THE KILLING OF LAVOY FINICUM LEGAL?

THE SUNDAY POST 01/31/2016

The United States Constitution, protected by American citizens and public officials who have sworn to “ support, obey and defend” it, has been in effect for nearly 225 years; making it the oldest, and longest lasting, constitution or charter of any nation on earth today.

            We at Codefore are compelled to voice an opinion about the killing of LaVoy Finicum.  I am deeply concerned with the actions taken by those who are elected or employed to protect us as citizens but more importantly are sworn to uphold the US Constitution.

             As a retired police officer of many years I am well versed in the accepted and required rules that dictate an officer’s use of force to facilitate an arrest, or protect a person or property.  Specifically I will address the term “Lethal use of force.”

            There are two things we should consider when trying to understand when and what type of force a police officer has when exercising the authority to physically restrain a person or use lethal force.   The incidents in Oregon that resulted in the deaths of two people at the hands of the authorities is sketchy at best.   I have reviewed several of the posted videos taken from an aircraft. I applaud some of the internet users and their abilities to enhance, slow down and point out important items on these photos.   But there are questions that remain even after viewing these photos such as exactly who are these authorities? Are they sworn police officers? are they military? or are some of them neither?  This determination is necessary when evaluating not only authority but type and extent of use of force.

            In this article I am not going to address the political stances of either the Federal Government or the people who were occupying the buildings that were presumably on Federal land.  However the Federal land  part is somewhat important when establishing venue or jurisdiction.   Its obvious that there are high emotions on both sides of  this incident but Codefore will look at this from an impartial observer of the use of force and in particular the use of lethal force. BLM

            In the United States we have a Constitution that limits the authority of the Federal Government, State Governments and local governments.  Albeit, Codefore is concerned that the Federal and State government s may have overstepped their authority, and the local government possibly conspired to place authority in the hands of the Federal Government when not needed or not within the rules and laws as set forth by our Constitution and Congress.

            After researching the authority to intervene and negate the activities of the occupiers and not withstanding any lower court rulings, or local laws we offer the below Federal laws for your review and as support for our opinions .  We have highlighted the words and phrases that are of special interest as they relate to the particular incidents that resulted in the death of LaVoy  Finicum.  We are only concerned with Federal law at this point because the use of force by a person of authority to use force is established by our Constitution and the US Constitution is the ultimate authoritative document that all persons of legal authority in the United States must abide by.

LaVoy Finicum

LaVoy Finicum

            As a retired police officer the question as to when a police officer can use lethal force is somewhat unencumbered and simple. Albeit there are words that may be difficult to define like the word “fear” and may different for each person.  In the past the word “reasonable” comes into play. Basically the only time a police officer is unquestionably authorized to use lethal force is to protect the life of himself or another.  The law does not say he must use lethal force, but he/she is authorized to use lethal force .  The same authority to use of lethal force has also been bestowed on non law enforcement civilians in the United States and in fact is a part of some State Laws.

            When I first became a police officer and in training there was a state law that bestowed the use of lethal force in one other incident.  This law was referred to as the “Fleeing Felon” law. (4th Amendment to the Constitution)  This law gave the police officer authority to shoot a fleeing suspect, even shooting him in the back” if he was fleeing custody and it was known that a felony had been committed.  Many times police officers have relied on this type of law to justify police shootings.    The Federal Court of Appeals said: The use of deadly force against a subject is the most intrusive type of seizure possible, because it deprives the suspect of his life, and White held that the state failed to present evidence that its interest in shooting unarmed fleeing suspects outweighs the suspect’s interest in his own survival.”  The “Fleeing Felon” justification for killing is generally no longer acceptable.

            In the case of LaVoy Finicum we see the following probable violations of Federal law and the US Constitution.

  1.  Was LaVoy Finicum a threat to someone’s life, to include any of the police who tried to stop him?

              Some have said that Finicum attempted to run over an officer with his vehicle.  True or not this not relevant in this case. Finicum was out of his vehicle when killed.  He was not a threat to anyone using his vehicle at this particular time during the incident.  You cannot kill a suspect because of a previous threat. The threat to   take a life must be current and clearly present.

                Did LaVoy point a gun as if to shoot a policeman?  The aerial videos do not suggest that he did.  Some have  said that his right hand went for his trousers or waist band as if to grab a gun.  Whether or not he had a gun  in his possession has not been established but in the truest definition of the law, lethal force is only justi-fied if a gun is actually pointed at a policeman or someone else and thus is a threat to take a life.

               No gun pointed no threat. The law is specific there must be a threat and an assumption that a gun exists is  not in itself a threat to take a life. Placing a hand in a pocket to retrieve something is not a threat to take a         life.

            In the opinion of Codefore Publishing, unless there is proof that LaVoy Finicum actually pointed a gun at someone his killing was illegal whether  done by the police or anyone else.

            An additional concern in this incident is the possibility that there were other Federal police or military persons who were either present or participated in the actual shooting of LaVoy Finicum.  This is a question of jurisdiction.  Our Constitution was formulated and ratified with the idea that the Federal Government is not authorized to impose unjust laws and use of force upon the Citizens of the United States.  The fact that Finicum and others are occupying a building that is designated Federal land does not bestow on the United States Government the same policing and use of force authority as granted to a State or Local police officer.   According to the below laws the Federal Government is only mandated to “protect” Federal property and certainly protecting property cannot in any stretch of the imagination include killing a person.  It is unknown whether or not Finicum or the others were damaging the property. If not, It is questionable if the Federal Government presence was there to protect the property was lawful.

BLM Director Neil Dornze

BLM Director Neil Dornze

            One other possible reason for the presence of the Federal Government is to stop an insurrection at the request of the State of Oregon.  There is some indication that the Governor of Oregon requested the presence of the Federal Government.  We would ask why was this request made?  There is no known evidence that it was anything other than a peaceful protest.  There are many questions to be asked that do not  involve the use of lethal force but there are actions that facilitated and or enabled  the ultimate shooting of LaVoy Finicum. One important question is why was a roadblock set up to stop the Finicum vehicle. He was attempting to leave the Federal property.  Is that not what the Federal and State governments wanted them to do?  If he had violated some crime, why a road block?  What happened to obtaining an arrest warrant ,as required by the constitution, for any crimes committed?  There is a witnesses statement that when Finicum’s vehicle stopped, the police or whoever these people were, began to shoot at them. What law gave them the authority to do that?  Was LaVoy Finicum entitled to defend himself?  If we, as a country stand by without demanding justification for the actions of those who killed LaVoy Finicum then we do not deserve the freedoms that were granted us in our Constitution. If there has ever been the need for a Federal Grand Jury the Finicum killing is one of them.

The 14th Amendment Article XIV 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws.

           In the case of the Military Use of Force against US Citizens The Constitution of the United States, laws, regulations, policies and other legal issues limit the use of Federal Military personnel in domestic support operations.  Any Army involvement in civil disturbance operations involves many legal issues requiring comprehensive legal reviews. However, Federal forces are authorized for use in civil disturbance operations under certain circumstances.  The Constitution of the United States provides two exceptions for which the Posse Comitatus Act

The Posse Comitatus Act, 18 U.S. Code, Section 1385, an original intent of which was to end the use of federal troops to police state elections in former Confederate states, proscribes the role of the Army and Air Force in executing civil laws and states: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a Posse Comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

             These exceptions are based upon the inherent right of the U.S. government to ensure the preservation of public order and to carry out governmental operations within its territorial limits by force if necessary. These two exceptions are:

            Emergency Authority:

            1. A sudden and unexpected civil disturbance, disaster, or calamity may seriously endanger life and property and disrupt normal governmental functions to such an extent that local authorities cannot control the situation. At such times, the Federal Government may use military force to prevent the loss of life or wanton destruction of property and to restore government functions and public order. In these circumstances Federal Military Commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale unexpected civil disturbances. (did President Obama authorize Federal involvement?)

  1. Protection of Federal Property and functions

            When the need for the protection of Federal Property or Federal  Functions exists, and duly constituted local authorities are unable to, or decline to provide adequate protection, federal action, including the use of military forces, is authorized.

            2-9 Laws passed y the U.S. congress include four exceptions to the Posse Comitatus Act. With the first three laws discussed below:

(10 USC 331-333) there is a prerequisite that the President must take personal action, including the  issuance of a proclamation calling upon insurgents to disperse and retire peaceably within a limited time. The four exceptions based on law are.

10 USC 331When a state is unable to control domestic violence and they have requested federal assistance, the use of militia or Armed Forces is authorized.  The Military’s use of force is as described in their individual “Rules of Engagement”.

Oregon Governor Kate Brown

Oregon Governor Kate Brown

10 USC 332 When ordinary enforcement means are unworkable due to unlawful obstructions or rebellion against the authority of the United States, use of the Militia or Armed Forces is authorized.

10 USC 333. When a state cannot or will not protect the constitutional rights of the citizens due to domestic violence or conspiracy to hinder execution of State or Federal law, the use of the militia or Armed Forces is authorized.

House Joint Resolution 1292  This resolution directs all departments of the U.S. government, upon request of the Secret Service, to assist in carrying out its statutory duties to protect government officials and major candidates from physical harm.

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