaminated soil (Greenwire, Nov. 21, 2018).

Reilly then turns his attention to the Roberson civil matter:

While both Gilbert and Roberson were sentenced to prison time and lost their jobs, they remain free while waiting for the 11th U.S. Circuit Court of Appeals to rule on challenges to their respective convictions.

Other fallout from the scandal persists.

Roberson, alleging that he was a fall guy, filed a lawsuit in Alabama state court in 2019 seeking tens of millions of dollars from Drummond and Balch for "negligence, fraud and suppression." Balch has since been dropped from the litigation, although Roberson's lawyer is appealing that decision. Drummond has stated a variety of grounds for dismissing the suit. In court papers, Roberson alleged that Drummond was worried that cleanup costs for the Birmingham Superfund site could top $100 million.

But in a sign that media coverage — particularly in two blogs, Legal Schnauzer and Ban Balch & Bingham, that have chronicled the proceedings — is becoming a concern, Drummond this month filed a motion for confidentiality in the case "to prevent further prejudicial publicity of the pre-trial process."

On Friday, a judge agreed to seal the entire record at least through the trial. Roberson's attorney did not oppose the motion, her order indicates.

Drummond, which is headquartered in Birmingham, doesn't detail its finances. For 2018, however, Forbes ranked the company 165th in its roster of the nation's largest privately held companies with some $2 billion in sales. By last year, Drummond had dropped off the list entirely "due to declining revenues, as falling global demand for coal pushed prices down," the magazine reported last November.

Unlike many of its competitors, Drummond has so far avoided a trip to bankruptcy court. While its operations include a real estate development arm, the company's website proclaims a continuing passion for coal.

"We focus on our core strengths and avoid straying from our niche," the site says. "Our heart and soul is coal and we do that very well."

Drummond also seems to be pretty good at strong-arming judges. How else to explain Johnson's "confidentiality order," which veers wildly from established Alabama law?

What is the reasoning behind Johnson's order to seal? Here is the gist of it, from a link in the EE News article:

After hearing and considering sworn testimony offered by the Plaintiff and Defendants, hearing and considering arguments of counsel and reviewing and considering the aforementioned documents, along with the Alabama Supreme Court's guidelines in Holland v. Eads, 614 So.2d 1012 (Ala. Sup. Ct, 1993), this Court weighed the right of public access to judicial records with an individual's privacy interest. The Court FINDS that, notwithstanding the Plaintiff's "no objection" to the Defendant's request and after a full review of the aforementioned testimony and documents at this Hearing, the Defendant has proved by clear and convincing evidence that the information contained in documents and presented through testimony promote scandal or defamation; pose a serious threat of harassment, exploitation, and/or physical intrusion to the Parties in this action; and pose the potential for harm to third persons not parties to this litigation. Accordingly, this Court FINDS it necessary to SEAL the entire record of this case, including discovery, before trial and during trial. The Court will re-evaluate this determination after trial. It is hereby ORDERED that the ENTIRE FILE in the above captioned case is SEALED and MARKED AS CONFIDENTIAL. It is ORDERED that the Clerk of the Court is DIRECTED to ensure that the contents in this file are released ONLY to the counsel of record to the herein named Parties. It is ORDERED that counsel and Parties are PROHIBITED from disclosing any contents, documents or information contained within this file to the public, without permission of this Court.

How does that mesh with Alabama law? We will examine that question in an upcoming post.

(To be continued)

Wednesday, March 24, 2021

Lawsuit over fatal shooting of black youth by white police officer in Mobile, AL, settles for $2.5 million after judge denies cop's request for qualified immunity

Protesters seek justice for Michael Dashawn Moore


A Mobile, AL, woman has settled a lawsuit for $2.5 million after a white police officer fatally shot her 19-year-old black son during a 2016 traffic stop. The Atlanta law firm of Williams Oinonen represented Shunta Daugherty, the mother, in the case. From an article at the law firm's Web site, under the headline "Black Lives Matter: Wrongful Death of Black Teen in Police Shooting Case Victory Where Alabama U.S .Judge Trims Police Qualified Immunity, Keeping Civil Claims Alive":

Michael Dashawn Moore was only 19 years old shot and killed during a traffic stop by Mobile Police officer Harry Hurst in 2016 when, according to witnesses, he had his hands up. Officer Hurst claimed he had a weapon which no one could find at the scene.

Williams Oinonen LLC obtained a recent ruling in a case that sparked protests in Mobile, Alabama, in 2016 and continues to generate controversy, where the federal judge has added to a significant body of case law holding that police officers accused of shooting citizens are not automatically protected by the doctrine of qualified immunity, which has so often derailed civil lawsuits seeking damages.

This is a big win in the case for obtaining justice for our client, Michael Moore’s family. For more information you can read the story here.

The facts in the case, Daugherty v. Hurst, are hotly disputed, but it seems clear U.S. District Judge Terry Moorer's denial of the officer's qualified immunity claim paved the way for Daugherty to achieve at least some measure of justice. This is how the case wound its way through court, from Moorer's  memorandum opinion in the Southern District of Alabama (some citations omitted):

On February 9, 2017, Plaintiff Shunta Daugherty ("Plaintiff") filed her original complaint against Defendant Harry Hurst ("Officer Hurst"). . . . Plaintiff asserted three counts in the original complaint: (1) allegations of a Fourth Amendment violation brought pursuant to 42 U.S.C. § 1983; (2) wrongful death pursuant to Ala. Code. § 6-5-410; and (3) negligence pursuant to Alabama state law. Id. Officer Hurst appeared and answered the complaint on April 7, 2017. . . . 

On June 12, 2018, Plaintiff sought to amend her complaint, which the Court granted.  . . . The Amended Complaint was docketed on June 21, 2018. . . . Plaintiff added as defendants the City of Mobile ("the City") and the University of South Alabama Medical Center ("the Medical Center") and asserts five separate counts as follows: (1) a Fourth Amendment violation brought pursuant to 42 U.S.C. § 1983 against Officer Hurst in his official and individual capacities; (2) wrongful death pursuant to Ala. Code. § 6-5-410 against Officer Hurst in his official and individual capacities; (3) negligence pursuant to Alabama state law against Officer Hurst in his individual capacity; (4) negligent Retention against the City; (5) unskillfulness of Hurst against the City; and (6) spoliation against the Medical Center. The City filed its answer on July 27, 2018.  . . The Medical Center filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to which the Plaintiff responded was unopposed. . . . Consequently, the Medical Center was dismissed as a defendant and Count VI for spoliation was dismissed. . . .  Therefore, the only defendants remaining were Officer Hurst and the City and the only claims remaining were Counts I through V.

After discovery concluded, on October 4, 2019, the City and Officer Hurst filed their respective motions for summary judgment. . . . Plaintiff timely responded and Defendants timely replied. . . .

Moorer's statement regarding the summary-judgment standard, and his apparent determination to abide by it, was a key factor in the case:

Factual Background

At the summary judgment stage, even in cases of excessive force, the facts are "what a reasonable jury could find from the evidence viewed in the light most favorable to the non-moving party." Cantu v. City of Dothan, --- F.3d ---, ---, 2020 U.S. App. LEXIS 28074, at *4, 2020 WL 5270645, at *2 (11th Cir. Sept. 3, 2020) (quoting Scott v. United States, 825 F.3d 1275, 1278 (11th Cir. 2016)). "[W]here there are varying accounts of what happened, the proper standard requires us to adopt the account most favorable to the non-movant." Id. at ---, 2020 U.S. App. LEXIS 28074, at *4-5, 2020 WL 5270645, at *2 (quoting Smith v. LePage, 834 F.3d 1285, 1296 (11th Cir. 2016)). Therefore, the recitation of facts here are those construed in favor of the Plaintiff. "The 'facts' at the summary judgment stage are not necessarily the true, historical facts; they may not be what a jury at trial would, or will, determine to be the facts." Id.

How jumbled were the facts in Daugherty, according to court documents? Moorer's opinion makes it clear:

The case results from the shooting and subsequent death of Michael Dashawn Moore ("Moore") by Officer Hurst. Plaintiff alleges the following facts in her Amended Complaint and response to summary judgment. . . . Of note, there is no video of the traffic stop or shooting. The only video available is several minutes later from responding officers reporting to the scene.

On June 13, 2016, Moore, went to play basketball at the Springhill Rec Center. Afterwards, Moore and two friends, Mark Amos ("Amos") and Robert Blackmon ("Blackmon"), rode around the City of Mobile in a white Lexus. Officer Harry Hurst ("Officer Hurst") was a Mobile Police Department Officer who was on his way into work. Eventually, Officer Hurst activated his blue lights to initiate a traffic stop of the white Lexus. The Lexus pulled into the driveway of an office on the south side of Wagner Street. Officer Hurst pulled up behind the Lexus, got out of the patrol car, and walked up to the Lexus on the passenger side of the vehicle. Moore was the driver of the vehicle while Amos was in the front passenger seat and Blackmon was in the back seat. Officer Hurst requested Moore's license and registration, and Moore verbally gave a driver's license number.

Officer Hurst went back to his patrol vehicle. According to Officer Hurst, at this point, he called police dispatch to provide the location of the traffic stop and the Lexus' tag number. Officer Hurst heard the dispatcher put out a radio request for an officer to back Hurst up for a possible Code 29. At this point, Officer Hurst indicates he ran the Lexus tag in the National Crime Information Center ("NCIC"), which indicated a stolen vehicle report submitted by MPD Officer Demetrius Watts. Officer Hurst also ran the tag number in the Law Enforcement Tactical System ("LETS"), which displayed the photograph of the vehicle's owner, an older white male that clearly was not Moore, a younger black male. Officer Hurst also said he ran the driver's license number that Moore had recited, and the result displayed a photograph of the holder of the license was another white male (different from the vehicle owner).

Dispatch was having difficulty securing back up for Officer Hurst as the time of day was at shift change and at the end of the business workday. Officer Hurst then got out of his patrol car, drew his service weapon, and approached the driver's side of the Lexus. Officer Hurst then ordered Moore out of the vehicle.

Moore complied with the officer's command, and that proved to be a fateful step:

At this stage, the facts become heavily disputed. Plaintiff alleges Moore stepped out of the vehicle with a cell phone in his hand, moved towards the front of the Lexus, and once there he faced Hurst with his hands raised in the air. Plaintiff acknowledges that even their witness testimony varies - some witnesses say there was not a gun on Moore while others say a gun was tucked in his shorts, but that he never reached for the weapon. Some also acknowledge that Moore stepped back as if he stumbled or prepared to run. Then Officer Hurst shot Moore despite the fact Moore did not reach for a weapon with his hands still in the air. After Moore fell to the ground, Officer Hurst shot him again.

Officer Hurst tells a very different version of events. Though the Court must consider the facts in the light most favorable to the Plaintiff, the Court will still articulate Officer Hurst's version of events to provide context for this legal dispute. Officer Hurst alleges that Moore exited and faced the vehicle with his hands extended above the roof with a cell phone in one hand. Officer Hurst then ordered him to put his cell phone down. When Moore bent to put the cell phone down, Officer Hurst noticed Moore had a pistol tucked into his shorts. Officer Hurst told Moore he saw the gun and directed him not to reach for it. As Moore straightened up, he paused while his back was to Officer Hurst. Moore then broke away and spun around rapidly with his hands at chest level. Officer Hurst says he lost sight of Moore's hand for a moment. Officer Hurst then saw Moore's right hand move towards his waist. Officer Hurst fired several shots, and Moore fell backwards. Officer Hurst shouted for Moore to put his hands behind his head, but Moore did not comply. Rather, Moore moved his hand towards his waist where Officer Hurst had seen the gun tucked in his shorts. Officer Hurst believed his life was in danger and fired a final shot. After the final shot, Officer Hurst trained his service weapon on Amos and Blackmon and ordered them to keep their hands where he could see them. Officer Hurst then contacted dispatch, repeated his request for backup, and indicated an officer-involved shooting.

Numerous witnesses were in the vicinity and provide varying accounts of the events. Some favor the Plaintiff's version of events while others favor the Defendants' version.

Did a search of Moore's body produce a gun? No, at least not one with Moore's fingerprints on it:

Mobile Police officer Ophelia Weathington ("Officer Weathington") responded to the dispatch call for back up for an officer-involved shooting and activated her body camera. Officer Weathington was the first to arrive on the scene approximately two to three minutes later. At Officer Hurst's request, she secured Amos and Blackmon by training her service weapon on them and telling them to keep their hands up. Officer Hurst rolled Moore onto his stomach and handcuffed his hands behind his back. Officer Hurst, along with Officer Weathington and Officer Deadre Portis (who had just arrived), moved Amos and Blackmon from the Lexus, handcuffed them, and placed them in separate patrol cars.

Officer Hurst searched Moore after he was shot, but did not find a weapon. On the scene, Officer Hurst told at least two officers that he found a magazine in Moore's pocket, but after one officer pointed out that Officer Hurst appeared to be missing a magazine from his own carrier, he did not mention it again. Several officers also searched the area and never located a weapon. At this point, paramedics worked on Moore, placed him on a stretcher, and took him to an ambulance. Moore was also searched by a paramedic who also did not find a gun. This search included lifting Moore's shirt and pulling his shorts away from his body as captured by the body-camera video from Officer Portis. Moore was taken by ambulance to the Medical Center. In the ambulance, Moore's shirt and shorts were cut by paramedics and still no gun was found. Once in the hospital, Moore was transferred from the stretcher to a hospital bed. Numerous doctors, nurses, and other medical personnel worked on or observed Moore's treatment. Still no gun was found.

Eventually, after Moore was pronounced dead, a nurse found a firearm after she rolled Moore's body over. The nurse notified the officer in the room, and the weapon was photographed and recovered. The gun had little to no blood on it despite a large pool of blood under Moore, and when tested for fingerprints, Moore's fingerprints were not found on the gun or the bullets.

U.S. Rep. Ayanna Pressley (D-MA ) is leading an effort in Congress to end qualified immunity. The Michael Dashawn Moore case provides a dramatic example of what can happen when immunity is taken out of the equation in a civil-rights case against police.

(To be continued)