Jesus in a Bag a Hot Item & FRIC Fracus

May 23, 2008, 11:30 a.m.

I've been working on a book the last few days -- with many more to go. It might actually be something you'd be interested in once I get it done. In any event, that's where my blog energies have been going recently. I'm saving them up for real "blog emergencies." Today isn't one, but I couldn't resist. -- Nick

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Founder of Major Early Religion Returns; Appears With Mother at Wal-Mart

Clerk Asks, "Paper, Plastic or Cloth?" Wonders Why Jesus Chose Plastic

Supercenter Opponents Charge "No Coincidence"

With all the people waiting for Jesus' return, who'd have guessed he'd show up in a Wal-Mart plastic bag with his Mom? Rachel Gallegos, "Man captures image of Wal-Mart bag resembling Virgin Mary," Iowa City Press-Citizen, May 23, 2008, p. A1 (John Wasendorf believes "on the right it is almost the head-to-toe image of the Virgin Mary. To the left, he sees the face of Jesus.").

This is more bizarre than George Burns' portrayal of God in the 1977 movie with John Denver, "Oh, God!"

Wouldn't Jesus use a returnable cloth bag? Just when you think you understand somebody they go and prove you wrong.

But the greatest mystery surrounds why he would choose Wal-Mart rather than, say, Target.

Wal-Mart, which faced a storm of local protest at its last attempt to establish its second "Super-Wal-Mart" in the area, has brought the idea back for a second time at bat. Chris Rhatigan, "Wal-Mart plans new supercenter; Store should be completed by early 2011," Iowa City Press-Citizen, May 21, 2008.

Gary Sanders, chairman of Iowa City Stop Wal-Mart, said he continues to oppose a new supercenter because of Wal-Mart's poor track record on labor and the environment.

However, he said even if a new supercenter is constructed, his group's efforts were not in vain.

"I think our organization should be very proud that we kept Wal-Mart from building a supercenter on public land that included a floodplain," he said, referring to the company's previous plans.

Sanders added that if Wal-Mart is seeking any zoning special exceptions for the new store, as they did the first time, "citizen action" would be necessary.

"If they need zoning or any special exceptions, we'll be there," he said.

Now I haven't talked to Gary about this, but is it really just a coincidence that if the Iowa City City Council -- a public body that seldom if ever saw a corporate subsidy it didn't like -- did not have the power to bring off Wal-Mart's deal that the company would have thought up a publicity stunt like this as a way of appealing to a higher power?

Wal-Mart using Jesus?! The only phrase that comes to mind is what the Army's lawyer, Joseph Welch -- whose autographed photo hangs proudly on my law school office wall -- said to Senator Joseph McCarthy, following one of McCarthy's attacks during the Army-McCarthy hearings on June 9, 1954, while I watched the live televised hearings, "Have you no sense of decency?"

Really? A coincidence? I think not.


Current Controversies in the Academy

The latest dust-up on the Iowa City campus -- not unlike the rest of the nation (though with a much better health insurance coverage) -- involves revisions in the health plan created by something called FRIC.

These are issues everyone can get their teeth into -- if they have dental care coverage.

And the whole fracas just provides one more illustration of the Management 101 principle that when you want to change policies -- especially those that will be perceived as affecting employees' benefits -- there's no substitute for keeping everyone affected in the loop, informed, step by step.

Brian Morelli's headline and sub-head tell the story (although his full report tells it better). Brian Morelli, "UI waiting for benefit details; Opposition petition has 1,100 names," Iowa City Press-Citizen, May 22, 2008.

Duncan Stewart thinks the "Process Was Secretive, Divisive," Iowa City Press-Citizen, May 21, 2008.

The Press-Citizen editorializes, Editorial, "UI Needs to Put All Its Cards on the Table," Iowa City Press-Citizen, May 23, 2008.

University of Iowa law professor Sheldon F. Kurtz, co-chairman of the UI Funded Retirement and Insurance Committee (or "FRIC"), thinks that the "Benefit Proposal is Sound," Iowa City Press-Citizen, May 23, 2008.

I am simply reminded of George Carlin's observation: "Some say the glass is half full. Others say the glass is half empty. I say the glass is too big." (Just kidding.)

But wait, there's more . . .

Since last fall the Press-Citizen has been trying to get access to the public records that might reveal at least something about how University administrators handled the aftermath of whatever the hell happened in a student dorm the night of October 14, 2008.

Apparently frustrated as the paper has watched October turn to November, December, January, February, March, April, May -- and now, soon, June -- the Press-Citizen's Lee Hermiston reports the paper has apparently abandoned the hope of ever getting any actual information and has now retreated to simply asking for an index of what the University is never going to give them -- which apparently they aren't getting either:

In the motion filed in Johnson County District Court, the Press-Citizen is arguing UI should be required to produce the index of withheld documents or disclose redacted versions of the documents.

According to the motion and case law, UI's "blanket claim" of withholding all of the documents creates problems for the Press-Citizen and the courts. The motion states that without knowing what UI is keeping, the Press-Citizen is unable to determine whether the confidentiality of the documents is appropriate.

"What happened at Hillcrest Hall seven months ago and what public officials have done since is a public issue," said Press-Citizen managing editor Jim Lewers. "We Iowans -- the people who own and fund the University of Iowa -- deserve to know about student safety, the athletic department and accountability and openness. It's absurd that we can't even find out how many pages of documents the university is denying us access to."

Lee Hermiston, "P-C files motion in lawsuit against UI," Iowa City Press-Citizen, May 22, 2008.

A World Unto Itself

May 16, 2008, 8:15 a.m.

My Space, but Her Death
Many of the blog entries here involve some use of the tools of legal analysis, issues, and public policy. But it's not a "law professor blog," limited to the subject matter of the courses I teach exploring mass media and Internet law. Moreover, the blog carries a notice that none of the entries constitute "legal advice" or a "legal opinion."

But a story in this morning's Los Angeles Times requires some comment. Scott Glover and P.J. Huffstutter, "L.A. files 'cyber bully' charges against Missouri mother in connection with girl's suicide; Lori Drew is accused of creating a fraudulent MySpace persona whose comments may be linked to the teen's death," Los Angeles Times, May 16, 2008.

The story is the latest development in tragic events you may well recall from prior news coverage.

The pre-teen and teenage years can involve some real emotional roller coaster rides in personal relationships, as any parent of teens probably knows. Two teenagers can go from bff ("best friends forever") to bitter enemies in short order. And so, apparently, it was with Megan Meier and a girl friend who was the daughter of Lori Drew.

Drew (the mother), for reasons unknown, created an account under a false name ("Josh") with MySpace (an "online community" favored by young teens), and began communicating with young Meier. Drew's fictitious Josh established an online relationship with Meier, apparently flirting and ultimately moving on to sexual overtones. Once established, Drew's character then unceremoniously dropped Meier cold, following which she committed suicide.

Drew is now being prosecuted by the U.S. Attorney in Los Angeles. He, "U.S. Atty. Thomas P. O'Brien said he believed it was the first case of its kind in the nation [and that] Josh told the girl 'the world would be a better place without her'" -- believed to be the final factor in her suicide.

At the outset, let us concede that Drew's (the mother's) actions (via her "Josh") were despicable. I cannot imagine any explanation that would cause one to come to a contrary conclusion.

But the legal questions involve which categories of either civil or criminal law into which this "first case of its kind in the nation" neatly fits.

Given that the people involved (Drew and Meier) were in the St. Louis metropolitan area there is a threshold question as to why a U.S. Attorney and courts in Los Angeles are involved in this matter at all.

But the Internet, or "cyberspace" as we call it, has required a rewriting of the entire law school curriculum -- not the least of which is the matter of a court's "jurisdiction."

Cyberspace is both nowhere and everywhere at once. As the AP reports, "Salvador Hernandez, assistant agent in charge of the Los Angeles FBI office, [said], 'The Internet is a world unto itself.'" AP, "Woman Indicted in MySpace Suicide Case," The Gazette, May 16, 2008, p. A3.

You see, "Josh" lived inside a virtual world called MySpace that hundreds of millions of individuals around the world with Internet access could share with him. (Two years ago MySpace alone had over 100 million accounts.) Josh was in Singapore as much as he was in St. Louis, in London as much as Los Angeles, in Iowa City as much as Istanbul.

From this perspective Drew could be sued anywhere. But as it happens MySpace is a business with a corporate headquarters, and what we call a "brick-and-mortar" (as distinguished from an online or virtual) office building -- located in Los Angeles.

Putting that aside, let's also put aside the matter of civil liability -- which does not seem to be in question here (though it might be later). There is something called "intentional infliction of emotional distress" that could be explored; which would require addressing whether that cause of action continues beyond Meier's death, enabling the parents to bring such an action on her behalf, or that of her estate -- or themselves (separate and apart from the emotional distress suffered by their daughter -- although their emotional distress comes, not from the messages themselves but from her death, thereby raising other issues).

There is the question of "cause." Presumably, in order for Meier's parents to win a "wrongful death" action, for example, as in the O.J. Simpson case, they would need to prove that Drew's actions were sufficient to have caused her death. Since Drew's only actions involved words (rather than a physical assault) and the death was self-inflicted, it's not clear that they could bear that burden of proof. Normally the media are not responsible for the reasonably predictable "copy-cat" results of their content. (Examples: a boy who hung himself after watching a stunt man on the Johnny Carson show explain how they staged hangings; a woman who was sexually assaulted following the depiction of a similar assault in an NBC drama -- by attackers who had seen the show; a Florida man attempting to defend himself from murder charges by asserting that, in effect, "the TV made me do it.")

Incitement is a different matter. To stand on the courthouse steps addressing a mob, and say, "Let's all go home right now, get our guns and some explosives, and go kill that [expletive deleted] abortion doctor" is one thing. But what if, with no threats or actual violence, an abortion doctor -- pummeled with anti-abortion commentary by folks in the local community and local press -- commits suicide. Does it follow that those who were critical of him are responsible for his -- self-imposed -- death?

But U.S. attorneys deal in criminal law, and that's what's involved here. So what's the crime, and is Meier's death relevant to that crime?

The L.A. Times' headline reads, "L.A. files 'cyber bully' charges against Missouri mother in connection with girl's suicide." The sub-head is, "Lori Drew is accused of creating a fraudulent MySpace persona whose comments may be linked to the teen's death." And the lead begins the story, "Invoking a criminal statute more commonly used to go after computer hackers or crooked government employees, federal prosecutors in Los Angeles on Thursday charged a Missouri mother with fraudulently creating a MySpace account and using it to 'cyber-bully' a 13-year-old girl who later committed suicide."

Note that, although there is repeated reference to the suicide none of these possible theories and statutes involves a charge of "murder."

As a fellow law professor is quoted by the L.A. Times:

Rebecca Lonergan, a law professor at USC and former federal prosecutor in Los Angeles, said applying the statute in this case is a stretch.

After reading the indictment, she said there was some ambiguity as to whether MySpace or Megan was the victim. The case hinges, she said, on getting the circumstances surrounding Megan's tragic death before a jury if the prosecution "has any hope of winning."

"This is an extremely aggressive prosecution," she said. "L.A. is doing a laudable thing in trying to find a charge. But I'm not sure the courts are going to let this stand."

I agree.

It may be that what we're dealing with here is similar to prosecuting a serial-killer-member of organized crime for income tax filing offenses -- because you want to prosecute him for something and that's the only offense you can prove.

An indictment is never the end of any prosecution, and especially is that so in this case. There will be much more to come, for certain -- for the providers of online services like MySpace, those who use those services in a mean-spirited and dangerous way, state and federal prosecutors, Congress and state legislatures -- and, oh yes, cyberspace law professors and their students, as well as this blog.

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Bike for Life

May 13, 2008,9:05 a.m.

Bike for Life
Bike to Work Week
Thirty-six years ago I published a book titled, Test Pattern for Living. (Although long since out of print, it is still available for free downloading, and has maintained its own devoted cult following over the years.)

Bicycling has remained a major part of my life ever since, as a young boy, I started using a bike to deliver the Des Moines Register to my neighbors (a bike the Register enabled me to buy at a discount with my paper route money). Later, in the 1970s, I rode across the state in the RAGBRAI event with Donald Kaul for a number of years, reporting on it for National Public Radio. Today my bicycle is mostly used for commuting and some local trails for exercise and recreation.

So it was natural that any book called Test Pattern for Living would have a chapter on bicycling. And, this being "Bike to Work Week" and all, it seemed appropriate to dust it off and run it in the blog this week.

As life has a way of coming full circle, next month we will be celebrating the publication of my son Gregory Johnson's book, Put Your Life on a Diet -- already in its second printing. Although it is compatible in theme, and also has a chapter on transportation advocating bicycles, it is otherwise unique, very much up-to-date, and grows out of his leadership with the "small house" movement -- as suggested by the book's sub-title: "Lessons Learned Living in 140 Square Feet."

I've made no effort to update the chapter from my book, reproduced below. The late 1960s and early 1970s were a different time from today. So you'll need to update the statistics if you want to use them. And the sentiments are very much 1970s' -- though the conclusions, social and ecological conditions haven't changed all that much. It was a time of political and economic change, and one of my goals was to see if I could help contribute to a year in America in which there would be more bicycles sold than automobiles. (We did it, as you'll see from a quote in what follows.) In the 1970s there was also a good deal of artistic (as well as other) experimentation. It was represented in this book with the fact that the Foreword was sheet music (by Mason Williams) and the chapters consisted of quotes on the even numbered (left hand) pages, and my text on the odd numbered (right hand) pages. As I described that feature in the Introduction,

[A]ny honest author will admit he has drawn heavily from the writings of others. I have emphasized this fact by the use of quotations from diverse sources . . . [One] reason I have emphasized the quotes is that my search involves the discovery of common themes . . .. When different people start saying the same thing -- when a blue-collar worker expresses frustrations similar to those of college students, when the teachings of Buddha are consistent with the insights of psychiatrists, or when ecologists echo the sentiments of poets -- I feel excitement. If you want, you can just read the quotes, and skip my text entirely -- or read it later.

In today's reproduction of the chapter the quotes are indented and blocked and my text goes to the margin. Page numbers are indicated as, e.g., # p. 110 #.

Antidote to Automobiles [Chapter 7]
# p. 110 #

We might have to slow down a little or perhaps even sit quiet occasionally to develop better taste. One can't think very deeply at 70 miles an hour.
-C. E. Warne


My new pattern requires renting new cars at the airports as needed. I am progressively ceasing to own things, not on a political-schism basis, as for instance Henry George's ideology, but simply on a practical basis. Possession is becoming progressively burdensome and wasteful and therefore obsolete.
-R. Buckminster Fuller


When you drive a car, you drive a reflection of your self. And, in the case of the 1971 MGB, it's a reflection of someone very special.
-MG advertisement in Time

# p. 111 #

So far, we have approached alternate life styles almost in terms of hedonism: What feels best for you? What will remove the pain of living in a corporate state -- other than the drug life (whether alcohol, tranquilizers, or others) that only brings more ultimate pain? But what we so often discover is that the very products, activities, and attitudes that make you feel better also have significant social advantages: They use less of our nation's precious natural resources, they pollute less, they make less noise, they add to the pleasure of others, they enable each of us to live in a society in which we can grow in individual worth and fulfillment, they are more aesthetically pleasing, they make for better citizenship, and they are even more economical. Take bicycles, for example.

I ride a bicycle -- not because I hate General Motors but haven't the courage to bomb an auto plant. I don't do it as a gesture of great stoicism and personal sacrifice. I am not even engaged, necessarily, in an act of political protest over that company's responsibility for most of the air pollution by tonnage in the United States. It's like finally giving up cigarettes. You just wake up one morning and realize you don't want to start the day with another automobile. Cigarette smoking is not a pleasure, it's a business. In the same way, you finally come to realize that you don't need General Motors, they need you. They need you to drive their cars for them. You are driving for Detroit and paying them to do it. Automobiles are just a part of your life that's over, that's all. No hard feelings. You've just moved on to something else. From now on you just use their buses, taxis, and rental cars when they suit your

# p. 112 #

The most natural form of locomotion, walking has been In use since before the Invention of the wheel and the discovery of fire. Reliable and totally non-polluting, it offers convenience -- no parking, no cost. Invigorating, it promotes health and gives you the chance to think.
-Paul Swatek


Automobiles insulate man not only from the environment but from human contact as well. They permit only most limited types of interaction, usually competitive, aggressive, and destructive. If people are to be brought together again, given a chance to get acquainted with each other and involved in nature, some fundamental solutions must be found to the problems posed by the automobile.
-Edward T. Hall

ANNOUNCER: Sidney spent Sundays shelling at the seashore. Then Sidney started digging the Mustang -- the great original . . .. Now Sidney's making waves all over. Last week he saved three bathing beauties. (And they all could swim better than Sidney!) Only Mustang makes it happen!
-a television commercial

# p. 113 #

convenience. You don't keep one for them that you have to house, feed and water, insure, and care for.

You ride a bicycle because it feels good. The air feels good on your body; even the rain feels good. The blood starts moving around your body, and pretty soon it gets to your head, and, glory be, your head feels good. You start noticing things. You look until you really see. You hear things, and smell smells, you never knew were there. You start whistling nice little original tunes to suit the moment. Words start getting caught in the web of poetry in your mind. And there's a nice feeling, too, in knowing you're doing a fundamental life thing for yourself: transportation. You got a little bit of your life back! And the thing you use is simple, functional, and relatively cheap. You want one that fits you and rides smoothly, but with proper care and a few parts it should last almost forever. Your satisfaction comes from within you, not from the envy or jealousy of others. (Although you are entitled to feel a little smug during rush hours, knowing you are also making better time than most of the people in cars.)

On those occasions when I am not able to cycle through the parks or along the canal -- because the paths are rough with ice or muddy from rain or melting snow -- bicycling enables me to keep closer to the street people: folks waiting for buses or to cross streets, street sweepers, policemen, school "patrols," men unloading trucks. Needless to say, you cannot claim any depth of understanding as a result of such momentary and chance encounters, but by the time I get to the office I do somehow have the sense that I have a much better feeling for the mood of the city that day than if I had come to my office in a chauffeur-driven government limou-

# p. 114 #

On a different speed scale, bicycles could move 2.8 times as many people per amount of space. If a bicycler can make 10 miles an hour, the car would have to exceed 28 mph to rack up more passenger miles on the same system of streets. But the New York City average speed for cars during rush hour is only 8.5 mph, 13 mph on the feeder roads. It's a fact that today in many cities you can make better time aboard a bicycle than in a car.
-Paul Swatek


Make your second car a bicycle.

Consider the advantages that the bicycle has to offer -- low cost, no pollution, and convenient to park.

For under $50 you can get a bicycle fitted with enough trimmings to make it practical for going shopping and carrying a small child. The cheapest car costs about thirty times that.

A bicycle is also inexpensive to operate, maintain, and insure.

Bicycles are quieter than any form of motorized transportation, produce no pollution, and use up no fuel.

A bicycle takes up about 1/30th the parking space of a car.

In city traffic today, the bicycle is often faster than the car or bus.

Bicycles give the rider the sort of healthy exercise that many Americans usually do not get.

Riding a bicycle makes it possible to get a better appreciation of a beautiful day, or a pleasant ride through the park.

. . . The New York Times quoted a 32-year-old millionaire who pedals up Fifth Avenue to social engagements in a dinner jacket as explaining, "It's much easier than fussing with a chauffeur."
-Paul Swatek

# p. 115 #

sine. Although I am willing to brave the traffic and exhaust, I am aware it is dangerous. I think bicycles ought to be accorded a preferred position in the city's transportation system. At the very least, they deserve an even break.

Notice that bicycle riding also has some significant social advantages over the automobile. Cars unnecessarily kill sixty thousand people every year, permanently maim another one hundred and seventy thousand, and injure three and a half million more. The automobile accounts for at least 60 percent of the total air pollution in the United States by tonnage -- as high as 85 percent in some urban areas -- and 91 percent of all carbon-monoxide pollution; it creates about nine hundred pounds of pollution for every person every year. One million acres of land are paved each year; there is now a mile of road for each square mile of land. The concrete used in our Interstate Highway System would build six sidewalks to the moon. Even so, everyone is familiar with the clogged streets and parking problems -- not to mention the unconscionable rates charged by the parking garages. Automobile transportation is the largest single consumer of the resources used in our nation's total annual output of energy. It is an economic drain on consumers -- in no way aided by auto companies that deliberately build bumpers weaker than they were fifty years ago in order to contribute to an unnecessary bumper-repair bill in excess of one billion dollars annually.

The bicycle is a model citizen, by comparison.

The bicycle does not kill or maim; it does not pollute; it does not deplete natural resources; it makes no noise; it takes a great deal less space; and it is very much cheaper. (You can buy a brand new bicycle for

# p. 116 #

Commuting by bicycle? Is this some kind of put-on? It may sound like a joke to motor-minded America, but in the rest of the world nobody is laughing. In countries that are willing to take it seriously, the bicycle [is] transportation. Switzerland, for example, which traditionally places a high value on peace of mind and purity of air, has more bicycles than automobiles. In Amsterdam -- a national capital with roughly the same population and climatic conditions as Washington, D.C. -- 150,000 people ride bikes to work every day. Hundreds of thousands more commute by bicycle in other European cities. The same is true in much of Africa and Asia.
-Thomas R. Reid, III


This year an estimated 10 million bicycles will be sold, compared to a projected 8.6 million new cars.
-Friends of the Earth

# p. 117 #

little more than what it costs to operate an automobile for two weeks.) Although the bicycle makes a direct assault on four great problems that plague the modern city -- traffic, noise, parking, and pollution -- urban planners have overlooked it in their search for solutions to the urban transportation crisis.

It is more than ironic that America can invest so much stock faith and rhetoric in the competitive marketplace of commerce and yet ignore the "marketplace of ideas" (to use a phrase by Mr. Justice Holmes) by tolerating the television monopoly that is used to merchandise Detroit's peculiar dreams of the appropriate automotive life style -- with all that life style's attendant social ills. My own commission, the Federal Communications Commission, has been instrumental in encouraging broadcasters' censoring off the airwaves the messages from ecology groups (like Friends of the Earth) that would cry out against the urban devastation being wrought by Detroit's automobiles. (The FCC decision, fortunately, has been substantially reversed by the U.S. Court of Appeals.) In perhaps one of the greatest advertising overkills of all time, we Americans are being grossly oversold an automotive product and life style (bigger, faster, sexier cars) that we neither need nor may really want, and that will surely eventually kill us with its exhaust by-products and lethargy-induced heart attacks, if it does not get us first in a crash. This may serve the corporate profits of the automotive, oil, steel, cement, and road-building industries, but it is shortchanging the American people.

There are other ways to get around.

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You, too, can have a happy Bike to Work Week -- 52 weeks every year! Try it.

Send in . . . the Musicians

May 11, 2008, 7:30 a.m.

Best Mother's Day Gift? World Peace
So, Don't "Send in the Marines," Send in the Musicians

At the risk of sounding like a candidate for Miss America with my appeal for "world peace" here are some thoughts during and following a CNN presentation last evening (Saturday, May 10, 7:00 p.m. CT). The program is scheduled to run again this evening (May 11) at both 7:00 and 10:00 p.m. CT.

[Photo credit: BBC.] It was a follow-up by Christiane Amanpour -- a reporter for whom I have enormous admiration -- on the dramatic story of the New York Philharmonic's performance in North Korea earlier this year. CNN Special Investigations Unit, Amanpour Reports Notes from North Korea. And see, Christiane Amanpour, "Behind the Scenes: Amanpour's Notes from North Korea," cnn.com/asia, May 8, 2008, with links to photos and videos. Here is a video of the concert.

I've come to have a lot of respect for the best and the brightest in our U.S. military -- largely for the informed, rational and analytical approach they bring to issues of war and peace. It is the civilians in the White House and Congress who want to "send in the Marines," "kick some butt," or "nuke 'em" at the slightest provocation who most concern me. Notwithstanding our constitutional tradition of "civilian control of the military," the contrast between those approaches is what's given rise to my mostly joking suggestion that what we need is "military control of the civilians."

I wrote at length echoing their cool caution prior to our latest foray of folly into the Middle East. (See, list of my articles and speech texts at "Terrorism and the War in Iraq.") The military knows better than most of us that "the military option" is simply not appropriate for many of the international missions our country needs to undertake. (It is in some instances, as I once described for an earlier president, "like trying to play basketball on a football field.") It can even be self-defeating -- as in Iraq, where our presence has ended up encouraging the recruitment of terrorists and increasing the number, reach and force of their tactics -- thereby further destabilizing the Middle East, harming our national security and making us less safe rather than more.

No less a military expert than General David Petraeus said over a year ago, "There is no military solution to a problem like that in Iraq . . .." "No Military Solution to Iraq, U.S. General Says," cnn.com, March 9, 2007. [Photo credit: CNN.]

Senator Barack Obama shares this perspective and insight:

“I think we all have to recognize that we’re not going to achieve a military solution in Iraq, . . .. We have got to redouble our diplomatic efforts, internally as well as externally. . . . It is my judgment—and I think it’s the judgment of most military and political experts—that the best we can hope for, at this point, is to make sure that we are seeing some sort of accommodation [among] the various factions. The only leverage we have to encourage those factions to start coming to the [negotiating] table is if we say we are not going to be there in an open-ended military commitment.”

Joe Conason, "Bush Fantasy, Obama Reality," The New York Observer, March 25, 2007 (quoting from a Larry King Live interview).

Meanwhile, Senator Clinton, presumably in her effort to demonstrate that she has "passed the commander in chief test" -- although possibly just in an effort to put the lie to Elayne Boosler's assertion that, "When women are depressed they either eat or go shopping. Men invade another country." -- expresses a different view:

Mrs. Clinton . . . in an interview on ABC last week [said], “I want the Iranians to know that if I’m the president, we will attack Iran,” . . . when she was asked what she would do if Iran attacked Israel with nuclear weapons. “In the next 10 years, during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them,” she added.

Nazila Fathi, "Iran Protests to U.N. About Clinton Comments," New York Times, May 1, 2008.

Ms. Amanpour's shared insights about North Korea involve far more than one evening's concert -- indeed, among other things, she was invited to see a nuclear facility. It's a country about which we all need to know a great deal more than we do -- as we recently discovered about a number of countries in the Middle East. One hour of television -- even an hour with Christiane Amanpour -- won't tell us all we need to know. One concert won't bring "peace in our time," an open society in North Korea, or feed millions of North Koreans. But it's a start, a useful start.

North Korea and Iraq were both on President Bush's list of countries in "the axis of evil" (a characterization, incidentally, we should not be surprised to discover was not well received by the North Korean people). For one we said, "send in the Marines!" (over the protest of the Marines). For the other we said, "send in the musicians."

Which do you think has worked best?

Senator Hillary Clinton aside, it does seem that Elayne Boosler is closer to the truth. Women have tended to be in the forefront of peace efforts around the world and over the years. I don't know why. It may be because of something related to what I call "the natural superiority of women." It may be that if men had to go through childbirth to bring those young soldiers into the world they, too, would value their lives more highly.

In any event, there it is. Hats off to Christiane Amanpour, Elayne Boosler, and their three billion female colleagues around the world.

Thank you all, and

Happy Mother's Day!

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Police Accidental Shootings -- Of Themselves

May 9, 2008, 7:55 a.m.

And see, Jennifer Jacobs, "Chief shows how to load bullets, shoots an officer," Des Moines Register, July 10, 2009.

Additional Risks from Armed
(Campus and Other) Police:
Accidental Self-Inflicted Wounds

When I was just a baby,
My Mama told me, "Son,
Always be a good boy,
Don't ever play with guns . . .."
Johnny Cash, "Folsom Prison Blues"

Until recently the University of Iowa had for 40 years successfully maintained a policy of not having the campus police routinely walking around with loaded guns. They had access to weapons in the event of emergencies -- as well as access to the armed Iowa City police, Iowa Highway Patrol and Iowa's national guard. But they did not always have guns at the ready.

Now they do.

There was, of course, a lively debate about this change. Opponents pointed out that there was little benefit and considerable cost to doing so -- insofar as few if any of the random and unpredictable campus shootings at American universities have been (or would have been) prevented as a result of armed campus police. (And of course guns have even less relevance to the much more common risks to college students, from physical assaults, to drunkenness, to tornadoes or chemical spills.)

It was pointed out that those who keep handguns in their homes are 16 times more likely to have those guns used on family and friends than on criminal intruders (e.g., as a result of suicides, accidents, mis-identification, or the gun being stolen and used by the intruder). Accidental shootings of unarmed, innocent civilians by police officers sometimes occur -- including in Iowa City. It was noted that police are sometimes shot with their own guns as a result of losing them to an attacker in a scuffle.

What was not discussed was the danger to the police themselves from . . . themselves.

We were reassured that our police would be well trained. And I assume they are.

But it turns out that isn't always enough. Indeed, some of the accidental, self-inflicted wounds (and death) occur during that very training.

The following stories were brought to my attention this morning.

I would apologize for the length of this blog entry if I knew how to cut them -- and if the sheer number of incidents was not, itself, a major point of this blog entry.

_______________

Students claim police chief who shot himself was careless http://wtopnews.com/?nid=456&sid=1399176 May 6, 2008 - 8:06pm

RIVERDALE, Utah (AP) - The police chief who shot himself in the ankle was waving a loaded pistol and being careless, according to two students who were attending his class to qualify for a concealed- weapons permit. "We were told the gun is the chief's personal sidearm, but it looked to me like he didn't know anything about the gun," Lewis Walker said.

Bart Ulm, another student seeking certification to carry a concealed weapon, said he was surprised Chief Dave Hansen was using a loaded gun to show how it worked.

"Right then, I was very leery, because there's no need to have live ammo in a gun in the class. But I figured he's the chief, so he must know what he's doing," Ulm told the Standard-Examiner of Ogden.

Hansen held the Glock 40 under a table to disassemble it when a bullet fired, Walker said.

The chief cried, "I'm hit," and fell over. Students who were screaming "Officer down!" were urged to call 911.

The gun went off in a conference room Saturday at Riverdale police headquarters.

Hansen was taken to McKay-Dee Hospital in Ogden for surgery and released Monday, Lt. James Ebert said.

Ebert said the findings of an internal investigation would be announced Wednesday. He declined to offer specifics but disputed the accounts of Ulm and Walker, describing the pair as "disgruntled."

Other students "did not share that feeling" about the chief, Ebert told The Associated Press.

Walker said he didn't have confidence in the investigation.

"I think Riverdale police are just trying to keep this quiet and act like the chief is a hero. But if you ask me, he's really stupid," Walker said. "His state certification to teach concealed-weapons classes should be taken away from him. This was totally gross negligence."

Ulm said there was a moment of levity during the emergency.

He said an officer at the scene joked that "instead of shooting himself, he should have used the Taser."

Video of DEA agent shooting himself http://video.google.com/videoplay?docid=1183904817279114761

Safety First http://www.snopes.com/photos/accident/gunsafety.asp

Claim: Video captures a DEA agent who accidentally shot himself while conducting a presentation on gun safety.

Status: True.

Origins: "Do as I say, not as I do" is an aphorism we usually associate with those who give others instructions or advice or guidelines that they themselves don't follow. That phrase springs to mind as an apt description of an incident involving DEA a U.S. Drug Enforcement Agency (DEA) agent who accidentally shot himself while presenting a lecture on gun safety.

On 9 April 2004, a DEA agent (who has not been identified by name in press accounts) delivered a presentation on gun safety to about 50 adults and students at an event sponsored by the Orlando Minority Youth Golf Association. Partway through his lecture, the agent picked up his .40-caliber duty weapon and held it up for the audience to see as he announced: "This is a Glock 40. Fifty Cent, Too Short, all of them talk about a Glock 40, OK? I'm the only one in this room professional enough that I know of to carry this Glock 40." Seconds later the gun discharged, wounding the agent in the thigh (or the foot, or the leg, according to various press accounts).

After the agent inquired to make sure no one else present had been hurt, he gamely limped around the front of the room, turning the mishap into an object lesson for his audience: "See how that accident happened, that could happen to you and you could be blown away." (A bit of humor occurred a few minutes later when the agent called for his assistant to hand him another gun, and a voice from the audience called out: "Put it down! Put it down!")

Fortunately, the agent did not sustain serious injury (it isn't clear from the news accounts and video whether he was actually hit by a bullet or suffered a powder burn to his thigh from the close-range discharge), and he returned to work after being treated at Orlando Regional Medical Center.

According to a news report of the time: A federal drug agent shot himself in the leg during a gun safety presentation to children and his bosses are investigating.

The Drug Enforcement Administration agent, whose name was not released, was giving a gun safety presentation to about 50 adults and students organized by the Orlando Minority Youth Golf Association, witnesses and police said.

He drew his .40-caliber duty weapon and removed the magazine, according to the police report. Then he pulled back the slide and asked someone in the audience to look inside the gun and confirm it wasn't loaded, the report said.

Witnesses said the gun was pointed at the floor and when he released the slide, one shot fired into the top of his left thigh.

"The kids screamed and started to cry," said Vivian Farmer, who attended the presentation with her 13-year-old nephew.

"Everyone was pretty shaken up," Farmer said. "But the point of gun safety hit home. Unfortunately, the agent had to get shot. But after seeing that, my nephew doesn't want to have anything to do with guns."

The agent was treated at Orlando Regional Medical Center after the April 9 shooting and returned to work, DEA special agent Joe Kilmer said.

Police ruled the shooting was an accident, but the DEA headquarters in Washington was still investigating, Kilmer said. Nearly a year later, in March 2005, a home video of the incident was leaked to the Internet and made available on several web sites, such as this one. (The video contradicts some of the information provided in the above-quoted news account: the magazine was clearly still in the gun when the agent held it up to the class, and the footage does not substantiate the claim that after the shooting "the kids [in the room] screamed and started to cry.")

According to one press account, the distribution of the video prompted the DEA to suspend the agent involved and begin an investigation into the source of the tape: An agent with the U.S. Drug Enforcement Agency has been suspended after video surfaced showing the man shooting himself during a gun safety class in front of a group of Orlando fourth-graders.

An investigation has been launched to determine who leaked the home video of the undercover DEA agent shooting himself at an event sponsored by the Orlando Minority Youth Golf Association.

Experts in the field said that the undercover agent should never have been videotaped because it could put the agent's life at risk.

"It puts a lot of undercover agents in jeopardy if their faces are videotaped," a masked agent told Local 6 News. "His identity is burned. His identity is known as a police officer and its a potential personal safety hazard to himself as well as his family members."

DEA agent who shot self in foot sues over Internet video http://www.thesmokinggun.com/archive/0411061foot1.html

Only highly trained federal agents know how to handle firearms safely, right? And the rest of us should be gently disarmed?

In a remarkable video that's made the rounds on the Internet, Drug Enforcement Administration agent Lee Paige solemnly informed his audience at the Orlando Youth Minority Golf Association that he was the only one in the room knowledgeable enough to handle a firearm safely.

A moment later, he shot himself in the foot.

Limping and hobbling around the room, and presumably leaving a bloody trail along the way, Paige tried to put the best face on this publicly embarrassing incident. He even attempted to continue with the prepared spiel, pointing to what looks like an AR-15 style rifle and assuring everyone it was honestly, truly unloaded -- until the snickers from the crowd got a little too intense and he fled the room as quickly as his new wound would allow.

(One wonders if the crowd shouldn't have fled instead when Paige went for the battle rifle, given his demonstrated inability to safely handle a Glock handgun a moment earlier. "It's an empty weapon, guys," he shouted, trying to make himself heard over the hoots and jeers.)

Anyway, the shooting-himself-in-the-foot incident was recorded on video, it ended up in the hands of the DEA, and somehow it ended up on the Internet and TV. It's archived on the TheSmokingGun.com.

So Paige did what any highly-trained-in-handgun-safety special agent would do when held up to public ridicule: He sued the government.

The complaint posted this week says: "As a result of the disclosure... by the DEA, Mr. Paige became and is the target of jokes, derision, ridicule, and disparaging comments... Because he became highly recognizable as a result of the disclosure of the videotape, Mr. Paige has been unable to act as an undercover agent (and) is no longer permitted or able to give educational motivational speeches and presentations."

We all know the law rarely tracks morality, let alone common sense, but this claim seems unusually bizarre. Isn't it a good thing that Paige is no longer permitted to demonstrate "firearm safety" to children?

http://www.thesmokinggun.com/archive/0411061foot1.html

Rookie cop who shot himself to death at party was intoxicated http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/08/31/ BA78RSJKI.DTL

John Coté, Chronicle Staff Writer

(08-30) 17:14 PDT SAN MATEO - A San Francisco rookie police officer who shot himself to death during a late-night gathering at his San Mateo apartment was legally drunk, toxicology tests show.

Officer James Gustafson Jr., 23, had a blood alcohol level of 0.09 percent - slightly above the 0.08 limit for legally driving a car - when he shot himself Aug. 11, San Mateo County Coroner Robert Foucrault said today.

Gustafson shot himself in the neck at 1:40 a.m. during a gathering of as many as 15 people, as he was showing a woman how police are taught to prevent someone from using a gun against them, authorities said.

There's no way to know whether Gustafson was too drunk to know what he was doing, the coroner said.

"Somebody's blood alcohol level and their ability to function correctly can vary from individual to individual," Foucrault said. "It's subjective."

According to those familiar with the incident, Gustafson was showing the woman his Police Department-issued semiautomatic pistol after removing the magazine that stores the rounds. However, there was still a round in the chamber.

Gustafson pointed the weapon at his neck and pulled the trigger, shooting himself, according to authorities.

The coroner's office has ruled the case an accident. Police initially characterized the case as an accident but are awaiting official receipt of the toxicology results and gunshot residue tests before making a final determination, Lt. Mike Brunicardi said.

Gustafson graduated from the San Francisco police academy in January. He had recently finished a six-month stint in the Mission District under a field training officer and had been transferred to the department's Central Station.

Ga. Cop Shot by Gun Kept Under Pillow http://www.11alive.com/news/article_news.aspx?storyid=98443

ALBANY, Ga. (AP) -- A police officer was shot in the wrist when the service weapon that she kept under her pillow went off.

Albany police Sgt. Kinshishi Adams, 34, was lying in bed Sunday when a .40 caliber pistol she kept under her pillow discharged and struck her in her left wrist, Dougherty County Police Chief Don Cheek said.

Adams was listed in good condition Tuesday at Phoebe Putney Memorial Hospital, hospital spokeswoman Valerie Benton said.

"She sustained an extremely serious wound to the left wrist and underwent surgery (Sunday) night," Cheek said. "Everything indicates it was just a freak accident. She apparently sleeps with a weapon under her pillow, and somehow it discharged.

"She was by herself at the time. There is no indication that anything other than what she said happened."

The incident was being investigated by county police since it happened in their jurisdiction but has been forwarded to Albany police, which is conducting an internal investigation. Albany police did not immediately return a phone message for comment Tuesday.

Both Cheek and Albany police stressed the importance of gun safety in the wake of the accident.

"We train on gun safety and we stress gun safety, but even the people who handle guns for a living, accidents happen," Cheek said. "We just stress that firearms are not toys, and even people experienced with firearms occasionally have accidents."

Portland Police Officer Dies From Accidental Shooting http://www.wcsh6.com/news/article.aspx?storyid=86418

WESTBROOK (NEWS CENTER) -- A nine-year veteran of the Portland Police Department has died in what is being called an accidental shooting.

Westbrook Police say at 11:30 P.M. Monday, they responded to a reported shooting at 31 Deer Hill Circle. When the police showed up, they discovered Portland Police Sergeant Robert Johnsey unconscious with a bullet wound to his leg.

The officers administered first aid until an ambulance arrived. Johnsey was transported to Maine Medical Center where he soon succumbed to his injuries.

Investigators say it appears Sgt. Johnsey was servicing his duty weapon, a Smith and Wesson handgun, when it accidentally went off. The bullet hit an artery in his leg.

Portland Police Chief Tim Burton calls Johnsey, a kind and lovable person, a good cop and a good friend.

Sgt. Johnsey was a nine year veteran of the force. He was a member of the Honor Guard, the Crisis Intervention Team and was the supervisor of the canine unit. He also received several commendations, recognitions and letters of appreciation from the public.

Prior to his time with Portland PD, Johnsey was enlisted in the Army National Guard and was a member of the 143rd Military Police Company. He served in operations Desert Shield and Desert Storm.

Sgt. Johnsey is survived by his wife and two children.

Texas Officer Killed in Accidental Shooting http://www.officer.com/web/online/Officer-Down-News/Texas-Officer- Killed-in-Accidental-Shooting/2$39437 Funeral information below

Posted: Thursday, December 20, 2007 Updated: December 21st, 2007 11:08 AM PDT

FANNY S. CHIRINOS and DAVID KASSABIAN Corpus Christi Caller-Times

No details yet on shooting at firing range

Officials with Corpus Christi and the Port of Corpus Christi police departments did not release information Thursday about events leading to the fatal shooting of port police officer James Saavedra.

What they did say was that Wednesday's incident most likely was an accident.

Arch Archambo, the port's assistant police chief, said there is no hint of suspicion that the shooting was intentional. Corpus Christi Police Chief Bryan Smith said late Thursday that everything investigators have uncovered points to an accidental shooting.

Saavedra, 40, was shot in the stomach at 4:55 p.m. Wednesday while practicing at the port's shooting range in the Rincon Industrial Park with fellow port officer Eric A. Giannamore, 47. Saavedra died about an hour later at the hospital.

"These two would be the last people I would think would ever harm another person," Archambo said. "Somebody didn't follow the proper procedures, and there was a tragic consequence."

Archambo, who hadn't read the incident report but spoke with port police Chief Luther Kim, said Saavedra's injuries indicate he did not shoot himself.

Saavedra and Giannamore, both qualified range masters and experienced firearms instructors, were on duty and wearing bullet-proof vests at the time of the shooting. Although both officers were issued a .40 caliber Glock handgun, an AR-15 rifle and a Mossberg 12-gauge shotgun by the department, those weapons were not used in the incident, Archambo said.

Saavedra was shot with Giannamore's personal rifle, Archambo said. He was unsure what type of rifle Giannamore was using or whether Saavedra was downrange.

"From what I've heard, they were the only two people at the range," Archambo added.

Using personal weapons at the range is not common but is allowed, provided safety procedures are followed, Archambo said. Safety procedures include having a firearms instructor or range master on site, emptying weapons before anyone goes downrange and keeping firearms pointed in a safe direction, Kim said.

The range was closed following Wednesday's shooting and will remain closed until Corpus Christi police conclude their investigation at the site, Kim said.

Kim said he will wait for the final police report on the shooting to determine whether changes to the port's safety policy are warranted, he added.

A police report was not available for release late Thursday because a supervisor had not given it final approval, a Corpus Christi police open records official said. Smith said he was not able to give additional details about the incident because of the ongoing investigation, and authorities are verifying statements made by Giannamore.

Tony Saavedra, a 21-year-old officer with the Harris County Sheriff's Department and nephew of James, said his uncle was the reason he went into law enforcement.

"He took me on a ride-along when I was little and have been interested in it ever since," he said. "He was more than an uncle to me -- he was my friend and my hero."

Ed Shannon, Corpus Christi police lieutenant and Fraternal Order of Police local lodge president, said Saavedra would go out of his way to help those in need. Saavedra, who was on the board of the local lodge, was involved in the group's holiday Shop With a Cop program and last week took a child in-need Christmas shopping.

"James really looked forward to this time of year to help out -- he really liked doing the program, and he liked kids," Shannon said.

Saavedra, a top-notch cook, agreed to cater Shannon's 200-guest wedding and recently spent several weeks going to a co-worker's house after work and on his days off to finish a deck that needed to be done by the holidays.

"That's just the type of person he was," Shannon said.

Saavedra was one of the original officers first hired after the port police department was created in 2003.The department has nine officers total.

Before joining the port police, Saavedra was a deputy constable in Corpus Christi. He is survived by his wife, Rachel, two daughters and a son.

Giannamore has been put on paid administrative leave. A family member answering his home phone said the family was not making any statements.

06/30/2005

Why are we killing ourselves: A look at accidental shootings of police officers by police officers http://www.policeone.com/police/products/articles/116587/

By Stuart A. Meyers Operational Tactics, Inc.

Accidental shootings occur in law enforcement training and real-life situations at an alarming frequency. There is a direct correlation between training standards, safety protocol and operational performance. Recent deaths of police officers at the hands fellow police officers prompted the author to investigate the prevalence of this situation. The results of this investigation are not only disturbing, but shocking and elicit the following questions:

Why are we killing ourselves?

How do we ensure safe and effective training?

Prior to answering these questions, an understanding of the dilemma we face must be achieved. First the obvious, law enforcement officers carry firearms and handle them on a regular basis. SWAT officers and range personnel are even more prone to accidental discharges because of the sheer frequency that results from their weapons handling, training and operational requirements.

What is even more disturbing than the pervasiveness of improper firearms safety, is the fact that most law enforcement training is devoid of safety standards and is unrelated to operational requirements. All law enforcement training must be conducted with established safety guidelines and be a realistic portrayal of operational requirements. In addition, training should be designed to prepare and test officers in their individual and in the case of SWAT officers, team responsibilities.

A properly designed and implemented training program will enhance the opportunity to achieve the successful realization of operational objectives, to include officer safety issues. By implementing and practicing safety standards and protocol in training, a basis for operational safety can be created. A lack of safety standards or their subsequent enforcement can result in death or serious injury. While the author understands that "accidents" can occur, we need to eliminate or at the very least, minimize their severity.

This article is primarily directed toward firearms instructors and Special Weapons and Tactics team operators, team leaders and commanders. However, there is also a direct application for any law enforcement officer who carries a firearm and administrators with fiscal responsibilities.

The following incidents are described using the states of their occurrence and are only a few examples of police officers shooting themselves or other police officers, all resulting in death or serious injury.

A Rhode Island police captain was shot in the head and killed by a sniper during a training exercise. The captain had conducted a scenario earlier in the day where the sniper deployed in an observation role, only with binoculars. During a break, the sniper asked and received permission to retrieve his rifle from his police department locker. When the sniper returned, he deployed to his final operational position on top of a bus for the next scenario. The scenario had not yet started and the captain was seated in another bus that was to be the target location. The sniper decided to check his view of the target location. His magazine was removed from the rifle when he attempted to "dry fire" after sighting-in the captain seated on the bus. Although it has not been confirmed, it is believed that the round in the chamber had been left there from a previous training session and the chamber had not been checked. The captain, described as a weapons safety devotee, was killed instantly when the round penetrated his skull. The sniper was indicted on a charge of involuntary manslaughter by the grand jury and plead no contest.

An Alberta, Canada SWAT officer was shot and killed by a fellow SWAT officer during a hostage rescue training exercise. Members of two different groups from the same SWAT team were practicing room-clearing techniques for hostage rescue operations. One of the officers was assigned to research and development of cameras and fiber optic systems. A short break was taken for this officer to retrieve the system from his vehicle parked in a public parking lot. Per department policy, he reloaded his handgun prior to entering a public area. Upon his return, he hurriedly set up the camera system because team members at another location were awaiting the officers participating in this training to arrive at their location for additional training. After set-up was complete, the same officer was assigned as an assaulter on the entry team for the next scenario. He unloaded the magazine from his handgun, but was interrupted and did not remove the bullet from the chamber. When entry was made during the scenario, he fired one shot at another SWAT officer playing the role of a hostage taker, striking him in the neck. The round exited through his face, killing him in the arms of another SWAT officer. This was to have been a dry weapon exercise. It was commented by fellow team members, "Losing three officers going through the door [on an operation] would not be as bad a losing one officer this way."

A Maryland SWAT officer was shot with a shotgun during a room clearing exercise at a police department SWAT school. The pellets struck his upper shoulder and arm, after ricocheting off his body armor, causing the permanent incapacitation of his arm. Several officers were also struck with pellets and sustained non-life- threatening injuries. Blanks and fireworks were to be used during the exercise. Officers had been attending the SWAT school from multiple jurisdictions. The officer who fired the shot, arrived late for the training and bypassed all safety checks. He fired the weapon down a hall during an entry team scenario. The officer thought shotgun was still unloaded from a training session conducted the previous evening. After this incident, the Commander of the Maryland SWAT team banned all SWAT training, except for qualifications, for several years. His intent was to prevent future accidental shootings from occurring under similar situations. As a result of this incident, the officer who was shot retired on a medical disability. The SWAT Commander retired on a stress related medical disability and the officer who fired the shot, retired on a psychological disability.

A Maryland SWAT officer was shot in the back of the head and killed by a fellow SWAT officer while executing a narcotics search warrant on a residence. The officers had been briefed that automatic weapons may be present in the house. The officer killed was the pointman on his tactical team and approached the house on his hands and knees to place the hydraulic breaching tool in the door. As the hydraulic "rabbit" tool expanded, it caused the door to emit a loud cracking noise sounding like gunfire. Two members of the entry team behind the officer believed the team was under fire and discharged their weapons. At the same time, the officer who had just inserted the rabbit tool, started to stand and was struck and killed by the gunfire from one of the team members behind him.

An Oregon SWAT officer was shot in the head and killed during a tactical training exercise. The SWAT officer and his teammates were training in a building where only simulated ammunition was to be used. A team member retrieved a magazine thought to be unloaded, from the SWAT truck. This occurred during a lunch break and a safety check was not conducted when the officer with the magazine returned to the scene. The .223 weapon was fired from a position on the parameter of the operation, killing the officer who was playing the role of a suspect. An investigation by the Sheriff's Department Review Board found, "The SWAT team failed to have policy and standard operating procedures in place for safety issues dealing with training requiring live weapons." As a result of this incident the SWAT team was disbanded and only recently has been restructured.

An Oregon SWAT sergeant was shot in the chest by a SWAT sniper during a tactical operation. Team members were searching for the suspect accused of wounding a relative. The incident occurred on a cold, foggy evening where the police helicopter could not break through the fog to view the terrain. One person was wounded inside the house. The suspect had last been observed at the rear of his house, in brush area on his 10 acre property. The SWAT officers did not know that there was pile of brush that had been burning earlier in the day, located in the same area. The sniper and observer set up in their final operational position on the 2-3 corner of the residence, approximately 70-80 yards away from where the suspect had last been seen. The sniper observed what was later described as an "ember in the brush pile" giving the appearance of a person smoking a cigarette. The observer's radio was not working throughout the operation causing the sniper to handle radio transmission responsibilities. The sniper was in position with his .308 rifle and 4.5 x 14-power scope with an illuminated reticle. The observer had a . 223 rifle with 1.5-power mildot scope. A perimeter was established by SWAT team members. Ten minutes prior to deployment the sniper and observer were advised the suspect was 15 yards off of Side 3, at the brush/burn pile. The entry team had been positioned at the 1-2 corner staged to enter the residence when the sergeant who was the entry team leader, split the entry team without advising the rest of SWAT team via the radio. Three officers now moved to the 2-3 corner, while four officers moved to Side 4 of the house. Due to the fog and brush, the entry team members were not observed by the sniper/observer team during their movement. Normally, changes of plan are communicated to all team members. The SWAT Commander also communicates tactical team movement and sniper team coverage responsibilities. However, it is unknown why this procedure was not followed or why there was a lack of communication. The sergeant moved to a position approximately 15 yards from the 3-4 corner. The sniper was convinced the burn pile had the image of a person and observed what appeared to be the clear outline of a person. The observer stated the image seen looked like the suspect. Due to the angle of the sniper/observer team position, the sergeant was about 10 yards to the left of the pile. In previous tactical team training and on operations, team members never move alone. The figure observed had what appeared to be a rifle being held in a firing position up in his shoulder. Tactical team members usually keep their weapons in the low-ready position while moving, unless they encounter a target. The sniper observed an individual scanning the area with his weapon up and ready to fire. The individual under observation then stopped like he had acquired a target in the area where team members had been positioned. The sniper fired his rifle to protect other team members staged in the direction where the muzzle of the individual's weapon was pointed. There was no doubt in the sniper's mind that the person he shot had a weapon and had picked up a target to engage. The weapon being held appeared to be a rifle matching the information previously provided to tactical officers at the briefing. The sergeant who was shot with a .308 round by the sniper was actually holding an MP-5 sub-machine gun. The round penetrated the sergeant's vest and entered the left side of his chest. He is expected to recover from his injuries and has left the SWAT team.

A North Carolina Deputy Sheriff unaware that a military training exercise was being conducted, shot and killed a Special Forces lieutenant and wounded another soldier. The deputy stopped what he thought was a suspicious vehicle driven by a local man. The soldiers riding in the truck were dressed in civilian clothes, carrying a disassembled M-4 rifle in a duffel bag. When one of the three men in the truck came at the deputy, he used pepper spray, then opened fire, killing the lieutenant and wounding the other soldier. The soldiers thought the deputy was role-playing and intentionally resisted arrest. The deputy believing his life was in imminent danger of serious injury or death, shot the soldiers. Military personnel did not notify Sheriff's department officials of the training exercise, because no one thought they would be involved. As a result of this incident, military officials announced changes in training scenario procedure to include the elimination of role-playing with civilian law enforcement agencies and requiring soldiers to remain in uniform.

A Texas SWAT sergeant was accidentally shot and killed by a fellow SWAT team member during a barricade situation. The sergeant and other SWAT team members entered a home during a standoff with a suicidal man thought to have several weapons. Officers initially responded to the residence for a domestic dispute involving the man and his wife. After the wife left the home, the man dragged several pieces of furniture into the yard, doused them with gasoline, and then set them on fire. When officers arrived on the scene, the man was barricaded inside of the house. Several hours later, officers began clearing the windows in the house by knocking the glass out and removing any blinds obstructing the view into the home. One shot was initially fired be a member of the SWAT team, accidentally killing the SWAT sergeant. Other officers on the scene, thinking the shot was fired from the suspect inside the house, fired a total of 179 rounds. The unarmed suspect was wounded by the ensuing gunfire, but did not surrender until additional tear gas was fired into the home. The jurisdiction involved has paid over $1,000,000 to settle lawsuits resulting from this incident. In addition, the chief of police who was out of town during the incident was fired from his job due to political repercussions.

A Texas police corporal was shot by a fellow instructor in the head during active-shooter response training at a local junior high school. All of the officers involved were wearing helmets and vests and were not supposed to have live ammunition. After a lunch break, the corporal and another instructor were demonstrating a drill to other officers when the instructor's weapon discharged, striking the corporal in the head with a live round. The instructor had pulled his own loaded 9mm semiautomatic handgun from his holster which he reloaded when he went to lunch. However, the weapon was not unloaded again when he returned to the training, causing this fatality.

A Texas police officer was accidentally shot and killed by a fellow officer while serving a search warrant. Members of the narcotics team were executing the search warrant in a residence with multiple connecting doorways and rooms. The officer entered the room through one doorway, but after clearing the room, appeared in another doorway. A fellow narcotics officer upon observing someone with a weapon whom he did not immediately recognized, became startled and fired his shotgun killing the officer.

A Texas police officer was accidentally shot and killed by a fellow officer while explaining a training exercise conducted earlier in the day. The officer had returned to the police station from the training site and was demonstrating a tactical training exercise conducted earlier in the day. The officer forgot he had reloaded his weapon after the training session and became very involved in his explanation when he fired one shot, killing his fellow officer.

A Texas police officer was shot and killed by a fellow officer during the execution of a narcotics search warrant at an apartment. The tactical team was comprised of officers from two jurisdictions who attended an operational briefing prior to deploying. The officer who was shot did not attend the briefing, because he was conducting surveillance at the scene. The officer saw the tactical team was delayed at the entry point and rushed to the door to assist with his handgun drawn. He was not wearing a raid jacket or visible police identification and was unknown to the entry team member from another jurisdiction who fired the shot. The officer was shot with an MP-5 submachine gun. A lawsuit was filed by the officer's family resulting in a multimillion-dollar award.

A New Jersey police lieutenant accidentally shot and killed himself while cleaning his pistol. He and other officers had just completed the department's semi-annual qualification course and was cleaning his .40 caliber handgun when it discharged, striking him in the abdomen. He was transported to a local hospital where he died approximately one hour later.

A Nebraska police officer was shot in the chest and killed by another officer during a defensive tactics training exercise. The .45 caliber handgun had been reloaded during a break in training. The officer who fired the shot was not aware it would be used later in the day.

A Louisiana police officer was shot and killed during a training exercise at the police academy. Another officer shot the police officer in the chest during a felony car stop scenario. All weapons were to be unloaded. It is unknown why a live round was in the gun during the exercise.

A Louisiana police lieutenant was accidentally shot and killed by a fellow officer during a drug arrest. A task force comprised of several law enforcement agencies was taking down a vehicle occupied with drug dealers. The lieutenant was attempting to control and pat down a combative suspect on the ground. Another officer covering the suspect with a handgun, applied too much pressure to the trigger and accidentally shot the lieutenant in the head.

An Illinois police officer was accidentally shot and killed during a training accident. The officer was demonstrating a disarming technique when the officer he was working with grabbed his weapon and fired. The assisting officer was unaware that it had been reloaded. Four days later, while showing officers what happened, a captain from the same department, accidentally shot and killed himself. The captain removed the magazine from his weapon but forgot to take out the chambered round.

A New York police sergeant was accidentally shot and killed by another officer while executing a search warrant. When gunfire began inside the residence, the sergeant was mistakenly shot and died at the scene.

A Virginia SWAT officer was shot by a SWAT teammate during a training exercise. The round struck the officer in the abdomen, below his vest.

A California police officer was killed when he was shot in the side during a multi-jurisdictional training exercise aboard an Amtrak train. The officers in the exercise were supposed to have unloaded weapons.

A California police officer was shot and killed by a fellow officer during the execution of a high-risk search warrant. The officer's team was serving a warrant at a house thought to be occupied by three heavily armed drug dealers. The house was subsequently found to be unoccupied. Smoke grenades had been deployed, reducing visibility. The officer was in a room when a fellow officer mistook him for a suspect with a gun. The officer was shot with a shotgun and died 30 minutes later at a local hospital. His wife sued the SWAT supervisor, the police department, and the city. She settled with the city for $3,500,000. The United States Court of Appeals, Ninth Circuit held that the police department "acted with deliberate indifference to maintenance, training, and control of its SWAT teams, and that such indifference was proximate cause of sergeant's violation of officer's Fourth and Fourteenth Amendment rights, stated cause of action under 1983.U.S.C.A. Const. Amend 4, 14: 42 U.S.C.A. 1983."

These incidents are devastating for the officers, their families, and the agencies involved. Officers who were shot, officers who accidentally fired their weapons, witnesses and teammates all become victims having to live with this trauma for the rest of their lives. In addition, an occurrence of this type of incident can tarnish the hard-earned reputation of even the best law enforcement agency.

Officers and team leaders must speak-up immediately and acknowledge when breaches of safety protocol are observed. Supervisors and commanders must address these concerns to ensure injury and loss of life does not occur. The cost of proper training should not affect officer safety or operational concerns. In addition, the resulting liability from insufficient training standards will far exceed the cost of any training program.

Training Cost Factors

Budgetary constraints affect training. The number of officers requiring training, overtime considerations, the ability to attend outside agency training programs or employ outside instructors and equipment costs (targets, bullets, weapons, etc.) are all integral components of a training budget. The size of a training budget will be directly related to departmental size and operational requirements.

Fiscal conservatives oftentimes attempt to restrict the ability for officers to train properly. Administrators must consider the legal and financial consequences for failure to provide safe and effective training for their officers. The following judicial awards demonstrate the court's willingness to hold law enforcement agencies liable for failure to properly train and supervise their officers.

A woman with a knife who approached an officer fighting with her brother was awarded $6 million for the officers' actions in shooting her eight times. The jury found that the city failed to adequately train and supervise its officers. Willingham v. Boynton Beach, U.S. Dist. Ct. Miami Fla., April 11, 1998, reported in The New York Times, National Edition, p. 16 (April 12, 1998).

The County of Los Angeles was liable for $750,000 as a result of an off-duty deputy sheriff's accidental shooting of another bar patron during an altercation outside bar. The suit claimed the county did not adequately train deputies on securing their guns while off- duty or responding while off-duty, to challenges. Huffman v. County of Los Angeles, CV95-4071-HLH, U.S. Dist. Ct., Los Angeles, Calif, reported in LA Daily Journal, p. 2 (Oct 18, 1996).

The County and deputy were found liable for the accidental shooting death of the deputy's partner. An award in the amount of $1 million in damages and $636,800 in attorneys' fees were issued in a case where the plaintiffs alleged the deputy received no firearms training. Carr v. Hicks, U.S. Dist. Ct., WD Tenn, No 89-3090 ML/B, Nov 9, 1993, 37 (7). ATLA L.Rptr. 257 (Sept 1994).

The estate of man shot by officers entering trailer without announcing themselves during the execution of a search warrant received a $950,000 settlement. The suit claimed that the county failed to properly train officers in the use of their weapons. Bryant v. County of Dodge, U.S. Dist. Ct., ED Wis, No 95-C-0526, Apr 25, 1996, reported in 39 ATLA L.Rptr. No 7, p. 273 (Sept 1996).

A jury awarded $200,000 to an arrestee for an officer's alleged use of excessive force during the arrest. The city and police chief were found liable for having a policy of inadequate training, supervision, and discipline. Hogan v. Franco, 896 F.Supp. 1313 (NDNY 1995).

The family of a man shot and killed by officers when he lunged at them with knife received a $500,000 settlement. The city and police chief were found liable due to inadequate training and supervision of police department employees. Garcia v. City of Robinson, U.S. Dist. Ct., WD Tex, No W-93-CA-415, Sept 14, 1995, reported in 39 ATLA L. Rep.No 1, pg 15 (Feb 1996).

The District of Columbia was liable for $425,046.67 in the shooting of an arrestee by an officer. The award was based on inadequate training in extra jurisdictional arrest authority, physical training and disarmament training. Parker v. District of Columbia, 850 F.2d 708 (DC Cir. 1988).

Liability was imposed for failure to place a police officer that was unfit for his assignment into a non-sensitive position after numerous disciplinary reports had been brought to the attention of the supervisor. Under this theory of negligence, administrators must be aware of the capabilities and inadequacies of their employees to learn and develop these skills prior to assignment. The concept of administrative negligence had historically been directed toward excessive use of force in this area. However, the concept has been expanded to include the failure to establish, maintain and enforce standards. Liability can be incurred for negligent supervision, Moon v. Winfield, 383 F.Supp 31 (N.D. Ill. 1974).

The plaintiff, who had been arrested by police officers, fell down several times while in custody and responded incoherently when asked if she required medical attention; no medical attention was ever provided. The plaintiff was later released from custody and taken by her family to the hospital where she was treated for several emotional ailments. She brought action against the City of Canton under 42 USCS § 1983 for violating the plaintiff's right, under the due process clause of the Federal Constitution's Fourteenth Amendment, to receive necessary medical attention while in police custody. Shift commanders responsible for making a determination if medical attention was required were not provided any special training to make such determinations. The United States Supreme Court held that failure-to-train liability is proper "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." It also held that inadequate training could serve as a basis for liability only where the failure to train amounts to deliberate indifference by policy makers of the agency. In adopting the deliberate indifference standard, the court explained that inadequate training applies when the need for more or different training is obvious and failure to implement such training is likely to result in constitutional violations. The court further noted that officers must receive ongoing training for typical and recurrent situations that face the officer. The case was remanded back to district court. City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed. 2d 412 (1989).

In § 1983 action against the county, its sheriff and several deputies, the United States District Court, Western District of Washington, entered judgment on the jury verdict finding the defendants liable for damages for excessive use of force used while arresting citizens in four separate incidents. The defendants appealed the verdict. The Court of Appeals upheld the verdict and found that: (1) the sheriff was the official policy maker regarding law enforcement practices; (2) the county's failure to adequately train its deputies as to the constitutional limits of use of force was deliberate indifference to the safety of county inhabitants as matter of law for purposes of § 1983 liability; and (3) the evidence supported an award of punitive damages. The court awarded punitive damages only against the individual deputies, totaling $320,000. It awarded $528,000 in compensatory damages against all of the individual deputies and the County. The district court awarded $323,559.65 in attorneys' fees, expenses and costs to plaintiffs. The issue is not whether the officers had received any training--most of the deputies involved had some training, even if it was minimal at best--rather the issue is the adequacy of that training. Davis v. Mason County, 927 F. 2d 1473 (CA9 1991).

An understanding of department liability is critical to the development of a tactical team. Supervisors and team members need even more specialized training to properly respond to inherent dangers. The potential monetary repercussions will far exceed any investment in training.

Solutions

Once we understand that these are not isolated incidents, but a direct result of improper training, inadequate/neglected safety standards, or poor execution of operational objectives we can address solutions. Law enforcement and military agencies must develop training programs for their officers. These programs must incorporate realistic training and objectives based on operational responsibilities, expectations, and officer safety. Officers should become proficient at each level of their training before advancing. In other words, prior to conducting live-fire entry team training for the first time, start with empty weapon exercises. As proficiency and understanding of goals and objectives increase, difficulty can also increase. The use of blank and simulated ammunition can be introduced. When officers are proficient, single person live-fire entries working toward the goal of entire team live-fire entries and room/building clearing exercises can be conducted. The ultimate SWAT exercise would consist of a live-fire sniper initiated entry with an entire SWAT team entering and clearing a building, engaging hostile targets while not engaging images of hostages and innocent people. For patrol officer training, work toward the goal of multiple officers clearing a building on a suspicious situation or active- shooter response, using live-fire when necessary.

An in-depth analysis of training concepts and protocol will be covered in a future article dedicated to the development of training programs. This critical area is often overlooked by law enforcement agencies, but is the foundation of an efficient and effective operational response.

Training Safety

In conjunction with developing a training program, safety standards and protocol must be established. The following safety standards and protocol are followed at all Operational Tactics, Inc. training programs and schools.

Prior to conducting any scenario or training exercise, the dispatch center of the jurisdiction where the training is to be conducted will be notified. If neighboring law enforcement jurisdictions are in close proximity or could reasonably be expected to come in contact with the training/scenario site, then their dispatch centers will be contacted as well.

Whenever possible, "Police Training In Progress" signs will be placed on access roads at the scenario site.

A designated safety vehicle equipped with a mobile telephone will be parked in close proximity at the training location.

Depending upon the total number of personnel to be trained, a minimum of two people will be assigned as safety officers.

The safety officers will have overlapping responsibilities with both being required to conduct separate weapons and ammunition checks of all participants.

All participants are advised that they are safety officers as well. Any unsafe act must be reported immediately. Participants also have the authority to halt the training exercise to address any concerns.

Participants are advised to keep their fingers off of the trigger unless preparing to fire and to be aware of proper target identification and backdrop.

Participants must wear and carry all necessary operational gear with them at all times (except live ammunition unless instructed).

Officers arriving late or leave and later return to the training/scenario may not participate.

If a break is taken during the training, the inspection process is conducted again in its entirety.

Prior to the commencement of training exercises/scenarios, participants and observers line up in a safe direction and unload all weapons.

Participants must present ALL weapons to instructors/safety officers for visual and physical inspection. Three instructors/safety officers are responsible for conducting this safety check. If there are only two designed safety officers present, then one participant will be a designated safety officer to assist in conducting this weapons check. Unless a live-fire exercise is to be conducted, live ammunition must not be present in any weapon, gear, pockets, bags, or other equipment used by the participants.

Record serial numbers of all weapons to be used in the training session, after they have been checked for live ammunition.

When using vehicles as part of a training exercise, they must be checked for live ammunition as well. Efforts must be made to restrict access to any area where live ammunition could be present.

If live-fire training is to be conducted, ALL weapons are visually and physically inspected by instructors/safety officers. Instructions are given to the participants to wait for the specific command to load and fire their weapons. They are again instructed to ensure proper target identification and backdrop, prior to discharging their weapons. Prior to commencement of the exercise, all training areas must be cleared of personnel who may have inadvertently entered a danger zone. Ballistic vests and helmets must be worn at all times by participants and safety officers (except for exercises conducted exclusively for snipers).

Officers/trainees will not be permitted to fire alone on the range. At least one safety officer or instructor must be within view and voice contact of any officer/trainee conducting live-fire training on the range.

If blank rounds are to be used, one round is fired to demonstrate the degree of force discharged from the weapon. Participants are instructed to ensure their weapons are not pointed directly at anyone within 20 feet.

For stalking exercises where blank rounds are used, officers/ trainees will not sight-in instructors acting as spotters/suspects down range. Targets will be posted in the area where the spotters/ suspects are located for officers/trainees to sight-in and engage. Anyone observed sighting in a spotter/suspect will be removed from the training and be subject to disciplinary action.

If simulated ammunition is to be used, a demonstration of the impact after being discharged from the weapon is conducted, prior to deployment. Participants are instructed to only fire sufficient rounds to stop the threat. Participants and safety officers must wear eye protection and have all exposed skin covered with clothing. Groin protection such as an athletic cup or thick towel must be used for males as well as females.

For night-fire exercises, all participants and instructors must be accounted for when returning from target areas on the range. Safety officers must also check the areas and a roll call conducted to ensure no one has been left behind.

For shoot-house exercises, all live-fire areas must be cleared of personnel, prior to the commencement of training. Observers are positioned in a designated safe location or directly behind the participants. They must have direct voice contact with the participants. Participants are instructed not to inadvertently point their weapons at teammates in front of them or to turn around with their weapons in hand. Once an area has been passed, any targets missed and subsequently observed may not be engaged.

At the conclusion of the training day, officers will reload their duty handguns in a safe direction, prior to leaving the training site. Safety standards and protocols must be enacted prior to conducting any training. The above recommendations are designed to promote safe weapons handling while conducting realistic training. Operational Safety

Law enforcement officer safety should be the most important factor on any critical incident. It has been suggested in the tactical community that the lives of hostages are more important than the lives of rescuing officers. While the author recognizes the inherent risks associated with hostage rescue, he suggests that the primary concern of ANY operation should be officer safety. If officers are killed deploying on an operation, the entire operation may be compromised. Dead or seriously injured officers are unable to rescue anyone. In order to avoid unnecessary risks, safety issues should be considered in the formulation of an operational plan. However, when developing an operational plan, an understanding of safety standards and protocol must be established. Operational Tactics, Inc. Recommended Tactical Team Deployment Safety Standards and Protocols

Whenever possible, all law enforcement personnel involved in the operation should attend the incident briefing. Exceptions to this protocol would include incidents requiring exigent deployment of officers or pre-deployment of surveillance personnel.

Officers will be briefed and updated on team member positioning and changes throughout the incident.

All officers except snipers, who deploy on a tactical operation will have law enforcement identification clearly visible on their outer garments. This identification will consist of any two of the following items: badge, patch, raid jacket with POLICE or SHERIFF"S DEPARTMENT printed in the front and back, or any item readily identifiable by all department members and citizens. Snipers will carry a badge and their official identification cards in a pocket or bag.

Weapons such as shotguns that can be used to discharge less- lethal munitions will be marked to visibly differentiate them from lethal weapons. Officers deploying with less-lethal weapon systems will ensure live-ammunition is not present.

Prior to leaving the staging or briefing area all officers will ensure their weapons are loaded, a communications check is conducted, and an incident overview has been provided.

Prior to final deployment, officers will be instructed to take their weapons off of the safe position, to keep their fingers off of the trigger unless preparing to fire, and to be aware of proper target identification and backdrop.

Law enforcement snipers should deploy in two-person teams.

Once officers have relayed their perimeter position to the command post, they will advise the command post of future changes in their position.

At the conclusion of any deployment where additional weapons were loaded, these weapons will be unloaded in a safe direction and stored per department policy.

This protocol should be incorporated into a detailed operational plan, determined by the exact circumstances and nature of each critical incident. Tactical team training, policy, tactics, available equipment, personnel and training are all factors affecting a final plan. The creation and implementation of an operational plan will enhance the ability to successfully resolve critical incidents with minimum risk to officer's lives.

In this article the author has attempted to educate the law enforcement and military community on potential training and operational hazards and provide a variety of solutions to avoid these tragedies. In interviewing many agencies involved in training and operational accidents, the author had the opportunity to speak with commanders, SWAT team members, witnesses to shootings, and officers directly involved in the shootings. There is a deep sense of regret, embarrassment, psychological trauma and in many cases, a desire to restrict information regarding the circumstances of their occurrence for personal and legal reasons.

The information presented is for educational purposes only. It is not designed to limit training or law enforcement response procedures and options. We have an overwhelming obligation to provide educational resources and information that could save lives, in particular, the lives of brother and sister officers. If we develop the attitude that IT can't happen to us, then be assured IT will. In addition, the excuse that tactical officers are so highly training that safety protocol does not need to be followed is absurd. We must not assume anything and ensure that all officers adhere to established safety standards. The entrustment of all lives is everyone's interminable responsibility.

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Stuart A. Meyers is the Chief Executive Officer of OpTac International, Inc. and President of Operational Tactics, Inc., a non- profit organization dedicated to the education of law enforcement and military personnel. To comment or for further information, please access www.optacinternational.com, www.operationaltactics.org, or email info@optacinternational.com.

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