“The power to tax is the power to destroy,” said Daniel Webster in arguing the McCulloch v. Maryland case in 1819. Webster, was of course, prescient, but limited in scope as he was referring to businesses and institutions ground under by overweening governmental power. The power of government to destroy is not limited to taxation. There are, in fact, two powers that affect the average man on a daily basis: the power to arrest and the power to prosecute.
“Our Constitution was made only for moral and religious people. It is wholly inadequate to the government of any other,” said John Adams, founding father and America’s second president. It is for this reason that we must always be careful to appoint as our police officers and prosecutors, men and women of the highest moral character. In their hands, in the exercise of their discretion on our behalf, we place, figuratively and literally, the power to destroy, the power to take life and liberty, to sunder families and destroy reputations. Nowhere is the abuse of these powers more evident in contemporary America than in the Las Vegas Valley of Nevada.
Since August of 2010, I’ve been reporting on the shooting of Erik Scott by thee police officers of the Las Vegas Metropolitan Police. All of my updated (reprised) articles on that case are available in the SMM Erik Scott Case Archive. I have also been reporting on the most egregious behaviors of other Metro officers (lesser abuses obviously occur daily), and also officers of the Henderson police force, such as the Adam Greene case analyzed in Update 16. I’ll be updating that particular case in the next Scott case article, which will be coming soon.
My interest in the Scott—and related—cases, stems from my police experience and a desire to explain to the public not only what is wrong with those cases, but what professional, constitutional law enforcement can and must be. To that end, I am unaware of any law enforcement agency and any group of officers more worthy of being the very models for a “how not to do law enforcement” textbook than Metro and its officers.
The Las Vegas Review-Journal’s recent five part series on Metro was a reasonable beginning from a newspaper that seems all but unable to state the obvious in reporting on Metro. While the R-J did bring to light a number of interesting cases, including an officer that killed a man by cutting his throat (?!) and shooting him, yet suffered no discipline (the universal Metro outcome in any shooting of a citizen), it treated Metro’s version of the Scott case as gospel, and has been almost completely incurious about it, failing to ask even the most obvious questions. For example, its article on the Public Administrator’s office failed to interview Steve Grodin, the Deputy PA involved in the illegal search and seizure of Scott’s home, and failed to ask any meaningful questions about that case, instead allowing the Public Administrator to praise himself and his agency. I’ll be writing more about this soon.
In any law enforcement agency (LEA), professionalism and adherence not only to the letter of the law, but to its spirit, is a matter of bottom to top and top to bottom, continual reinforcement. Officers must know that stepping over the line will not only result in punishment, but that even their peers will not abide it. They must be certain that mistakes, and particularly criminal acts by officers will not be covered up or ignored. Even more, they must believe in their very souls that they are the servants of the public, a public to which they owe efficiency, competence, kindness and courtesy. This never means police officers must be weak and ineffective. The fact is that the most capable and professional officers know they need not thump their chests in overtly abusive displays of power. Being “badge heavy,” as officers call it, is not necessary, desirable or remotely wise.
The first line of enforcement in any LEA is the shift supervisor, the sergeant. If they are not the unflinching custodians of professionalism, it will not exist and a police force will inevitably degenerate into a taxpayer supported criminal gang. I have not reported the many anecdotes related to me by present and former residents of Las Vegas because virtually all have asked for anonymity to protect themselves or friends and relatives. But all of their stories, even if only 50% accurate (and I suspect they are far, far more accurate than that), tell the tale of a police force full of arrogant incompetents, goof-offs, brutal thugs, and criminals. I know this: I would never live in Las Vegas, because I simply could not trust the police, and would have to live in fear—quite literally of my life and that of my family—in any potential contact with them. As one who lawfully carries a concealed weapon, I would expect my life to be in mortal danger whenever a Metro officer was in sight. Even the relatively small number of confirmed tales of police misconduct known to the general public make that reality glaringly obvious. If the full depth of corruption and daily abuse of citizens was known, real consequences for Metro might become possible.
And so we come to a disappointing development in the Scott case. I’ll let the Scott family’s news release speak to the issue:
Scott Family Announces Erik B. Scott Lawsuit to be Dismissed
Las Vegas, NV (March 13, 2012) – Upon advice of legal counsel, the family of Erik B. Scott has dismissed its lawsuit against the Las Vegas Metropolitan Police Department, Sheriff Doug Gillespie and the three officers who shot and killed Erik on July 10, 2010.
‘We are extremely disappointed, and this action is being taken with great reluctance,’ said William B. Scott, Erik’s father. ‘We thank our attorney, Ross Goodman, and his team for their outstanding efforts on Erik’s and our behalf. It’s time to move on with our lives.’
‘We feel Erik was wrongfully killed, through an incredibly tragic mistake,” he added. ‘Officer William Mosher claimed he tapped Erik on the shoulder, and Mosher confirmed, at the coroner’s inquest hearing, that Erik responded by stating that he had a concealed firearm. Erik was trying to comply with the officer’s conflicting commands, when Mosher fired two shots. The commands and those first shots occurred within two seconds. Mosher’s first round hit Erik in the heart, killing him instantly. The second round went through Erik’s right thigh. Officers Mendiola and Stark then fired another five rounds into Erik’s back, after my son was on the ground and dying.’
Despite multiple witnesses confirming Erik was complying with Officer Mosher’s commands, recent Ninth Circuit Court opinions finding ‘qualified immunity’ for police officers, even after agreeing excessive force had been used, makes it difficult to proceed with this lawsuit.
‘While we believe the Costco surveillance-video data — which captured the shooting — provides irrefutable evidence that Erik was wrongfully killed, the ‘missing’ segment of that video makes it difficult to overcome those qualified-immunity legal issues,’ Scott said.
The Reality of Lawsuits:
Most lawsuits are possible because attorneys are willing to accept cases on contingency. This means that in exchange for a set percentage of an anticipated settlement—commonly 1/3 (and sometimes expenses)–a law firm will pursue a civil suit, which was what happened in the Scott case. Without this option, most citizens simply could not afford to pursue any legal action against an unaccountable, corrupt government with an essentially unlimited supply of taxpayer cash. The fact that any LEA has essentially unlimited resources to defend against any suit–as long as its civilian overseers allow it–as well as the power of intimidation—real or imagined—are essentially insurmountable advantages, particularly if such agency is corrupt and unrestrained by the law and any sense of morality.
When lawyers begin to doubt that they will win a settlement, they tend to quickly lose enthusiasm for their clients. In essence, few lawyers will enter into such agreements unless they are virtually certain to win and make a substantial profit in the process. It is this that makes the Scott case particularly frustrating, for there are issues involved, not only for the citizens of Las Vegas, far more important than cost. I’ve little doubt that the Scott family was, first and foremost, hoping that justice–in one way or another–would be done. I suspect they also hoped, by means of costing Clark County the largest possible sum of money, that its politicians might be forced to make necessary changes. Considering the nature of Las Vegas this may have been a vain hope, but a noble hope nonetheless.
Surely the Goodman law firm—and any other firms with which it might have consulted or worked—was more than aware of the issue of qualified immunity. That doctrine is a hurdle in the suing of police officers to be sure, but not an insurmountable hurdle. During my police service, I did not for a moment believe that the doctrine would allow me to do as I pleased without fear of consequence, and those many former officers around the nation that have been successfully sued for official misconduct would certainly attest to the reality that it is not an absolute bar to bringing or prevailing in a suit. Several commenting on the Scott case suggested that it would fail for this reason, however, that could never have been a foregone conclusion for two primary reasons: (1) The police have been and can be successfully sued; qualified immunity is not an absolute bar to success. (2) The attorneys of the Scott family obviously believed, for nearly two years, they could overcome its presumption.
Surely the lawyers involved knew of the rulings and tendencies of the 9th Circuit before they ever agreed to take the case. They must have known that no Circuit is more overturned by the Supreme Court than the 9th. Yet knowing this and more, they pursued the case for nearly two years.
The Las Vegas Review-Journal account noted:
Scott family attorney Ross Goodman said the decision came down to what was one of the most controversial aspects of the case: the lack of surveillance video of the incident.
Goodman said that without the video, he didn’t feel he could overcome a qualified immunity defense for police officers, which the 9th U.S. Circuit Court of Appeals recently has bolstered. The appeals court recently ruled that even when excessive force is used by police, officers are entitled to an affirmative defense of ‘qualified immunity,’ Goodman said.
Under federal law, qualified immunity is a defense given to government agents protecting them against civil lawsuits if they act within the established law. Regarding a law enforcement agent’s use of excessive force, a plaintiff must show the officer acted wrongfully to overcome the qualified immunity defense.
Goodman and the Scott family had hoped that security footage of the incident would prove the officers acted wrongfully. But the footage does not exist.
‘We believe had the Costco video existed it would have unequivocally shown that Erik was wrongfully shot and it would have negated qualified immunity as an affirmative defense,’ Goodman said.
In order to accept the R-J’s assertion that no video exists, one must accept—as they obviously have—Metro’s word and that of Costco, and there is more than adequate evidence to believe that their word in this, and other matters, is less than trustworthy. Considering the very real and overwhelming self-interest of Metro and Costco in maintaining that no video exists, the R-J’s uncritical acceptance of their word is remarkable. Blindly accepting such assurances in the face of compelling evidence to the contrary does not well become a newspaper. The Scott family offered nearly $30,000 for Costco footage (an issue I’ll expand upon in an update in the near future), which almost certainly does exist. Keep in mind that I qualify the issue only because I do not have physical proof—such as actual footage in my hand or the hand of trustworthy others—to prove it beyond any doubt. Persistent credible rumors have suggested that several copies of the footage do exist, yet they remain underground, so to speak. It is certainly possible that more money offered for the footage might have produced it, however, it is probable that the Scott family simply didn’t have the kind of money necessary to shake it loose, and obviously, the lawyers involved were unwilling to front it.
It would be worthwhile for readers to remember that, as I outlined in Update 8 a quantity of data equivalent to 128 DVDs—some 256 hours of video data–was recovered from the Costco video recording system—this was admitted by Metro—yet, the exact nature of that data remains unknown to this day. The government and private technicians that are known to have recovered the data have reportedly claimed that they did not so much as bother to glance at the imagery they recovered for Metro, and accordingly, supposedly have no idea what it is. A very large number of questions about that data and its handling remain unanswered, such as why Metro would send the Costco hard drive (or drives) not only to the Secret Service but to Seagate to recover video evidence that supposedly did not exist, yet the R-J is apparently comfortable writing “…the footage does not exist.”
If this is the primary reason the attorneys backed away from the case, it seems odd that it would take them nearly two years to process information available shortly after the case was filed. However, this may be nothing more than the usual course of complex cases: not every issue or its importance is immediately apparent. There is no doubt the case against Metro was—and remains—strong, and it is in part for that reason that I will continue to report on the Scott case and other, related cases. There is a very real public interest in knowing the nature of the law enforcement agencies, prosecutors and other public servants ostensibly serving them.
As Bill Scott, Erik’s father, has said, this dismissal of the case against Metro is not the end of the issue. The Scotts have until July 10, 2012 (the Nevada statute of limitations for the filing of civil suits is two years) to re-file the case against Costco and its employees, and that possibility has not been, by any means, closed.
In addition, the Department of Justice has assigned a group of consultants to investigate Metro—including the Scott case—to render a recommendation for possible future action. That investigation is ongoing, and I have reason to believe that my analyses of the Scott Case, as well as a great many other documents, have been brought to their attention. I do not, however, hold out great hope for that avenue under the Holder DOJ, which as PJ Media’s J. Christian Adams and others have convincingly documented, is hopelessly politicized and racist. For example, in the Florida case of 17 year-old Trayvon Martin, a teenager shot and killed by a man part of a neighborhood watch group, the DOJ has already begun a complete FBI/DOJ investigation into the case, which will certainly result in federal charges for the man that shot Martin. Why would the Holder DOJ ignore decades of incompetence, multiple suspicious killings of citizens, and corruption on the part of Metro, yet immediately intervene in the Florida case? Trayvon Martin was black, and Erik Scott was a red-headed white man, a West Point graduate and veteran, killed in Senator Harry Reid’s backyard.
Notice that I am making no comment about the merits of the Martin case. I have not done sufficient research to have an informed opinion. Am I saying that racism and politics might be playing a role? Could that be possible in the Obama Administration and the Holder DOJ? There is more than sufficient evidence relating to the politicization and racialism of the Holder DOJ for readers to make their own informed conclusions. In any case, if Mr. Obama is not reelected, the possibility for DOJ action on this particular front may significantly increase.
Bill Scott will also be resuming work on his novel “The Permit,” which though a work of fiction, is quite accurate and authoritative on the Scott case. This book will be around a very long time and will continue to be a thorn in Metro’s side for decades to come, which honest citizens must, sadly, deem a good thing.
Like the Scott family, I will also do my part to keep this case alive so that the public can be sufficiently well informed to make wise electoral and legislative decisions, in Las Vegas and elsewhere. The Scott case has already forced changes in the Clark County inquest procedure, a matter about which I’ll be writing more in the near future. It has also prevented the Nevada legislature from passing legislation that would have helped the Metro police union to conceal deadly misconduct from the public, in the same way that it has forced that union to display its utter contempt for the rule of law and for serving the public by encouraging its officers to refuse to testify about their official actions in inquests and possibly, other hearings, another issue about which I’ll have more to say in the near future.
I suspect that there will also be many working behind the scenes to bring to light not only the Costco video, but other evidence of Metro’s corruption, not only in the Scott, but in other cases.
But ultimately, I’ll continue to report on this case because it utterly offends my sense of honor. Despite the fact I am no longer an active-duty law enforcement officer, I still have great respect for those who serve, and I know that most officers, even working for Metro, are not corrupt and dangerous to the public and Constitution they swear an oath to serve. When any of us allow such people to abuse the law, to threaten the livelihoods and lives of anyone, we surrender to them and fail to support those who would honorably serve. I would hope that whether one agrees with all of my findings and conclusions in this particular case, they could at least agree with that.