When To Call the Police and What To Do When They Arrive

Michael Brown. Eric Garner. Debra Harrell.

These are the three names that Yale Law fellow Emily Bazelon gives as examples for her police-averse policy in her Slate article, “Why I Don’t Call the Police.”

In the article, Bazelon explains that her experience as a journalist and studies of law enforcement statistics strongly indicate that, “… if the criminal justice system gets a hold of a black person, especially if he is poor, there is a terrible, heightened risk that it will try to crush him.”

Bazelon cites numerous instances, including the cases of the three people named above, in which police treatment of black individuals triggered intense national debate about the role that race plays in contemporary law enforcement.

Police Lights

Eric Garner was killed when Officer Daniel Pantaleo used a prohibited chokehold restraint to subdue him and failed to administer cardio-pulmonary resuscitation (CPR) until seven minutes after he stopped moving.  Pantaleo was sued twice for alleged arrest- and abuse-related violations in 2013.

Debra Harrell was arrested and charged with felony “unlawful conduct toward a child” after police responded to a call and found her 9-year-old daughter at a park while her mother worked at a nearby fast food restaurant.  The girl, who had a cell phone and house key, was six walking minutes away from home and was not in apparent danger.

Michael Brown was shot and killed after an encounter with police. Brown was not armed and bystanders indicate that he did not threaten or otherwise provoke the officer who shot him.  Although details remain scarce, the St. Louis suburb of Ferguson, Missouri is now filled with police officers carrying military-grade equipment, callously opportunistic looting, and tensions growing with each passing day.

These cases are exceptional, but still too common. Gene Demby writes that 4,813 people died between 2003 and 2009 during or soon after arrest attempts, with 60 percent of those deaths classified as homicides.  Bazelon acknowledges that the statistical likelihood of an arrest-related death is low, with 98 million arrests made during the same period, but calls the number “scary” in light of the ways that police departments appear to avoid publication of similar incidents.

Ultimately, Bazelon will “try to choose not to” involve police in the life of a black person if she can avoid it.  Many people share her sentiment, electing to attempt various forms of self-help before calling the authorities to respond to crime.

In some communities, people markedly avoid calling police, instead practicing “self-preservation” and often relying on local faith leadership to help them cope with harm they have suffered.  Columbus Police Commander Bob Meader acknowledges that people in inner-city neighborhoods, in particular, are typically more interdependent and “tolerate things in different ways” than people in suburban areas.  Meanwhile, ubiquitous media coverage and sensationalized commentary from all angles creates additional fear, confusion, and confrontation among observers, pushing more communities to look inward for help.

Whether institutional bias pervades police departments to the extent writers like Emily Bazelon suggest, or the wounds of violence in some communities are largely self-inflicted, the reality that many people cannot interact with police officers without panicking is a dangerous problem.

So, what should you do if the police stop you?  If you witness something dangerous, should you call the police?

  1. Your life is more important than your attitude, so don’t argue with an officer.

Whether the cop who stopped you is one of thousands of respectable officers of the law who will perform his duties admirably or one of the dangerous few who could make a lethal mistake, there is simply no reason to risk escalating a stop into a verbal confrontation (or worse).  It is imperative to remember that police officers constantly endure tremendous stress and forcing an officer to decide whether you could threaten his safety is a losing proposition.  When an officer stops you and wants to talk to you, speak to him as you hope he would speak to you if you wore the uniform: in a calm, respectful tone without cursing or shouting.

Magnifying Glass

  1. Comply with the officer’s orders and let him do his job.

Police officers responding to a possible crime have two primary goals: (1) restoring peaceful and safe conditions, and (2) investigating whether a crime has occurred and securing evidence to make an arrest, if necessary.  If a police officer witnessed an infraction, which is nearly always the case for traffic stops, then his decision whether to arrest you will not be positively influenced by a spirited debate.  Police officers are not prosecutors, judges, or your parents – trying to argue your case to them puts your safety and your legal rights at risk.  If you believe the officer is mistaken about whether you violated a law, you may politely explain yourself, but remember that whatever you say could be construed as a confession.  Attempting to combat an officer’s decision to arrest you by verbally or physically resisting will almost certainly result in graver legal consequences and could spiral into a violent altercation that you cannot win.

  1. Respond to basic questions, calmly refuse searches, and do not speak if you are placed under arrest.

Police are legally justified to engage anyone in consensual conversation, and can stop a person for a reasonable amount of time with articulable suspicion that the person is engaged in some criminal activity, including traffic violations.  Police may ask your name if the stop is justified, and it is generally advisable to comply rather than dispute the reasonable basis for the stop.  Police are also permitted to ask for your consent for a search, and may even suggest that they “already know” what you are hiding.  If an officer asks to search you, your vehicle, your home, or other property you control, you can always politely refuse.  Your refusal cannot be used against you, and if the officer proceeds without consent, whatever he finds might be excluded in court if you are later charged.  The most important thing to remember is that police misconduct can be corrected in court.  Unfortunately, however, the court cannot correct the pain or disability of injuries you suffer if a police officer, fearing for his safety, uses force to subdue you.

  1. If you witness a crime or think someone is in danger, call the police.

In perhaps the most famous misguided self-help case in recent history, George Zimmerman attempted to apprehend Trayvon Martin himself instead of waiting for police to arrive.  Zimmerman killed Martin, but was eventually acquitted of first-degree murder because the jury believed he acted in self-defense.  Regardless, Martin is dead and Zimmerman’s life is forever changed for the worse.  The lesson to be learned from Zimmerman is that your life and the lives of everyone else involved are imperiled if you don’t seek professional help for dangerous situations.  Just like you would call the fire department if you saw a burning house, you should call the police if you see someone breaking in through your neighbor’s window.  In the overwhelming majority of cases, police officers perform helpful and necessary work for the community and can turn dangerous situations into peaceful resolutions.

The Constitution can protect you from injustice, but not from loss of life.

The Fourth, Fifth, and Sixth Amendments provide the backbone of criminal procedure and guide police practices whether the officer and suspect know the rules or not.  If an officer arrests you without cause, forcefully interrogates you without proper advisement of your rights, or denies access to counsel, the judge assigned to your case will unravel the damage to the extent possible under the law.  Judges cannot unravel injuries or death resulting from violent confrontations with police, however, no matter how extreme the conduct.  Don’t put your safety or that of the people around you at risk by forcing an officer to react to your conduct.  Instead, let your lawyer and your constitutional rights do the talking.

Children Saved from Hot Car

It’s scary to think that anyone would leave their children locked in a car during the summer months. Recently, a Texas mother did just that. She went to get her hair cut at a salon and left her children in the car.

Shoppers at the center heard children crying and quickly found the two children locked in the car. What would you do?

Parking lot

After hearing the cries of the children, a few people passing by knew they had to do something. Thinking they had little time to spare, they busted the window of the car and soon had the children out in fresh air. The mother came out to see what the commotion was about and realized what was happening. She begged the crowd not to call police and no one had. Hopefully, this was a lesson learned for the Texas mother and she will not leave her kids in the car again.

This could have been a very tragic story. Things like this happen all too often around the country. We have heard numerous stories this summer, especially here in Arizona. Recently, Shanesha Taylor left her children in a car while she went in for a job interview in Scottsdale, Arizona. Luckily, it was not during our hottest summer months during which temperatures are known to reach over 110°. Ms. Taylor was charged with felony child abuse. Leaving a child in a locked car in the summer is a serious offense, even in cooler places like Flagstaff and Prescott. While temperatures may not reach the same scorching heat as in the Valley, even temperatures in the 80-90 degree range are immediately hazardous to children left in a vehicle. It is important to remember not to leave your children in the car even for a “quick” errand. Take the extra three minutes to unbuckle them and bring them in with you.

Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person against whom the order is sought. There are many relationships the parties could share or have shared in the past giving rise to a need for an order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

Confrontation

In order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a local municipal or justice court, or in the Superior Court in Kingman or Flagstaff.  The Court will consider the Petition for Order of Protection and can grant the initial Order based solely upon what the plaintiff says.

Once the Order is granted, it is served to the defendant (other party).  At that point, the defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear court and the judge will decide whether the order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. An Order of Protection prevent you from possessing a firearm and, if you already own one, forces you to relinquish it. The Court could also order the exclusive use of a common residence to the plaintiff.

Gated Patio

The order may also limit your ability to see or communicate with common children, and that could also have an effect on any other pending family court cases.  According to 17 Rules Protect. Ord. Proc., Rule 1, Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child.” Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis, but unless it can be proven that the child is in danger they are not likely to keep the child listed on the order if the Order is contested. This is a small consolation because in the end an Order of Protection could affect overall parenting time and legal decision-making even once lifted.

Those are just some of the many potential problems that could result from an Order of Protection being entered against you. Given the stakes involved, consulting with counsel prior to your protective order return hearing is always advisable.

What Happens to Children When Parents Split?

There is a growing trend in divorce cases to award equal parenting time to both parents. Several states including Arizona have joined this trend and modified their relevant statutes.  Parents in Flagstaff, Arizona have seen this trend through the change laws enacted in the beginning of 2013. Specifically, the language in the statutes changed from “custody” to “legal decision-making,” signifying a change in the collective attitude toward parents’ rights and responsibilities.

Dad with kids

From a historical standpoint, the trend in parenting time arrangements has dramatically changed over the years. In the beginning, women were free to leave men, but the children stayed with their father because the children were legally treated somewhat akin to property. The trend slowly moved toward a court system that favored mothers, relying on the belief that mothers provide a more nurturing environment, especially for younger children (also called the “tender years” doctrine).

All that may be history now. Although there are exceptions (which may include domestic violence, substance abuse, mental health issues, and other safety concerns), courts have recognized the need for both parents to have a loving and healthy relationship with their children.

This also means that Arizona now sets out to “maximize” each parent’s time with the children. To further illustrate the importance of this trend and policy, the Arizona legislature has addressed the issue in its statutes. Specifically, the best interest statute, ARS § 25-403(A)(6), states that the Courts must consider “which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent.”

Mother with child

If the court finds that a parent is constantly trying to play “keep away” with the children or frequently puts the other parent down in front of the children, it will likely have a negative impact on that parent’s time with the children. Judges are reluctant to tear children away from either parent and want each parent to foster a healthy relationship with their children

During a divorce or other legal decision-making proceeding, it is more likely than ever before that you will share parenting time. Refusal to participate in good faith and to attempt to maintain a functioning relationship with the other parent could result in losing access to your children altogether.

Do Grandparents Have Rights?

We have all had family fights — disagreed with our parents or rebelled when we were teens and thought we knew everything — but what happens when that fight leaves the family in pieces?

Family PicnicWhen adults have disagreements, they are often caught up in the heat of the moment. They say things they don’t mean and they do things they would not otherwise have done. Sometimes this means parents deny grandparents’ access to their grandchildren. Unfortunately, parents are not often thinking of the effects that this denial may have on their children. Grandparents are often very involved in the upbringing of their grandchildren. This begs the question: do grandparents have the right to fight for time with their grandchildren?

In Arizona, there are circumstances in which grandparents have standing to fight for legal decision-making rights and placement of, or visitation with, their grandchildren. However, it is difficult to meet the standards of the court.  According to the U.S. Supreme Court, parents have a fundamental right to raise their children as they see fit. What this translates to is that there are a number of legal hurdles that grandparents must overcome before they are granted any rights with respect to their grandchildren.

According to A.R.S. § 25-409(A), to gain legal decision-making rights and placement for a grandchild over the objection of the parents, the grandparents would have to meet a number of prerequisites. First, the grandparents have to prove that they have been treated as a parent by the child and have formed a meaningful relationship with the child for a substantial period of time.

Then, the grandparents must show that it would be significantly detrimental to have the child remain in the parent’s home. Those requirements are just a part of the bigger picture a grandparent must paint in order to gain legal decision-making rights and placement of their grandchildren. Arizona has adopted these same standards to protect parental rights.

Grandparents

States must balance the delicate interests of parents and grandparents at stake and try not to infringe on the parent-child relationship if it is not necessary. This is because courts are under the general assumption that a parent is fit, and a fit parent is able to make all necessary decisions for their children without intervention. Disproving fitness is often as onerous as proving that unicorns do not exist. Having an attorney experienced in these matters can be crucial for a grandparent fighting for legal decision-making rights and placement of grandchildren.

Alternatively, grandparents can file for visitation under A.R.S. § 25-409(C) (rather than trying to remove the child from the parent’s care). The hurdles grandparents must overcome for visitation are slightly lower compared to that of legal decision-making/placement rights; however, there is still a substantial amount of proof needed to prove it is in the child’s best interest to have visitation with the grandparents.

Let’s look at an example. If a Flagstaff grandmother wanted to petition for visitation rights with her grandson, she would have to file a petition with the Coconino County Superior Court.  She would first have to establish that either one of the parents was deceased, of that the child was born out-of-wedlock and the parents are not married, or that the parents are divorced.  After meeting this initial requirement, she then has to prove her relationship with the child and why it is in the child’s best interest to have her continued presence in his life. She would have to offer evidence of her historical relationship with him and establish his reliance on her presence, explain her motivation for the request for visitation, and how the requested visitation may impact the child’s customary activities, among other best interests’ factors.

If she can show that she has been a substantial part of the child’s life and the child would suffer if she were no longer able to see him, the court may decide that it would be in the child’s best interest to have continued visitation. Though this may not seem like a substantial burden in every scenario, proving the best interest of the child can be a tricky topic to maneuver around.  Courts are highly reluctant to interfere with parenthood, even if the result is to the detriment of grandparents and children who may enjoy their company. Again, having an attorney experienced in these matters can be crucial for a grandparent fighting for visitation with their grandchildren.

Although Arizona does provide some options for grandparents seeking time with their grandchildren who have been cut off from them, it does not and cannot afford the rights some grandparents wish to have. Sometimes the best option is to seek mediation or family counseling and try to reconcile the situation.  Sadly, however, mediation may not resolve the problem, leaving grandparents to decide whether a contentious legal battle is worth the further harm it may cause to their relationship with their children.

Whose Team are They On? CPS Child Removal and TDM Meetings

A CPS investigation is beyond frightening. What are your rights? Why does it seem like the investigator is interrogating me?  The investigator keeps saying that this is not a criminal matter, but do I need a lawyer?  Do I have to answer the questions the caseworker is asking?  What is this Team Decision Making meeting and who is on the team?
 
Frequently, CPS receives allegations of abuse either through the 1-888-SOS-CHILD hotline or they are contacted by police officers when there are children involved in a related or unrelated investigation. CPS, using their internal protocols, determine whether the information requires further scrutiny. If they determine further inquiry is warranted, an investigation is opened and the case is assigned to a caseworker or “specialist.” The caseworker then meets with the child, interviews the parents, and coordinates with the police to ultimately determine whether the child is safe in their current living situation or if a “removal” is necessary.  If they believe it is an emergency situation, DES/CPS will serve a Temporary Custody Notice on a parent and take the child for 72 hours while they continuetheir investigation.
Office
At the point of removal, CPS has 72 hours to either return the child, develop a “safety plan” approved by the parent, or file a Dependency action requesting the Superior Court place the child in CPS legal care pending further court hearings. During this 72 hour period CPS contacts the parent and invites them to participate in a “Team Decision Making” meeting (also known as a TDM) at the local CPS office. Often times the meeting consists of family members, friends, the case worker, service providers and sometimes the police.
 
What are my rights during the TDM?
 
Foremost, the name is a misnomer and tremendously misleading to parents who are being accused of abuse or neglect.  The implication is that everyone around the table is part of the “team” and the parents are there to assist in the decision making process. The facilitator of this “team meeting” is a CPS worker and often times CPS has already made a decision about bringing the matter to court before the process has even begun. In some cases, the paperwork has already been drafted and is ready to be filed with the court to begin the Dependency action. Designating this a “team” meeting when the parents are walking into this trap is like leading a pig to the slaughterhouse and calling it a vacation.
Mouse Trap
Parents should immediately seek legal advice from an attorney once a child has been removed and prior to any meetings with CPS. When parents are contacted about this TDM meeting they are often told they do “not need” an attorney present or they are “not allowed” to have an attorney present. However, these meetings could be very detrimental to the parents’ rights and the case about to begin in court because statements made during the TDM meeting can be used against the parents.  We have even seen cases where CPS invites the police (who are still gathering data in efforts to charge the parents with a crime) to attend the TDM meeting.  The police officers that attend the meeting will just sit there gathering information that can be used in related criminal prosecutions.
 
Having an attorneys’ advice before making any statement to CPS or the police is critical. An attorney can help protect the right of the parent to keep the child in their home and dispute the allegations made against them. 

Flagstaff Domestic Violence Call

An alarming call to a 911 operator alerted Flagstaff police to a possible domestic dispute. The call came in on a Saturday morning and the dispatcher heard crying and screaming on the line before the call was disconnected without further information. Although the dispatcher had no information to go on, they sent police to the Flagstaff home to investigate.

Upon arrival, a man came forward and told the officers his girlfriend had attacked him and was still in the house holding a knife. When the police went into the house, they found the woman with bruises all over her body, but she was not holding a knife. In fact, none of the allegations the man made were able to be confirmed. On the contrary, after further investigation, police found substantial evidence corroborating the girlfriend’s account of the facts.

911 signBased on the evidence available, police concluded that the boyfriend was the aggressor in the domestic dispute. The woman called police after her boyfriend started beating her but he quickly grabbed her phone and threw it into a wall, which was why the dispatcher was unable to get any information from the initial call. The boyfriend, Gregory Sean Harper, was booked into a detention center on various charges, including assault, disorderly conduct, and criminal damage among other things.

Domestic violence calls are often dreaded by law enforcement for good reason. Sometimes, by the time the police arrive, the dispute has ended and they must decipher what has happened based on interviews and scant evidence. Sometimes, they also face a victim who is unwilling to come forward against their attacker because they are afraid or because they do not want to see the partner they love arrested for the offense.

Flagstaff offers resources for domestic violence victims through the Arizona Coalition Against Domestic Violence through their hotline 1-800-782-6400.  The national domestic violence hotline can be reached at 1-800-799-SAFE (1-800-799-7233). There are also several resources available here, through the Coconino County Resource page.