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)

Monday, March 22, 2021

Kansas City police officer faces assault charge after directing "fogger spray" into a black juvenile's face during Black Lives Matter protest last summer



A police officer in Kansas City, MO, has been indicted for assault after spraying chemicals into the face of a 15-year-old black girl during a protest last summer after the death of George Floyd in Minneapolis. The story is a stunner for at least two reasons: (1) I can't think of another instance where a cop has faced criminal accountability after use of non-lethal force; (2) Jackson County (home to Kansas City) is 23.27 percent black and 70.10 percent white, meaning the grand jury likely was racially mixed -- and suggesting perhaps that members of both races are growing tired of police abuse, especially against the black community. From a report at

A Jackson County grand jury has indicted a Kansas City police officer who sprayed a juvenile last May during protests at the Country Club Plaza, prosecutors say.

Nicholas M. McQuillen has been charged with one count of misdemeanor fourth-degree assault.

Court records say the 38-year-old Kansas City officer recklessly caused injury to the juvenile, who is only referred to as N.M. in the jury’s indictment, when he sprayed “fogger spray” into the girl’s face on May 30 at the Plaza.

What led to the spraying incident, which was caught on a viral video? (See video above.)

The indictment says the girl arrived at the Plaza with her father, siblings and others around 5 p.m. to attend the protest near Mill Creek Park. They were there for 30-45 minutes.

The jury reviewed various videos of the incident, including drone footage from the Kansas City Police Department and cell phone video.

That cell phone video shows that the protesters were in the park and on the sidewalks while KCPD officers lined the streets, facing them, according to the indictment.

Court records say KCPD approached an unidentified man near N.M. three times, repeatedly telling him to get back on the sidewalk or he would be arrested. The man disputed these allegations and said he did not hear the officers.

The cell phone video shows the girl standing on the sidewalk as the man makes statements at police, apparently standing on the street.

Court records say McQuillen then gets another officer’s attention, points toward the man and approached with the fogger spray in hand. The protesters stepped back onto the sidewalk. The man and N.M. both said the officer didn’t say anything about the man being under arrest or that N.M. should get out of the way.

When McQuillen and the other officer approach the protester, they reach for him to take him into custody. People or family members with the man attempt to pull him back, but N.M. did not participate or pull the officer.

Court documents say the video shows McQuillen pull the man into N.M. and then forward. The movement, according to the cell video, forces N.M. between the two men and the girl touched the officer’s vest. 

At that point, McQuillen is seen raising the fogger spray to the girl’s face/eye level and spraying in close proximity. N.M. said she reached for her face and pulled farther back into the crowd.

According to her testimony, she experienced blurred vision, pain and a burning sensation in her eyes for some time.

McQuillen declined to provide a statement to investigators. He will receive a summons to appear in court at a future date, prosecutors say.

Police officials are standing behind McQuillen:

The Kansas City Fraternal Order of Police Lodge 99 issued the following statement after the indictment was announced Friday night:

“The FOP is aware of the misdemeanor charge brought against Kansas City, MO Police Officer McQuillen.

“The FOP is very disappointed that the Prosecuting Attorney would bring such a charge when Officer McQuillen employed the lowest level of force available to him. The use of OC spray is an extraordinarily valuable tool that often results in the de-escalation of a given situation. And, the individual here had no injuries or lasting effects from the use of the OC spray.

“We believe this charge has no merit and the FOP will fully support Officer McQuillen as he challenges it in Court.”

A lawsuit has been filed over the incident. Tom Porto, an attorney for the juvenile's family told the Kansas City Star

Attorney Tom Porto, who is representing the victim, said in a statement Friday that the officer’s charged conduct is “absolutely indefensible.”

“A 15-year-old girl had the equivalent of bear spray sprayed in her face from centimeters away,” Porto said. “The grand jury got it right.”


On a personal note, I was pepper sprayed in the face, while inside my own home, during my "arrest for blogging" in 2013. Would I have supported criminal charges brought against Officer Chris Blevins in that case? Absolutely. Was there any chance of that happening in Shelby County, AL? No.

Thursday, March 18, 2021

Could toxic waste from Miller Steam Plant ash ponds become a headache for Alabama Power and a threat to supplies of drinking water in the Birmingham area?

Miller Steam Plant in west Jefferson County, AL


Alabama Power's Miller Steam Plant has been named the No. 1 emitter of greenhouse gases in the country. That could become a political headache for Alabama Power, which with its ties to the North Birmingham Superfund scandal, already has environment-related issues to deal with. More importantly, Miller Steam Plant could prove a threat to supplies of drinking water in the Birmingham area. From a report at

[Last week], the U.S. Senate overwhelmingly approved the nominations of Merrick Garland as U.S. Attorney General and Michael Regan as head of the Environmental Protection Agency.

Alabama Power, Drummond Company, and Balch & Bingham, the Three Stooges who draped themselves around the Trump Administration and Balch Zombie Jeff Sessions, will now have to face the loud and thundering music.

Alabama Power and its CEO Mark A. Crosswhite had the audacity to claim they were victims of the North Birmingham Bribery Scandal and went a step too far in claiming they had “no involvement in these matters.”

Now the U.S. Department of Justice and EPA need to zero in on the environmental racism in Jefferson County, and we are talking more than just North Birmingham, whose population is 92.5 percent African-American.

How could this go beyond North Birmingham? explains: 

North Birmingham appears to have been a side-show, a distraction to the the real objective: squashing the tiny environmental group GASP before the group could start probing the Miller Steam Plant, one of the biggest greenhouse polluting, coal-burning plants in the nation, according to recent news reports.

We, the CDLU, are not environmentalists.

However, having investigated numerous unsavory businesses and inept government agencies in the past two decades, we understand that something at the Miller Steam Plant in Jefferson County made Alabama Power concerned, gravely concerned.

We believe that concern could have been what environmental groups like GASP and others have been discussing about for years: ash ponds of coal waste next to water supplies.

How serious could this problem be? Ban Balch reports: 

Now we have obtained a letter filed last October with the Alabama Department of Environmental Management by an environmental engineer who writes:

While I am certain that the current use of these ash ponds complies with current standards, past practices (unregulated at the time) may have resulted in highly toxic wastes being deposited in the ponds.

[T]he fact that the Miller facility was constructed in the late 1970’s, prior to the full implementation of the federal TSCA and RCRA regulations mean that is possible that PCBs, asbestos, and boiler cleaning wastes could have been placed (legally) in the pond. When coupled with the fact that much older Powell Avenue Steam Plant ash was placed in the past, I believe, at a minimum, ADEM should have required APC to conduct historical research to determine if the extent, if any, toxic substances were placed in the pond.

Regan needs to investigate if historic toxic waste were ever placed into the ash pond and test deep inside the ash pond, and the water in and around the ash pond, known as the Locust Fork.

Has there been seepage? Have toxins knowingly been entered into the water supply? Did anyone know and cover this up?

If Regan indeed finds a cover up, he needs to hold those involved accountable and work with the U.S. Department of Justice to bring serious criminal charges against them.

Wednesday, March 17, 2021

Alabama GOP is so stuck on Trumpism that it has declared him one of our "greatest presidents," despite mountains of undeniable evidence to the contrary


In less than two months on the job, Joe Biden has made remarkable progress on the noxious mess he inherited from Donald Trump. We are starting to see promising reports, for the first time in more than a year, on the COVID 19 pandemic. There are signs the economy is starting to rebound from stagnation under Trump. But leaders in the Alabama Republican Party seem to be happily ignoring all the positive signs that can come when we have actual leadership in the White House. 

In fact, the Alabama GOP seems to be clinging to the last vestiges of Trumpism, in a way that would be comical -- if it weren't so sad. Get this: The state GOP has issued a proclamation that Trump was "one of the greatest presidents of all time." That made me spew milk out of my nose, but I'm not making it up. From a report at

Alabama Republican Party leaders have declared former President Donald Trump “one of the greatest presidents of all time.” A framed copy of the declaration will be given to Trump soon in Florida.

The state Republican Party Executive Committee unanimously voted for the proclamation Feb. 27 at its winter meeting in Montgomery. Former state Rep. Perry Hooper Jr. of Montgomery, one of the resolution’s sponsors, will travel to Mar-A-Largo to deliver a framed copy of the resolution to the former president, reports said.

I suspect Hooper and friends are engaging in a glorious round of butt-kissing because they believe Trump will be the party nominee in 2024. It would take a special kind of brain death to truly believe Donald Trump -- largely responsible for a pandemic that claimed more than 500,000 American lives -- was a great president. For whatever reason, these folks are laying it on thick:

The resolution was submitted by several party executive committee members and says Trump was one of the “most effective Presidents in the 245-year history of this Republic.” It cites Operation Warp Speed for delivering “safe and effective COVID-19 vaccines in record time,” the “largest tax cuts and reforms in American history,” withdrawal from “the job-and-trade-killing Trans-pacific Partnership and NAFTA” and appointing “three constitutional conservative justices to the U.S. Supreme Court.”

Trump has taken credit for the Operation Warp Speed vaccine-development effort. But does he deserve it? Alison Michaels, of The Washington Post, conducted a podcast interview with Dr. Nicole Lurie, of the Coalition for Epidemic Preparedness Innovations:

Allison Michaels: Pfizer, the company behind the vaccine awaiting FDA approval, has distanced itself from Operation Warp Speed. And critics say the initiative has fallen short on goals of delivering 300 million or so doses of vaccine by the end of the year. So just how much did the Trump administration's efforts directly affect vaccine development? Has Operation Warp Speed done more to help the process than our government's preexisting pandemic response system? What's hindered the process and what's helped, and who deserves credit? This is "Can He Do That?", a podcast that explores the powers and limitations of the American presidency. I'm Allison Michaels. I went to get some answers from someone who knows quite a bit about this subject.
Dr. Nicole Lurie: My name is Nicole Lurie. I'm a primary-care doctor, and I currently work for the Coalition for Epidemic Preparedness Innovations, which is the largest funder right now of COVID vaccines, outside of the United States, but was formed as a lesson learned after Ebola to develop vaccines for potentially epidemic diseases. Prior to that, I served as the Assistant Secretary for Preparedness and Response at the U.S. Department of Health and Human Services. I was very much involved in our responses to H1N1 and to Ebola and to Zika, all of which required intensive efforts to make vaccine.
Allison Michaels:
So it's safe to say you know a lot about vaccine development.
Dr. Nicole Lurie: [ Laughs ]
Allison Michaels: To get the most out of my conversation with Dr. Lurie, I wanted to start by asking her about the role the government usually plays in the development of vaccines. How big is the government's footprint in the vaccine-making process?
Dr. Nicole Lurie: Well, when the government is not in the midst of a large pandemic, the government is involved in a couple of ways. First of all, through NIH, there's always a lot of basic science research that goes on to learn about different pathogens, different viruses and bacteria. And in addition, in BARDA, the Biomedical Advanced Research and Development Authority, there is a requirement that the federal government make vaccines and other countermeasures against threats to our national security, whether they are from bioterrorism or from naturally occurring diseases. So, day in, day out, there is an effort that is seamless across CDC, NIH, and BARDA that works on vaccine development. DoD is also an essential part of this.
Allison Michaels: So, normally, developing a vaccine is this multi-year process, but that was reduced to a matter of months to find a vaccine for the for the novel coronavirus. Can you explain what had to happen from a federal-policy standpoint to make development of this vaccine possible at such a fast clip?
Dr. Nicole Lurie: Well, first of all, I want to correct a little bit of a misunderstanding here. The public has this impression that we just started working on vaccines and especially mRNA vaccines, you know, earlier this year. In fact, as a lesson learned after the H1N1 pandemic, the federal government took the position that it needed to shift its strategy from what we call a "one bug, one drug" approach to a platform approach in which we could potentially make a generic platform where you might be able to make a vaccine against a new pathogen really quickly. So, in fact, the government has been working on things like mRNA vaccines on other platforms for almost 10 years.
Allison Michaels: Just a note here. Messenger RNA, or mRNA, teaches cells to build the protein found on the surface of the coronavirus. The two vaccines submitted for FDA approval, the one from Pfizer and another one from the biotech company Moderna, both rely on mRNA. Other vaccines in development don't use mRNA but rely on other science, like injecting a harmless version of the virus into patients. Platforms for many different scientific approaches to vaccines have been in development for years, as Dr. Lurie was explaining.
Dr. Nicole Lurie: So, fortunately, through a series of successive improvements, some of those platforms were ready to move forward when the coronavirus struck.
Allison Michaels: So what pieces of the development process were expedited then? We had sort of the pieces in place, the fundamentals in place, for these vaccines, but what was sped up in the past few months?
Dr. Nicole Lurie: So, a number of things were sped up. First of all, in general, we didn't pause between the various phases of vaccine development or didn't pause for very long between phase one, phase two, phase three. In some cases, a number of things were done in parallel instead of in sequence because we all knew that we were in a race against the virus. And then, finally, we started activating manufacturing capacity and building more early on because we knew if this persisted, we would need to manufacture a lot of doses and that we would need to start that process -- which is very expensive -- but to start that process long before we knew if those vaccines worked.
Allison Michaels: So how much of that expedited process would have happened in any pandemic setting as sort of an autopilot? Were there pre-existing plans for activating this immediate, urgent need?
Dr. Nicole Lurie: I think there's precedent for it, in fact, in H1N1, when, in fact, we made a vaccine against a novel flu strain very quickly. No, that was easier because we all knew how to make flu vaccine, and we were confident enough in the vaccines that we were making that we started the manufacturing before the clinical trials were complete. But it wasn't a novel idea. It's also fair to say that this has happened around the world, not just in the U.S.
Allison Michaels: I guess I'm trying to sort of determine how much this particular administration factored into the expedited development of this vaccine or whether or not we might have seen this under any administration, given the circumstances.
Dr. Nicole Lurie: I think it's a great question. In general, for most components of this, we would have seen this in any administration, under the circumstances. I think one of the things that, if it happened early on, as we saw, as, you know, the day or the day after the sequence was downloaded, scientists around the world, including at NIH and including at BioNTech and others, downloaded the sequence and started working on a vaccine.
Allison Michaels: Here, Dr. Lurie is referring to the genetic sequence of the coronavirus that Chinese scientists released back in January of 2020.
Dr. Nicole Lurie:I think what was a little bit slow in the U.S. was enough of a recognition that a pandemic was coming, that we could pour the billions of dollars into it that we ultimately did early. And so while vaccine development started and started ramping up, you know, I asked myself a little bit, "Had the Warp Speed money been available sooner, would we have been ahead of where we are now?" and I think it's an unanswerable question. But the processes to do this, to work across government, across agencies, are processes that I think started in the Bush administration, carried all the way through the Obama administration.
Bottom line: The processes to create Operation Warp Speed were in place roughly 16 years before Trump took office. Does he deserve credit for fixing a problem he largely created? Absolutely not, no matter what the Alabama GOP wants you to believe.

Tuesday, March 16, 2021

Rush Limbaugh proved there was no line of decency conservatives wouldn't cross, paving the way for Sean Hannity, Tucker Carlson, even Donald Trump

Rush Limbaugh


Rush Limbaugh has been dead for almost a month, but his right-wing talk show still is being broadcast in reruns on stations around the country. So this question still is worth asking: Was Rush Limbaugh good for America? Republican lawmakers in Missouri apparently think so because they are pushing for a day to honor the native son, who died on Feb. 17 of lung cancer. Before Missourians reach any firm conclusions on the issue, they should read "Rush Limbaugh Made America Worse," by Alex Shephard at The New Republic. Subtitle of the piece: "The racist, sexist radio host played a pivotal role in injecting cruelty and conspiracy into conservative mass media." Writes Shephard:

Twenty-five years ago, Rush Limbaugh graced the cover of Time magazine. Wearing a striped shirt, an expensive suit, and a look of total contempt, he held his trademark cigar between two stubby fingers. A thick plume of smoke obscured part of his face, styling him in brimstone. The issue’s cover asked a simple, almost innocent question: Is Rush Limbaugh good for America?

The answer to that question was as obvious 25 years ago as it is today: Limbaugh was not merely bad for the United States, he was bad in uniquely terrible ways, and uniquely terrible right up until the end. He is near the top of any list of malign actors in the post-Vietnam period.

Obituaries of Limbaugh, who died on [Feb. 17] at the age of 70 of lung cancer, have—much like the Time cover—danced around this fact in the same “have the cake and eat it too” fashion. Limbaugh’s politics have been sanded down in these tellings, which label him as merely “controversial” or “polarizing.” The New York Times described him as “relentlessly provocative,” a particularly weaselly way of describing his approach to talk radio. The Wall Street Journal wrote that he “rode a wave of national polarization.” Nearly every obituary notes that he was “influential.” 

These are the kinds of things you could say about so many people in politics: generic appellations that would leave someone unfamiliar with Limbaugh’s oeuvre confused as to why this instant bellowing of eulogy is even necessary to memorialize a man who merely possessed these ordinary qualities. What earns Limbaugh this special peal of immortalization is the qualities that these obituary writers know full well but have assiduously buffed into nothingness in their drafts: that Limbaugh’s politics were forged in a crucible of hatred and cruelty; that his racism and extraordinary misogyny are the only standout contributions he made to the world.

As you can see, Shephard isn't mincing words here -- and his critique doesn't get any softer:

Limbaugh was undoubtedly influential. But he didn’t ride a “wave of national polarization,” he was the source of its tidal pull, directing it with a bullhorn for decades. He first appeared on the airwaves shortly after the Fairness Doctrine was repealed, helping to introduce a new style of decidedly unfair media. His politics were vicious and deceitful, aimed at undercutting liberal institutions in service of policies that made people like Limbaugh wealthier, often at the expense of his listeners. He thrived on making people angrier and more alienated, on obscuring the truth, and rewarding meanness at every turn. 

You could fill shelves of books with Limbaugh’s vile statements. He spent decades denigrating gay people, mocking people with AIDS, and fighting against equal rights for LGBTQ people. He suggested that Jesse Jackson looked like “all composite pictures of wanted criminals” and compared watching NFL games to watching the “Bloods and the Crips without weapons.”

Limbaugh's ugly thoughts on race hardly ended with the NFL:

His attacks on America’s first Black president were relentless and disgusting—Obama was a “halfrican American,” an “affirmative action candidate.” Feminists were “feminazis,” a term he must have used thousands of times. A chauvinist and sexist in every way one could possibly be, Limbaugh mocked anyone who wasn’t rich or white or male for daring to seek equality. His show reveled in punching down, particularly on marginalized communities, as the purpose of politics itself. Whatever discussion there is to be had about whether he was the author of this unique style of grievance politics or merely the man who profited most from it is a moot point. Limbaugh loosed a dark and ichorous ooze of anger and resentment into our political groundwater, one that has polluted American politics and culture. His legacy is a civic Superfund site, an untreated hog lagoon that continues to spill its poison into the cracks in our democratic foundation.

Limbaugh's influence was so strong that he spawned copy cats -- and he even paved the way for Donald Trump. Writes Shephard:

Limbaugh’s energy had dimmed in recent years. That was, to a certain extent, a reflection of his fading health; those cigars doing unto his body what he’d done to our body politic. But it also pointed to the fact that he was hardly unique anymore: His influence was felt everywhere; a thousand copycats still prowl the media’s darker corners. Sean Hannity’s smarmy bloviating approach to opinion programming, Glenn Beck’s Looney Tunes conspiracy theorizing, Tucker Carlson’s white grievance politics and nativism all owe a great debt to Limbaugh. It’s a debt that the rest of us have to pay. Limbaugh paved the way for media that was angrier and dumber, and we are all worse off. 

Donald Trump, who awarded Limbaugh the Presidential Medal of Freedom last year, also owes a huge debt to the broadcaster. Trump’s own seemingly improvised, crass, and mean-spirited speeches weren’t too distinct from Limbaugh’s own radio show transcripts. Trump’s electorate was, of course, Limbaugh’s audience—the alienated and aggrieved who wanted someone to “fight” for them and against everyone who was against them, the liberals, the experts, the feminists, the nonwhite. Limbaugh, maybe more than any other figure in recent American political history, made Trump inevitable.

This inevitability extends beyond politics. Limbaugh’s entire career was based on a series of provocations; he was, to borrow from Chappelle’s Show, a habitual line-stepper. What he proved, in the end, was that American politics and culture had no red lines. You can be as racist and sexist, as hateful and divisive as you want—and millions of people will love you for it. Rush is gone now, but he leaves a baleful reckoning behind for the rest of us to face.

Monday, March 15, 2021

Cop's malfunctioning body camera leaves behind a flurry of questions after reporter Andrea Sahouri is acquitted on criminal charges in Des Moines, Iowa

Andrea Sahouri


An Iowa newspaper reporter has been found not guilty of criminal charges related to her coverage of protests last summer stemming from the death of George Floyd in Minneapolis.

Two major questions still hang over the trial that produced acquittals last week for Andrea Sahouri, of the Des Moines Register:

(1) Was officer Luke Wilson truly unaware that his body cam was not capturing video during the arrest?

(2) Should prosecutor John Sarcone have proceeded with the case, despite widespread criticism over apparent violations of free-press rights -- even after he should have known video of the arrest was missing, meaning the prosecution rested almost totally on Officer Wilson's word?

The Sahouri trial hits close to home here at Legal Schnauzer because I, too, have been arrested for practicing journalism and spent five months behind bars in Shelby County, Alabama, (Oct. 2013-March 2014)  in a case that drew national and international news coverage.  

The body-cam issue likely was central to the Sahouri trial, as noted in this report from the UK Guardian

An Iowa police officer who pepper-sprayed and arrested a journalist covering a Black Lives Matter protest acknowledged on Tuesday that he failed to record the interaction on his body camera and did not notify a supervisor as required.

Luke Wilson said his body camera was on when he arrested Des Moines Register reporter Andrea Sahouri on 31 May 2020, and that he believed he had activated its record function.

His testimony came on the second day of a trial in which Sahouri and Spenser Robnett, her former boyfriend, are charged with failure to disperse and interference with official acts. The prosecution has drawn widespread criticism from media and human rights advocates, who say Sahouri was doing her job and committed no crimes. The pair face fines and even jail time.

The newspaper assigned Sahouri to cover the protest for racial justice at Merle Hay mall in Des Moines, days after the death of George Floyd, a Black Minneapolis man who was killed when a white officer put his knee on his neck for nine minutes. Hundreds of protesters gathered outside the mall. Sahouri reported details live on Twitter.

The scene at the protest was chaotic:

Wilson, an 18-year veteran of the Des Moines police department, said he found a “riotous mob” breaking store windows, throwing rocks and water bottles at officers, and running in different directions. He said his unit was told to clear a parking lot, and he used a device known as a fogger to blanket the area with clouds of pepper spray.

He said the chemical irritants worked in forcing most of the crowd to scatter, including Robnett, but he decided Sahouri should be arrested when she did not leave. Wilson said he was unaware that Sahouri, whose eyes were watering and nose was running from the spray, was a journalist.

Wilson said he grabbed her with his left hand while his fogger was in his right hand. Wilson said Robnett returned and tried to pull Sahouri out of his grasp, and Wilson deployed more pepper spray that “incapacitated” Robnett.

Under cross-examination by defense attorney Nicholas Klinefeldt, Wilson said he charged Sahouri with interference because she briefly pulled her left arm away while he was arresting her. He acknowledged, however, that he didn’t mention that claim in his report on the arrest.

Wilson said he only rarely used his body camera during his normal job at the city airport, wrongly believed it had recorded Sahouri’s arrest and was unfamiliar with body-camera policy.

Prosecutors say Sahouri and Robnett ignored orders to leave the area long before their arrests, while the defense argues any such orders weren’t clear.

Reported the Des Moines Register

A key issue in the trial was Wilson's body camera, which did not begin saving footage until 15 minutes after the arrest. Wilson testified he thought he had activated the camera in advance and did not realize he had not captured the encounter, although he noticed the camera was not responding as he expected. Although it is possible to recover unsaved video after the fact from Des Moines police body cameras, the missing recording was not discovered until after the camera memory had already overwritten the footage in question.

From personal experience, I've seen law-enforcement officers tell all kinds of fanciful stories while under oath in a court of law. In this case, we will assume Wilson was telling the truth, but that leaves this question: Why did the prosecution press on with an already shaky case? From the Register

After the verdict was announced, media and civil liberties groups praised the outcome. Amnesty International in a statement said the case is part of a growing trend of U.S. police forces "committing widespread and egregious human rights violations" in response to demonstrations. . . . 

The American Civil Liberties Union of Iowa denounced what it called an "outlandish prosecution" and called in a statement for reform at the Polk County Attorney's Office.

"The facts of [Sahouri's] arrest are appalling, but the fact that the state has pressed on in prosecuting her after these facts became apparent has been an embarrassment for Polk County and the State of Iowa, attracting national and international condemnation," Legal Director Rita Bettis Austen said.

I certainly can identify with Sahouri's ordeal. As for similarities and differences between our cases, here are a few:

* Sahouri was arrested on the job, while I was arrested at home, in my garage;

* Sahouri was hit with two criminal charges, both flimsy; there were no criminal charges at the time of my arrest. It was launched on totally civil grounds, apparently by a judge's "contempt of court" charge when I did not appear at a hearing for which no summons had been issued.

* Both Sahouri and I were pepper sprayed;

* I was hit with a resisting-arrest charge and found guilty even though officers did not show a warrant and did not state their reasons for being on our property until after I was wiping pepper spray from eyes. My arrest was unlawful on multiple grounds especially under U.S. Supreme Court precedent in Near v. Minnesota and Payton v. New York, so (like any citizen) I had every right to resist an unlawful arrest -- even though my "resistance" consisted of being shoved to a concrete floor three times.

* My wife was forced to take down articles from my blog -- and none of the articles ever were found at trial to be false or defamatory, and that's because there was no trial -- in order to get out of jail. Publication of Sahouri's work was not an issue at her trial.

Thursday, March 11, 2021

Johnny Dollar: How a self-serving governor and a wretched justice system took down the man who built Alabama's most successful insurance company (Part 2)



Johnny Dollar: The Real Life Story of John Wayne Goff, as told to Patrick Mansell (Amazon and Kindle, 2021)

Part Two

With his favored candidate in the governor's office, one might have thought John Goff's problems would begin to dissipate. Heck, Goff had even allowed Bob Riley's campaign to use his company jet. But even that -- maybe especially that -- blew up in Goff's face and left his insurance empire in tatters.

One of  the Riley administration's early moves was to have its Department of Insurance (DOI), under Commissioner Walter Bell remove Goff Group as administrator of the state's worker's comp risk pool. Goff's attorneys filed a lawsuit against the state and convinced Goff to include Bob Riley as a defendant. This posed the threat of forcing Riley to testify under oath about his alleged ties to Jack Abramoff, Michael Scanlon and Mississippi Choctaw gaming money.

Soon, Goff was under attack from several angles. It is believed XL reached an agreement with the DOI and Walter Bell to dig up dirt on Goff, with the DOI helping XL in its ongoing litigation. Writes Mansell:

On July 2, 2004, while the suit with XL was being litigated, the DOI filed an administrative complaint against Goff and his company, alleging they collected more than $800,000 from Alabama customers and agents without passing the money along to companies that were actually writing the insurance. The 60-count complaint was based on false information provided by XL. . . . The Department, by participating in the scheme to destroy Goff caused the rupture of his business and his reputation.  

When Goff's attorneys advised the DOI that they intended to expose Bell and other officials, Bell resigned and the department abruptly agreed to settle the administrative complaint against Goff. The DOI agreed to drop 59 of 60 counts if Goff would plead guilty to a minor charge of "failure to respond in a timely manner" to a DOI letter. The agreement stipulated that this was a civil matter, and Goff was not to be charged criminally. Goff signed the agreement with the understanding the matter was permanently settled, and he was free from any potential future criminal charges. But that is not how things worked out. Goff's lawsuit against the state, Bob Riley, and others had set off fireworks. And Riley used the U.S. Justice Department to fight back.

 Leura Canary, wife of long-time Riley supporter Bill Canary (head of the Business Council of Alabama, BCA), already had helped take down Riley opponent Don Siegelman -- so she was used again against Goff. The Goff lawsuit threatened to expose a number of Republican heavy hitters, including Bob Riley, Mike Scanlon, Jack Abramof, Bill Canary, Karl Rove, and others. As Mansell writes: "That was simply unacceptable. John Goff had to be stopped."

With that goal in mind, Leura Canary's investigators went back to Goff's dispute with ECS and XL/Greenwich, which had been settled via arbitration five years earlier. The DOI had agreed the matter was settled, was civil in nature, and Goff was not to face criminal charges. But Canary's federal office chose to ignore that ruling. Indicting Goff, attorneys later argued, was a clear case of double jeopardy. And Leura Canary proceeded despite glaring conflicts. Writes Mansell:

Membership in the BCA granted exclusive access to the Alabama Self-Insured Workers' Compensation Fund Inc. John was a competitor for Bill Canary's BCA workers' comp business. By attacking John and locking him up, Leura Canary would be able to silence his outrage at the governor's involvement in the shakedown of his business, and it would also serve to eliminate the competition John posed for her husband's BCA workers' comp pool. . . . Leura Canary was a uniquely conflicted prosecutor.

The jury convicted Goff of embezzling funds from an insurance company, conspiracy to commit mail fraud, and providing false documentation to a state agency. The trial included so many oddities that Judge Myron Thompson encouraged the defense to appeal right away because many issues could be attacked at the appellate level. If that was the case, why didn't Thompson declare a mistrial? That question remains unanswered. 

The appeal was unsuccessful, and Goff's 12-year sentence stood. Goff's first stop in the penal system was the notorious Federal Detention Center Atlanta. Many inmates say it is the last place they want to go. They are on lockdown for 23 hours a day, with no TV, no books, and food that has been described as "unrecognizable."

After about two weeks in Atlanta, Goff's next stop was Oklahoma City, where the prison was controlled by gangs. Then came Oakdale, LA, where Don Siegelman spent much of his prison time. It, too, was infested with gangs. But it did have a side benefit:

Oakdale was fortunate to have a few very talented black singers in its population. They would perform at the chapel every week, and this was a highlight for John. If he closed his eyes he could imagine he was listening to the Drifters. These guys were that good.

Finally, Goff was sent to the Federal Prison Camp Pensacola. It was about as pleasant as a U.S. prison can get:

There was a library, weight pile, chapel, mess hall, TV and game room, email room, telephone building, classrooms, soccer field, walking/running track, tennis courts, and gym.

Goff made it  a point to watch the prison's intramural baseball games, which tended to draw big crowds. Why?

In the camp were three professional baseball players, all there for drug convictions. One player was from the Boston Red Sox, another was from the Cleveland Indians, and the other played for the Atlanta Braves. Watching these men play was like watching a ballet. They could move like lightning. Every catch and throw was perfect. They elevated the game to a much higher level. 

 The Pensacola population was a diverse group:

There were professors, hedge-fund managers, surgeons and psychiatrists, politicians, business owners, bankers, and attorneys. There were artists, musicians, writers, and CPAs. There were even a couple of circuit-court judges.

Aside from being in prison, inmates at Pensacola had to deal with other unpleasantness:

Pensacola had a minor alcohol problem, but it had a big drug problem. Much of the drugs came through work details. And Pensacola's drug problem was to be taken seriously. The drug of choice was K2, a psychedelic, or better said, psychotic. Rarely did a month go by when an inmate did not completely wig out on that drug. 

In December 2018, Congress passed the First Step Act. Through that, Goff was released to home confinement on Sept. 30, 2019. In all, Goff was incarcerated for eight years. Acquaintances often ask Goff how he survived prison. Perhaps that is best answered by the last chapter of his book, which is devoted to family and friends who sustained him with their visits and encouragement.

That ends the book on a hopeful note. But the John Goff story is undeniably distressing. Any misdeeds he committed (if he committed any at all) almost certainly were settled in the civil environment and never would have been prosecuted criminally, except for Bob Riley's insecurities and vindictive nature.