Nashville Lawyer Blog

Darren T. Ring, a 35-year-old resident of the City of Waverly, has had a federal civil rights lawsuit filed on his behalf in response to an alleged instance of police brutality, which I reported on in the July 2011 article "Police Beating Caught on Tape." Ring is represented by attorney David Raybin, a distinguished member of the Nashville law firm Hollins, Raybin and Weissman, who has filed suit against Humphreys County, the City of Waverly, Humphreys County Sheriff Chris Davis, Humphreys County deputies Timothy Hedge, James P. McCord, and James B. Lee, as well as Waverly police officers Joseph Parnell and Kinta Bell. Moreover, Rayin alleges that on January 23, 2011, the actions of Sheriff Davis, his deputies and the Waverly police "amounted to excessive force and were unlawful, shocking to the conscience and unconstitutional."

The complaint spans a stunning 44 pages, including a full transcript of the audio from a police dash camera, in addition to the camera's video. In the video, four officers are seen repetitively punching and kicking Ring, as he lay half naked and restrained on the ground, striking him with police batons, and even shocking him with a Taser. Although, Ring's ribs were fractured, one of his lungs punctured, and his body covered with bruises and other signs of attack, medical care was delayed until the following morning. It is further alleged that the assault continued after Ring was incarcerated with Davis pushing Ring's head into the cell wall, in addition to another deputy using a Taser on Ring in his cell while he was cuffed and shackled on the floor of his jail cell.

The suit further seeks punitive damages against the officers involved, as well as "those damages to which Ring may appear to be entitled to by proof submitted in the case for his physical and mental pain and suffering both past and future, loss of enjoyment of life, and the violation of his rights guaranteed to him" by the Constitution. As of September 2011, deputies Hedge, McCord and Lee have been fired, in addition to one of the Waverly Police officers involved resigning. County Mayor Jessie Wallace has since stated the firings were due to 20 percent of the county's officers being paid at home while the county was accumulating sizeable overtime. Although the sheriff has publicly claimed the actions taken were consistent with the departments training, it will be up to a jury to decide if the training is in fact consistent with the Constitution.

Sources
Federal lawsuit filed in videotaped deputies beating

Lawsuit filed on behalf of beaten, tased Humphreys Co. man

Humphreys man files suit, says sheriff, deputies beat him

TN lawsuit accuses Humphreys County officers of second beating

Darren T. Ring vs. Humphreys County Tennessee; City of Waverly, Tennessee; Sheriff Chris Davis; Deputy Timothy Hedge; Deputy James P. McCord; Deputy James B. Lee; Deputy Joseph B. Lee; Officer Joseph Parnell; Officer Kinta Bell

Posted By: Eston Vance Whiteside

Inmates that receive poor medical care for Diabetes while incarcerated have protections under State and Federal law. Inmates may bring a claim under 42 U.S.C. § 1983 if they can establish that their constitutional rights were violated by guards or medical staff. The most common constitutional amendment implicated by inmates with diabetes is the Eighth Amendment, which prohibits cruel and unusual punishment including inadequate medical care. Inmates with diabetes may also bring claims against state and municipal prisons and jails under Title II of the Americans with Disabilities Act (ADA). Lastly, in prisons and jails that receive federal funding, inmates with diabetes may bring claims under Section 504 of the Rehabilitation Act (504).

If you or a loved one of yours has diabetes and received improper medical care while detatined in a Tennessee county, state, or federal prison, you should contact an attorney to protect your legal rights. David Raybin or Vince Wyatt may be reached at 615.256.6666

Second Amendment advocates have been "up in arms" over a recent case that has resulted in a conflict between the constitutional supremacy of the pardon and the Tennessee lawmakers responsible for statutorily restricting the rights of felons. The case involves David Scott Blackwell, a Franklin man who received a felony drug possession in 1989 when he sold cocaine to an undercover police officer while living in Atlanta. As a result of his arrest, Blackwell would go on to serve five years in prison in addition to probation, which he would successfully complete. While incarcerated, he completed a bachelor's degree in nursing, as well as petitioning the Georgia Board of Pardons and Paroles. On August 11, 2003, Blackwell was granted a full pardon, a portion of which read "All civil and political rights, including the right to receive, possess, or transport in commerce a firearm ... are hereby restored." However, shortly after moving to Tennessee he encountered a problem.

Blackwell wanted to take his son hunting one weekend and was denied while trying to purchase a .22 rifle for his son. Two years of unsuccessful communication with the Tennessee Bureau of Investigation and the Attorney General's office led Blackwell to file a lawsuit against the state of Tennessee, Governor Phil Bredesen, and Attorney General Bob Cooper. Blackwell argues that his right to bear arms was restored upon his reception of the Georgia pardon. Also supporting Blackwell's position are various Second Amendment Advocates, who have historically refrained from voicing support for the rights of some felons to possess firearms. More notably, the Tennessee Firearms Association showed their support for Blackwell by filing a brief in the lawsuit, the first time the Association has done so in 16 years. Nashville attorney John Harris, who also serves as the volunteer executive director for the Tennessee Firearms Association, illustrated the significant issue being considered. "This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?"

Although Blackwell's position was dismissed by the Davidson County Chancery Court, the case has been appealed and is under consideration by the Tennessee Court of Appeals. In preparation on the trial, Blackwell has retained the counsel of David Raybin, a distinguished member of the Nashville-based law firm Hollins, Raybin & Weissman, P.C. "The pardon restores constitutional rights, that's what a pardon does," stressed Raybin. "Therefore, it restores his right to a firearm. That's it, in its simplest terms." Moreover, Raybin maintains that the power to pardon and reinstate a felon's rights is preserved in a state's constitution. Furthermore, when a state statute conflicts with such a right, the constitution should prevail. Blackwell's full argument and brief can be found here.

Conversely, the state insists that the challenged statutory authority, which makes it unlawful for a felon to possess a firearm, does not exempt pardoned felons whose rights have been restored. Likewise, the Tennessee Attorney General's Office stated that a correlation between guns and drugs makes it reasonable for Tennessee legislators to expect the possibility of felony drug offenders, pardoned or not, to misuse firearms in the future. Another supporting factor for the state is a similar case tried in 2002, where the Tennessee Supreme Court held that a violent felon whose rights had been restored was forbidden to possess a firearm. Attorneys for the state asserted that, "the constitutional right to possess a firearm is not absolute." A full summary of the state's argument and their brief can be found here.

However, a recent U.S. Supreme Court Decision, District of Columbia et al. v. Heller, may prove to be more essential to resolving this case. In Heller, the Court ruled that the Second Amendment declares an individual, constitutional right to firearm possession for all citizens. Raybin asserts that a felon's Second Amendment rights are included in the restoration of their civil rights. Similarly, Raybin believes the Blackwell case will mark the first use of the Heller decision in Tennessee. The Tennessee Court of Appeals ruling on Blackwell is expected sometime mid-October.

Sources:
Should pardoned felons have gun rights?

Convicted Felon Sues State Over Right To Bear Arms

U.S. Constitution: Second Amendment

District of Columbia et al. v. Heller, 554 U.S. 570 (2008)

Verified Complaint for Declaratory Relief: Blackwell Motion in Chancery Court

Brief of the State

Brief on behalf of Amicus TN Firearms Association, Inc.

Brief of David Blackwell

Posted By Eston Vance Whiteside

A new Tennessee law went into effect July 1, 2011 for the purpose of relaxing the requirements for search warrants. Courts in Tennessee have long upheld the simple yet strict rules for obtaining and executing search warrants in criminal cases. Such rules are in place to safeguard an individual's rights during a criminal investigation. However, law enforcement officials have been expressing a major concern with the search warrant requirements. Their concern is that minor errors, such as an innocent typo, could allow criminals to avoid serious charges due to the exclusionary rule. The exclusionary rule disallows the use any evidence obtained when an individual's constitutional rights are violated and therefore cannot be used by prosecutors in a criminal trial.

Victor Torry Johnson, the Nashville District Attorney General, contends the Exclusionary Rule Reform Act is necessary and allows for a more practical approach to search warrants. He further stressed his concern that clerical errors or mistakes that are completely unrelated to the underlying probable cause could invalidate otherwise legitimate evidence. A case that highlights the effects of the exclusionary rule occurred in 2007 when a Tennessee man received a 29-year prison sentence for possession of "bricks" of marijuana, drug paraphernalia, and 400 grams of cocaine. However, upon the discovery of a typo in the search warrant in the court of appeals, the evidence was thrown out and the man's conviction was reversed.

The Exclusionary Rule Reform Act (HB 401) is the new law adopted by the Tennessee legislature and is aimed at loosening the state's exclusionary rule. The new legislation allows evidence acquired with an erroneous search warrant to be admissible in a criminal prosecution, so long as the errors are a result of a "good faith mistake or technical violation." Therefore, evidence is not admitted notwithstanding the degree of error in the search warrant. Likewise, the evidence must be permissible in court and accessible to the prosecution in all other regards.

David Raybin, a criminal defense attorney in Nashville, Tennessee for Hollins, Raybin and Weissman, sat on the first statewide judicial rules committee and acknowledges the consequences for breaking the rules. Raybin explained how a simple mistake such a failing to knock on someone's door before executing a search warrant could result in a judge suppressing all the evidence acquired from a warrant. "You have these simple rules, and they have simple consequences." Raybin expects other states to develop similar laws regarding search warrants and suggests that such a trend may reveal a lessening of basic fundamental values. Siding with Raybin is Jeffrey Henry, the executive director of the Tennessee District Public Defenders Conference. Henry argues that the new law decreases the degree to which individual rights are recognized and will cause many people to question the judicial system.

Additionally, Tennessee is not the only state empowering prosecutors. A California bill is developing that in cases of suspected movie and music pirating would allow police to perform searches without a warrant. Similarly, a Florida law aimed at regulating pain clinics that overprescribe medication would also allow law enforcement officials to perform searches of clinic records without a warrant. Moreover, a recent U.S. Supreme Court opinion gave law enforcement officials throughout the U.S. more freedom to search individual residences without a warrant. However, despite these similar regulations, it remains uncertain what effect the new legislation will have on criminal proceedings in Tennessee. It will also continue to be important that attorneys examine cases where evidence is produced with a search warrant to determine if a genuine and material issue exists in regard to a warrant error.

Sources
The Exclusionary Rule Reform Act (HB 401)

Nashville Criminal Attorney Explains: New Search Warrant Law in Tennessee

New Tennessee law will relax restrictions for search warrants

TN Eases Process for Search Warrants

Tenn. Eases requirements for search warrants

Posted By: Eston Vance Whiteside

David Raybin, a prominent member of Hollins, Raybin and Weissman, will be handling the civil rights lawsuit of a man critically beaten by members of the Humphreys County Sheriff's Department. Darrin Ring, 35, alleges the use of excessive force by law enforcement officials during a response to a shot fired call. A camera on one of the officer's dashboard recorded the entire incident. The video reveals four officers repetitively punching and kicking Ring, as he lay half naked on the ground, striking him with police batons, and even shocking him with a Taser. Ring's ribs were fractured, one of his lungs punctured, and his body covered with bruises and other signs of attack.

With over 600 arrest-related deaths reported each year in the U.S. and an estimated 1 million incidents requiring police officers to use/threaten to use force, it is clear law enforcement officers must take every step to protect themselves and others. Electronic control weapons (ECWs), such as Tasers, are now commonly carried by officers and are regarded as a non-deadly alternative use of force. A recent study by the National Institute of Justice concluded that when used properly, the risk of death in an ECW related event is less than 1%.

However, the use of ECWs is not risk free and can result in serious injury or death. While it remains unclear what the causation factors are, there are multiple elements that appear closely linked to ECW fatalities. Factors such as: repeated and multiple shocks, shocking that last for longer than 15 seconds (cumulative or consecutive), and the concurrent use of more than one ECW. Moreover, the Office of Community Oriented Policing Services (COPS) released the Electronic Control Weapon Guidelines in 2011, in which they concluded that ECWs should not be used on suspects in handcuffs unless absolutely necessary to prevent them from causing serious bodily injury to themselves or others and if lesser methods of control have been unsuccessful. Likewise, COPS recommended that regardless of the duration of exposure, the medical condition of an individual exposed to an ECW should be constantly monitored during and after contact.

Furthermore, the International Association of Chiefs of Police published a "Model Policy," in April 2010, in an effort to provide officers with suggestions for the proper use ECWs. They state it is forbidden to use ECWs in a disciplinary or coercive manner or on a handcuffed/secured prisoner, unless the prisoner is overtly assaultive and cannot be reasonably dealt with in any other less intrusive fashion. Additionally, they state that officers should be aware that during or immediately following exposure, a subject may be unable to respond to commands.

It is likely that such publications will be taken into consideration upon reviewing the case. For now, the officers under investigation have not been suspended and Ring remains in jail in lieu of bond. He is charged with resisting arrest and three counts of aggravated assault on an officer. Meanwhile, Jake Lockert has been retained as Ring's public defender and has filed a motion to dismiss all charges. A Humphreys County judge will announce a decision in the upcoming weeks. Additionally, Lockert forwarded the video to the Tennessee Bureau of Investigation and they have announced their investigation into the event.

Sources
TBI investigates allegations of excessive force caught on tape

Lawsuit considered in deputy beating of suspect

Man in confrontation with Humphreys sheriff's deputies seeks release from jail

Alpert Taser Report

Best Practices in Taser Targeting

Posted By: Eston Vance Whiteside

Freedom of religion is a constitutionally enjoyed right; however, recent protest in Murfreesboro, Tennessee has made it unclear how far that right extends. In November of last year, a local congregation of 250 Muslim families purchased a 15-acre lot on the southern edge of town for an estimated $320,000. It has been reported that 95% of the funding for the mosque was raised during a three month campaign in middle Tennessee. The congregation's intention is to build a mosque and a community center on the lot. During previous years, families would pray at the Islamic Center of Murfreesboro, which was frequently overcrowded forcing them to gather in the parking lot. The new mosque and community center would remedy this problem and provide the extra room needed.

Despite a green light by local authorities and the support of mixed local religious groups, the building of the mosque has been met with great protest from conservative activists. Events escalated Wednesday when protestors and counter-protestors convened at the courthouse. The gathering resulted in vocal protests, various signs bearing anti-mosque language, as well as the destruction of construction equipment. The protestors contend fears of Islamic radicalism, while those in support of the mosque assert religious intolerance.

Kevin Fisher, the leader of the protest, stated his chief concern is the Islamic center's decision to bury a body, absent a casket or embalming, on the site. Although the state has approved the proposed burial, Fisher fears water and soil contamination will be unavoidable. Likewise, he also contends that Bradyville Pike, a nearby highway which he considers very dangerous, will be subject to an unmanageable level of traffic. The Rutherford County Regional Planning Commission Director, Doug Demosi, has reassured that no state regulations have been broken and that no future burials have been allowed. Furthermore, Demosi has stated that he doesn't believe the mosque's influence on traffic will be as serious as Fisher believes.

Claire Rogers, the front woman for the counter-protest, alleges these environmental and safety concerns are merely fronts for the real reason behind the protest, religious intolerance. On her group's Facebook page, Rogers calls for the community to come together to resist these xenophobic urges and to assist the Muslim people in practicing their religion in any manner they please. Republican Congressional candidate Lou Ann Zelenik has announced her concern that the planning commission improperly investigated the center's ties and sources of funding, resulting in possible illegal connections being overlooked. This belief is supported by the discovery of a board member of the Islamic center who posted hate speech and support for the terrorist group Hamas on his MySpace page. Acting on this concern, Zelenik has instigated a scrupulous investigation of individuals who were involved with the mosque's funding, in addition to checking the legitimacy of any and all ties the Islamic center may have. Plans to build are expected to resume upon completion of the investigation.

Sources
A Fight About a Mosque in the Middle of Tennessee

Middle Tennessee Divided Over Proposed Islamic Center

Mosque Legal Challenge Gets Heated

Posted by: Eston Vance Whiteside

Lead counsel, David Raybin was interviewed by Nashville media in response to statements made by a Tennessee Department of Corrections' spokesperson who said "there were no violations of policy" regarding the inmate's cell extraction. Prison officials had previously reported that the 33 year old Toll had died of natural causes, but the State Medical Examiner ruled the death a homicide. The inmate was believed to have died from "suffocation" and "asphyxia during physical restraint." The Complaint alleges Civil Rights violations actionable under Section 1983. A copy of the Complaint appears here. Complaint TOLL.pdf

The Complaint alleges, in part:
"The Cell Extraction Team Defendants, clad in black riot gear-style uniforms and armed with Taser guns and a Taser shield, opened Charles Toll's cell, shackled him, and dragged him out with his face on the ground. Toll repeatedly told the Cell Extraction Team Defendants that he could not breathe while they were holding him down with the Taser shield. Despite being told by Toll that he could not breathe, the Cell Extraction Team Defendants did not relent but instead increased the ferocity of their sadistic attack. The Cell Extraction Team Defendants used a Taser devise to repeatedly shock Toll with electricity. They then dragged him facedown out of the pod and into the prison "yard," with a deliberate intent to escape the view of other inmates. The Cell Extraction Team Defendants sadistically and maliciously pressed a Taser shield on Charles Toll's back for more than ten minutes while several members sat on the Taser shield, electrocuting and suffocating him. As a result of the Cell Extraction Team Defendants sitting on him for approximately ten minutes and giving him Taser shocks, Charles Toll exhibited audible gasping and labored, irregular breathing for several minutes before becoming unresponsive. As a result of the assault by the Cell Extraction Team Defendants, Charles Toll sustained numerous abrasions to his face, knees, and wrists, and ultimately suffered an excruciating death."