WHO'S KIDDING WHO? 02/14/08
The Chicago Police Department has decided that the ability to defend itself from lawsuits is more important than the safety of our communities. The Department issued a revision to General Order 02-03 in which it amended the order to state, “Every person arrested without a warrant…will appear in court, without unnecessary delay. Under no circumstances, will such a person appear in court any later than 48 hour from the time of arrest.” The order goes on to state that the revision is a “continuing commitment to comply fully with the U.S. Constitution as interpreted by the U.S. Supreme Court.”
That statement is patently false. The City has either misinterpreted the law, or even worse, is simply attempting to deceive its members with this order. The Supreme Court never said that an arrestee must appear before a judge within 48 hours of arrest. The law requires that an arrestee appear before a judge within a reasonable time. The Supreme Court stated years ago, and the law remains unchanged, that if an arrestee does not receive a probable cause hearing within 48 hours, then the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. There are many, many examples of cases that have gone to court and survived various motions despite the fact that the detention exceeded 48 hours. The courts understand that a detention in excess of 48 hours may be permissible based on the circumstances surrounding the detention. The Chicago Police Department does not get it.
The genesis of the original G.O. came after an Illinois Appellate Court case, People v. Willis, 2002. In that case, the Illinois Appellate Court held that the exclusionary rule applied to a statement garnered after 48 hours. This case has been reversed. The Illinois Supreme Court subsequently ruled that the Court needs to consider the totality of circumstances surrounding the prolonged detention. A detention beyond 48 hours does not automatically invalidate an arrest, as the City has interpreted.
It is a sad day when a community’s interests are sacrificed by its own police department. The Chicago Police Department can implement a stricter standard to the arrest procedures if it so chooses. However, when it points the finger at the Supreme Court and blames the Court for creating the policy when in fact it was the Department’s own decision to implement the policy; the Lodge believes that the truth must be exposed. The Lodge will not allow the Chicago Police Department to hide behind the court in this case. The decision to implement the order is squarely on the Department and the motivation behind the decision $tinks.
Friday, February 15, 2008
48 HOUR RULE
This is from the FOP Lodge 7 site:
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3 comments:
The 48 hour rule comes from a case County of Riverside etal v McLaughlin - look it up! What the City of Chicago is doing is to prevent the a/Os from being personally liable of a civil rights violation
Where did you get your info? It's partially wrong. There IS a standard of 48hrs that the Supreme Court decided was the reasonable amount of time. They did leave the exclusion about "emergency circumstances." They also specified that the States Attorney's (prosecutors) unwillingness to approve charges is not a good enough reason when deciding if the police were PUNITIVELY RESPONSABLE. The case law says it. If you missed those pages of the briefs handed out at 35th street to the Commanders to share with everybody or have some inside info let us know. What I read said exactly that. The original case started in 1975 and the Supreme Court found that we Law Enforcement agencies have what they call a "reasonable amount of time to be 48 hours." That is before they are formally charged or brought before a judge. There is no discrepancy. It is what it is. It sucks, but we just haven't played within the rules. Miami does it, California does it, Michigan does it, and most other places that have lawyers. This was decided by the Supreme Court, not the 7th Circuit court of Appeals. That means that it applies to EVERY JURISDICTION. We have to adjust. No more Tact teams picking up the named offender for a felony without contacting the Detectives and the victims. No more Alerts unless the State has already interviewed everyone and has them on paper. No more, "4 hour arrest and inventory,) then call the Detectives. You make the arrest and while you’re driving in, you make the notification. No exceptions. You find an alert on the PDT to go along with your arrest; you STILL IMMEDITEATLY call the Area!!!! New way, but we will get by and protect our families, and not get put in jail for bullshit or lose our house. Stay Safe.
The following is directly from Riverside v. McLaughlin-
"We believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.
This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.
Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest".
If you violate Mookie's rights then you can be sued. It doesn't matter what a G.O. says. Even if the G.O. allowed it, you still violate the Constitution. The G.O. is to help the City get out of lawsuits. If you violate the 48 hour rule, the City can point the finger on you by saying our policies are good, the PO screwed up. What does this mean? It means that you can be held liable for punitive damages. Those come out of your pocket and not the City's. Let em go, it's not worth it.
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