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The tragic death of George Floyd will hopefully bring reforms that help ease racial tensions and move us toward greater equality in society.  One legal doctrine that allows police officers to avoid liability for acts of brutality and excessive force is the doctrine of qualified immunity that should be revisited in light of recent events.

What is the doctrine of Qualified Immunity?  

Qualified Immunity is a legal doctrine established in 1982 with the Supreme Court case Harlow v. Fitzgerald, 457 U.S. 800 (1982), to balance constitutional rights and reasonable officer actions by allowing officers to rely on the present state of law at the time of their actions.  This means the officer would not be found in violation of someone’s constitutional rights for following a law that was legal at the time and later ruled unconstitutional. Over time, this has developed in a way that protects an officer’s action above others’ constitutional rights so long as the specific type of violation in question is not “clearly established” as unconstitutional.  The Supreme Court has not defined exactly what “clearly established” means, although it has provided some limited guidance that it is more than a generic statement in the Bill of Rights but does not have to be a precedent with the exact same factual situation.

The Tragic death of George Floyd and the protests that have followed shine a new light on two major Massachusetts Supreme Court cases involving Race and how our Constitution is going to be interpreted.

The tragic death of George Floyd involves shocking actions that are likely to result in murder charges being filed against the officers involved. As a result of this injustice, protests are taking place in major cities with a major incident of violence in Minneapolis as a police station was set on fire.

From what I have seen of the video, it does not appear that Floyd was any type of threat to the officers.  There was simply no justification for having a knee to his neck; This method of restraining someone is not taught in police trainings and other police officers have voiced their disapproval of the officers’ actions.  From what we know, the video evidence presents an overwhelming case of police brutality with no justification.

In a Massachusetts OUI drugs case, the Commonwealth needs to prove the concentration of drugs in your system to be able to prove you were under the influence of a drug like marijuana, heroin or a prescription drug.  The Commonwealth can attempt to show you were impaired based on observations, but typically that evidence will not be sufficient to support a conviction.

Often, the Commonwealth will attempt to use medical evidence to prove an OUI drugs charge.  However, a Massachusetts OUI Lawyer should object to this evidence.  There is a leading case called Commonwealth v. Shellenberger, 64 Mass. App. 70 (2005) that deal with the issue of when a notation of drug use in medical records can come into evidence.  In the Shellenberger case, the defendant was charged with motor vehicle homicide by negligent operation.  The defendant’s medical records contained a reference to amphetamine in her system.  The Massachusetts Appeals Court found that the reference to the amphetamine in her system was an error of law.  The Appeals Court held that to be properly admitted into evidence there would have to be:

  1. reliable evidence as to the amount or concentration of the drug in the defendant’s system; and

The United States Supreme Court is being asked to considers a petition for Certiorari regarding whether Post-Miranda silence violates the privilege against self-incrimination after the defendant’s arrest when it is allowed to be used by the prosecutor during their case-in-chief to prove a criminal charge.

In the case of Adalberto Frickson Palacious-Solis v. United States of America, the defendant was charged with federal drug trafficking. The charge was conspiracy to possess with the intent to distribute and possession with the intent to distribute over five kilograms of cocaine while on board a vessel subject to the jurisdiction of the United States.

His first trial ended in a hung jury.  The Government elected to try the case again as is there right and the defendant was convicted at the second trial.  To read the filings in the case you can go to the Scotus Blog link.

I read an amazing book this past weekend called Man’s Search for Meaning by Victor Frankl. Many have already read this book, but if you read it in high school or a long time ago, it is worth a second read.  I want to share with you my thoughts about the book.

Who was Victor Frankl?  

Victor Frankl was a doctor, psychologist and neurologist who survived the Concentration Camps during the Second World War.  He wrote Man’s Search for Meaning to explain what he went though and detail what he learned about people during that experience and the meaning of life.  Man’s Search for Meaning is a book about his thoughts on the Meaning of Life and the development of his concept of Logotherapy where physical and mental health are determined by whether there is a purpose in our life.

As a Massachusetts OUI Lawyer, I have encountered many individuals struggling with addiction.  It is important to understand this:  You can always get help; it never hurts your case.  You may have a drinking problem, but you can still be found not guilty of your OUI charge.  Do not let your desire to win in court, prevent you from getting the help you need to move forward with your life. One of the Core Values we have at DelSignore Law is that regardless of the outcome of your case, we want to help you improve your life, move forward in a positive way and we want to give you as much information, advice and support that we can to help you achieve a better life.  We send our clients the Book the Slight Edge after the case; the reasons we do this, is that while helping someone win and get their life back after an OUI or criminal charge is rewarding and what we are paid to do, it is those clients that we have helped in a meaningful way in life and beyond the courtroom that will be the true reward for me as a person and an attorney at the end of my career.

I recently read the Time Magazine Special Edition on Addiction and wanted to share the key points from the magazine.

WHAT CAUSES ADDICTION?

The Psychology of Persuasion Lecture by Dyke Huish was one of the best lectures I have heard for criminal defense lawyers wanting to improve their trial skills.  Having extra office time, I have made it a goal to listen to all the recording of seminars that I have purchased over the years.  This lecture was terrific and I wanted to share what I learned from the CD.

In this Blog, I will discuss the lecture of Dyke Huish, a criminal defense lawyer from California.  He gave this speech at the National Criminal Defense Lawyers Association Meeting in Philadelphia.

He made many excellent points that are worth remembering for lawyers. I will recount them here and give my takeaways as to how I will use these ideas in my upcoming trials.

Gun crimes in Massachusetts often involve issues of whether there was a Constitutional basis for police action.  Here are some common legal issues:

  1.  Was there Reasonable suspicion to stop your car;
  2. if there was reasonable suspicion, was there a basis to order you from the car;

Those facing a Massachusetts Drug Distribution or Trafficking charge often contest the Constitutional basis of the search and seizure as part of the defense to the case.  This was the case in Commonwealth v. Costa, which began as a drug distribution case out of the New Bedford District Court and was decided by the Massachusetts Appeals Court on April 10, 2020.

The Appeals Court found that a search warrant was not based on probable cause as it did not establish the relialbiity of the confidential informant.  In drug distribituion and trafficking offenses, it is very common that the police will obtain a warrant to search a house based on information provided by a confidential informant.  The informant will provide information that results in the police obtaining a warrant.  The Costa case involved this type of investigation by the New Bedford police department where they seek to search a house based on probable cause being established as a result of a controlled drug buy.

I have handled many drug cases where the New Bedford police have used an informant to attempt to get a warrant.

As a Massachusetts Criminal Defense Lawyer, often the most promising defense in a case of drug distribution or a gun possession charge, is an attack on the Constitutional basis for the stop.  In many cases, police came that a quick transaction was an illegal drug sale and use that as a basis to seize a person and search their person.  When these cases make it to court, it is because the person had some illegal substance on them or illegally possessed a firearm.

That was the legal issue under the Fourth Amendment and Article 14 that the Massachusetts Appeals Court had to address in the case of Commonwealth v. Kearse, decided on April 9, 2020.

What happened in the Kearse Case?  

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