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Showing posts with label gun violence. Show all posts
Showing posts with label gun violence. Show all posts

Wednesday, January 19, 2022

Family in fatal police shooting demands transparency

Fall River Police Department
Photo by Kenneth C. Zirkel (CC BY-SA 4.0)
At a rally in Fall River, Mass., on January 15, the family of Anthony Harden, who was killed by police in November, demanded transparency in the investigation into the shooting.

News reports state that Harden, 30, became involved in a physical altercation with two police officers trying to arrest him at his home.  Harden was confined to the home with a GPS bracelet while charges were pending in an assault case, WBZ reported in December.  According to police, Harden repeatedly stabbed at one of the officers with a metal object, possibly a steak knife, and the other officer shot and killed him.

Bristol County District Attorney (DA) Thomas M. Quinn III investigated and announced in December that police had complied with the department use-of-force policy, WBZ reported.  But the family has not yet seen the full record of the investigation, the Fall River Herald News reported after the "Justice for Anthony" rally on Saturday, and the family alleges inconsistencies between a private autopsy and the DA's conclusion.

In light of the police accountability movement that had erupted in recent years in the United States, my Freedom of Information (FOI) Law seminar in the fall semester took up law enforcement transparency as a special topic.  Sifting the voluminous writing on police accountability in scholarly, NGO, and popular literature, I found, probably unsurprisingly, that lack of transparency is often a volatile fuel of misunderstanding and vehement distrust between people and police in these matters.  Worse, it doesn't always have to be.

At risk of generalizing to the detriment of the many, many police officers and departments that uphold the law with integrity, there remains the conventional wisdom that police are notorious for resistance to transparency.  My own youthful interest in FOI law was spurred by, and, in fact, a factor in my decision to go to law school in the 1990s was, frustration dealing with the Rockbridge County Sheriff's Office when I was a student journalist in Virginia.  

FOI "audits," occasionally carried out by media and NGOs to test state open records compliance, invariably test police, because a characteristic reluctance to comply with the law, ironically, juxtaposes so sharply with the urgent life and liberty interests of persons subject to police power.  The classic tension in this vein is nicely encapsulated by Amy Sherrill's report on police compliance for a 1999 Arkansas audit.  The piece might as well have been written yesterday; secrecy in policing is a persistent devil.

For my October class, besides some introductory material such as the law enforcement exemption in the federal FOI Act (FOIA) (subpart (b)(7)), after the states have modeled many statutory open records exemptions, I assigned:

  • State ex rel. Standifer v. City of Cleveland, 2021 Ohio 3100 (Ct. App. Sept. 3, 2021);
  • Emanuel Powell, Unlawful Silence: St. Louis Families’ Fight for Records After the Killing of a Loved One by Police, 57 Am. Crim. L. Rev. 65 (2020); and
  • Somebody: Police, The Intercept (Apr. 14, 2020) (podcast ep. 3).

There is so much to unpack on this topic that I had to be judicious.  The Standifer case, arising from an investigation into police violence in Connecticut, frames the subject with First Amendment access implications and the balance between police transparency and the rights of persons named in police records, including police officers themselves.

I can't say enough about the Powell article.  An attorney with ArchCity Defenders, Emanuel Powell related a personal and powerful narrative with a well informed and reasoned call for reform.

The entirety of The Intercept podcast, "Somebody" season, is worth the time.  For this class, I chose the "Police" episode, especially for its audio recordings of a mourning mother, Shapearl Wells, desperately seeking answers in the death of her son, and what she faces with police who are sometimes understanding but more often defensive, guarded, and harsh with her.  The audio medium demonstrates, in a way a cold transcript could not, the communicative disconnect between Wells and police, and the insult, however unintended, of unnecessary opacity upon an already tragic injury.  Somebody was a joint project of the Invisible Institute and comes with, especially useful for secondary school, a 10-unit teaching guide

There are some fascinating online clearinghouses on police data, such as NGO Mapping Police Violence and the Invisible Institute's Citizens Police Data Project, the latter focusing on Chicago, having begun as a collaboration with the University of Chicago.  The annual program of the National Freedom of Information Coalition (NFOIC) in fall 2021 featured informative sessions on police transparency reform and tracking police misconduct records (latter trailer only).  Tomorrow, I plan to attend virtually a plenary panel of the Communications Law Forum of the American Bar Association, "Racial Injustice Exposed on Camera: Police Transparency and Government Access in a Viral World."

I am open to persuasion on the basis of what I might not know about the investigation into Harden's death.  But on the face of it, I see no reason at this point for withholding investigative records, especially the autopsy.  Law enforcement authorities sometimes fear record release because it might compromise the public's position in seemingly inevitable litigation.  But discovery will bring the evidence to light anyway, and public entities shouldn't get to hold their cards tightly when accountability for lost life is at stake.

It's especially troubling that on the Bristol County DA website, there is, at the time of this writing, not a single mention of Anthony Harden.   The last two press releases from the office, before and after announcement of the conclusion in the Harden investigation, regarding sentencings in other matters, touting the DA's success.  The 11-page report on the Harden matter, described by The Herald News, I cannot find online, not at the DA's site, nor from the State Police Detective Unit that conducted the investigation.

So one might understand how the Harden family, and families similarly situation around the country, might worry that the political heads of law enforcement are concerned more with reelection than with justice.  Transparency would not necessarily solve all ills, but it might diffuse tension and enhance public confidence by some measure.

Wednesday, December 29, 2021

News reports heroicize resistance to robbery, but storeowner's murder counsels common law wisdom

Mahaseth and his wife
(posted to Twitter by Sam Smink, WHDH 7 News)
A man was charged in early November for fatally shooting a Fall River, Mass., convenience store owner.

The murder of Stop N Save owner Lal Kishor Mahaseth in October shocked the Fall River community, near where I live in eastern Rhode Island.  But the circumstances that gave rise to it are all too familiar in Massachusetts south coast cities.

To help my Torts I class wrestle with the interrelated defenses of self, other, and property, I sometimes show a video of a local convenience store owner who fought back against would-be robbers.  When the viewer knows that no one was seriously hurt in the end, the video can be funny, while stirring serious conversation on matters such as tort doctrine, "stand your ground" laws, and the expectations of the social contract in the unique American culture of guns and personal responsibility.

Sadly and oddly, there are many videos from which to choose for this exercise, even limiting the search to nearby New Bedford, Mass.  My favorite video dates to 2012, when owner-operator Nicholas Dawoud turned the tables on assailants at the St. Elias Mini Market.  This story from WJAR has it all: robbery turned to personal threat; the frustrated defender, informed by past offenses, erupted; and other local customers joined the fray.

The tragedy in Fall River layers the problem with an added complexity.  Do news stories that glamorize defending locals incentivize a wrong choice?  Surveillance video in the Fall River case reportedly shows that 54-year-old Mahaseth resisted his armed assailants, at one point throwing a chair at them.  Does citizen frustration with failed policing in stressed economic times justify a different response to the problems of privileging defense?

Historic common law norms favor life over property in all circumstances.  The result is a familiar law school hypothetical with which students often struggle: the rightful owner of property has no privilege to commit personal attack to defend against threatened violence to dispossess, as long as the threat is merely contingent (albeit often unprovably so in real life) on the owner's refusal to surrender.  The theory is that no one will be hurt, and the wronged property owner can resort to assistance by proper authorities.

However, owing to the powerful American ethos of property and personal responsibility, the historic common law result is as likely to be excepted as applied, in practice.  The glamorization of physical defenses of property such as Dawoud's reinforces the incompatibility of the common law logic with many Americans' thinking.

Mahaseth, who was born in Nepal and earned a degree there in education, is survived by his wife and three children, The Herald News reported in October.  Prosecutors charged 37-year-old Nelson F. Coelho with murder, attempted armed and masked robbery, and carrying an illegal firearm, Mass Live reported in November.

[I acknowledge a kind note of Prof. Volokh, who aptly observes that non-deadly force in defense of property is permitted by common law.  I admittedly conflated defense by force at all, as I suggest, or fear, that the nuance is lost on the aggressor who responds violently, and potentially fatally.]

Monday, June 28, 2021

No duty: Court clears homeowner of liability in fatal shooting that sparked town ban on Airbnb

Not where the party was: historic Henfield House in Lynnfield, Mass.
(photo by John Phelan CC BY 3.0)

A homeowner is not liable in the shooting death of a party guest in a case that sparked a town ban on Airbnb, the Massachusetts Supreme Judicial Court ruled on June 7.

A 33-year-old father of two, Keivan B. Heath was shot and killed at a house party in Lynnfield, in northeastern Massachusetts, in the early-morning Sunday hours of Memorial Day weekend in 2016.  The plaintiff in wrongful death sued party organizers and the homeowner, who had rented out the house.

According to the court opinion, drawing facts from the complaint with reasonable inferences in favor of the plaintiff, defendant Victor had "informed the [homeowner] that he planned to hold a college reunion party. However, he advertised a Saturday event on social media as the 'Splash Mansion Pool Party,' open to 'Special Invitation & Girls Only,' with three named disc jockeys to provide the music."  More than 100 persons attended.  

The property was the home of the Styller family.  The property comprised "a 5,000 square foot home, a three-car garage, a 2,000 square foot patio, an in-ground heated pool, and a pool house with a fireplace and a bar on a three-acre lot in Lynnfield."  Defendant Styller

rented out the premises for short periods of time using a variety of Internet platforms [including Airbnb and HomeAway (now Vrbo), according to Boston magazine]. During each rental, the [Styller family] would leave the property and stay elsewhere. In the listings, the defendant touted the property's secluded location, fenced-in yard, and electronically operated gates. He also described the property as being in one of the safest areas in Massachusetts. Renters used the house for, among other things, business retreats, conferences, "photo shoots," and reunions.

The court described the tragedy:

At approximately 3 a.m., police received two 911 calls reporting that someone at the party had been shot; one caller said that the decedent was "dying," and the other reported that people were attempting cardiopulmonary resuscitation and then said, "he's gone." Police arrived to find many vehicles leaving and people fleeing on foot. The decedent was lying alone, face up and unresponsive, near the pool. He was transported to a nearby hospital, where he was pronounced dead in the emergency room. The cause of death was two gunshot wounds to the chest.

The murder remains unsolved.

Affirming dismissal in favor of Styller, the SJC opinion is a straightforward analysis of duty in negligence.  The duty of a property owner reasonably to maintain property in a safe condition does not extend generally to protect an injured from the "dangerous or unlawful acts" of third parties.

The plaintiff attempted to predicate liability on "special relationship" exceptions for foreseeable harms and for common-carrier defendants.  The court rejected both theories.  On foreseeability, courts have drawn exceptions in cases in which property owners knew of violent crimes on premises in the past.  But plaintiffs could not sustain the allegation here.  "Although the complaint cites a finding made by a Land Court judge in a related case that short-term rentals have 'significant external effects on the neighboring community and community at large,' it does not allege that short-term rentals are correlated with an increase in violent crime" (footnotes omitted).

Significantly for the short-term rental market, the court refused to analogize an Airbnb, Vrbo, etc., host to a common carrier or place of public accommodation, such as a transport provider, restaurant, or hotel, which would enhance the defendant's duty.  "This comparison missed the mark," the court wrote.

Aside from the fact that there is no allegation of any relationship between the defendant and the decedent other than the fact that the decedent was shot and killed on property owned by the defendant, perhaps the biggest difference between the relationship between a business establishment and its customers and the defendant's relationship to the decedent is that the defendant had no control over the premises during the rental period.

Styller's duty as a property owner stopped with the condition of the property at the time he turned over the keys.

In a related case decided the same day, the SJC ruled against Styller in a dispute in Land Court with the town of Lynnfield.

After the Heath murder, Lynnfield amended town law expressly to ban short-term property rentals, such as Airbnbs.  Lynnfield asserted that short-term rentals such as Styller's already violated the law.  But ordinances, such as a prohibition on operating a "lodging or rooming house," were ambiguous on the contemporary home rental question.

The SJC disagreed with the Land Court's ruling that the short-term rental of a whole home violated the law as to rooming houses, before amendment.  However, Styller wanted a ruling that his prior use was permissible, and the SJC would not go that far.  In the sum of various provisions, the court held, town law "clearly and unambiguously excluded, in pertinent part, purely transient uses of property in [a residential zoning district]."

Of interest from a procedural perspective, the court ruled on the zoning case despite alleged mootness arising from Styller's sale of the property.   "Unlike standing, 'mootness [is] a factor affecting [the court's] discretion, not its power,' to decide a case," the court explained.

[W]e view the viability of short-term rental use of property in the context of existing zoning regulations as one of public importance, in the sense that it raises "an important public question whose resolution will affect more persons than the parties to the case" and that "is primarily a matter of statutory [or, in this case, zoning bylaw] interpretation, not dependent on the facts of the particular case."

As well, Styller argued that the permissibility of the rental before the town amended the law remained a live issue in collateral matters of insurance coverage.

The wrongful death case is Heath-Latson v. Styller, No. SJC-12917 (June 7, 2021) (Justia).  The zoning case is Styller v. Zoning Board of Appeals, No. SJC-12901 (June 7, 2021) (Justia).  Chief Justice Kimberly S. Budd wrote both opinions for a unanimous court, excluding the two most recently appointed justices.