If you want to understand not just the headlines but the gritty realities of law, training, and police accountability, this episode is a must-listen.

Welcome back to Lawyer Talk! In this special panel episode, “Minnesota ICE,” Steve Palmer brings together a powerhouse group of voices to dig deep into the complexities of police use of force, especially when officers are confronted with split-second decisions involving moving vehicles. Joining Steve Palmer at the table are veteran law enforcement officer Eric Delbert, renowned police defense attorney Mark Collins, and civil rights litigator Dave Goldstein—each bringing decades of experience, unique perspectives, and real-world insights to an issue captivating national attention.

The discussion kicks off with reflections on high-profile cases, including the recent Minnesota shooting involving a federal ICE agent and the local Franklin County officer Connor Grubb, whose prosecution highlighted how perspectives can shift based on the facts known to police at the time of a critical incident. The group navigates the legal frameworks that govern use of force, the importance of training, the shifting public attitudes toward police authority, and the ways grand juries and media narratives influence outcomes before all the facts are in.

You will hear candid opinions about grand jury secrecy, the impact of recent protests on police morale and recruitment, and robust debate over qualified immunity for officers and public officials. Throughout the episode, the panel emphasizes the need for thorough investigations, transparency, and legal guidance, all while maintaining a commitment to justice—no matter who is sitting at the defense or the prosecution table.

Pull up a seat and join the conversation as Lawyer Talk takes you beyond the soundbites and into the heart of the issues shaping law enforcement and civil rights today.

Top 3 takeaways for fellow legal professionals, law enforcement, and anyone passionate about justice:

1. Officers’ Use of Force is Complex: The legal standard for police use of deadly force is built around the reasonable officer standard—not civilian self-defense. It’s shaped by landmark cases like Graham v. Connor, demanding juries step into an officer’s shoes, considering split-second perceptions and training, not just “what would you do?”
2. Obey Now, Challenge Later: The panel reinforced—no matter how tense or unjust a police interaction may feel—comply in the moment, challenge in court. Civil rights and justice are far better protected and remedied after the fact, rather than escalating roadside confrontations.
3. The Need for Clarity & Transparency: Ohio (and the nation) desperately needs clearer jury instructions and legal guidance in police shooting cases. As Mark Collins pointed out, inconsistency across courts and shifting grand jury protocols put officers, victims, and the justice process on unsteady ground. Transparent, thorough investigations and communication with the public can help restore trust.

Moments

00:00 Commitment to Truth and Accountability

08:48 "Officer's Response to Threat"

13:29 Reasonable Officer Perspective Explained

20:14 "Compliance with Police Orders"

23:39 "Comply Now, Address Later"

26:36 Police Recruitment and Accountability Challenges

36:20 Polarized Reactions to Minnesota Case

41:23 Body Cam Perspective Sparks Debate

50:33 "Unexplained Noise in Basement"

56:26 Assessing Threats and Justification

01:02:12 "Justice, Pressure, and Settlements"

01:06:29 "1890 Case: Federal Immunity Standard"

01:12:25 "Concerns Over Abolishing Qualified Immunity"

01:18:02 "De-escalation and Accountability Needed"

01:18:53 "Lawyer Talk Podcast Recap"

Submit your questions to www.lawyertalkpodcast.com.

Recorded at Channel 511.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Palmer Legal Defense.

Copyright 2026 Stephen E. Palmer - Attorney At Law

All right, here we are, Steve Palmer here, Lawyer Talk off the record on the air. You can check us out at lawyertalkpodcast.com obviously the set is different here. We're going to do something a little bit different today. I've put together a panel discussion to talk about specific legal and actually law enforcement type issues surrounding police officers, use of force, shootings while people are driving toward police officers, particularly for obvious reasons. But let me start and shut up and introduce the guest. I have Eric Delbert, Mark Collins, Dave Goldstein. Eric, I'll just start with you. Why don't you give us a quick bio or background and then we'll go.

Over to Mark Sure. Yeah. I've been in law enforcement for 32 years now, always in a part time capacity and have done that for a long, long time. In the most recent time, last 15 years, we own and operate LEPD firearms and range. So we kind of see things from both sides of the fence and kind of have a different perspective on the selling of the firearms and handling of that aspect and the law enforcement side as well.

MARK I started my legal career as a young prosecutor for Michael Miller, left the Prosecutor's office in 93 and went with a labor firm that represented police officers and teachers. I stayed there for about three or four years and then started my own practice in 2000. But that's where I formed my relationship, representing police officers and the little nuances of helping them and also cross examining them on normal criminal cases. So I have a criminal practice with four other attorneys. I specialize in federal work, state court as well as municipal. And I represent most of the police officers in the southern portion of Ohio, especially when there's police shootings. I have five current clients who have been charged or had trials or been found not guilty or guilty with regards to police lethal shoots, as well as I've represented police officers in other parts of the state.

Yeah. And anybody who knows lawyers in Columbus, Ohio or in this area, they've seen you on TV representing the police officers. I've done criminal defense work for probably not quite as long. I started in 95, so I've done nothing but criminal defense. And you know, hats off, you've taken on that area of practice and developed a phenomenal lawyer, great reputation.

DAVE well, like Mark, we've known each other for about 30 years. I started my career in the Franklin county prosecutor's office as well, where I prosecuted criminal cases, including white collar crimes. After I left that office, I went to a boutique firm and learned some civil litigation. And then I Started my own firm about 25 years ago where we concentrate in basically civil rights actions, insurance defense, personal injury, anything involving civil litigation. My firm represents police officers. We also when officers in our opinion violate individuals constitutional rights, we also sue police officers. So I have a familiarity from the civil side what we're going to discuss today.

Yeah, and I've known Dave again probably since 95, you know, both as a prosecutor and when I have a client who as a criminal defense attorney, if I have a client who I feel the police have gone too far, there's a civil rights claim, I send it to you and help you screen it. And you know, people might be asking how can we all possibly sit at the same table? You would think like well Mark represents police officers, but there's a police officer and you represent criminal defense clients.

Absolutely.

And cross examine cops and certainly don't hesitate to expose when they screw up.

Not at all. I'd probably say 80% of my practice is actually representing everyday clients are charged with criminal offenses ranging from the death penalty through openvis and stuff like that. And when you come across police work and when it's good, it's good, you tell them. When it's not good, you make it an issue in court and then hopefully the sergeant and the lieutenant step in and help the officers with regards to how to learn in that situation.

Yeah. And then you, Dave, obviously you're doing but you're not only representing police officers but suing police officers.

I do both and you know, it's not ever caused an issue for me. Sort of like Mark, you know, when I'm suing a police officer you have to get experts and I'll consult my officers who either I've known very well or I've represented and they're usually on board and they'll tell me yes, this officer obviously screwed up and this is what you should do. And. Or they'll tell me the officer did not screw up and I won't take the case.

And finally Eric, you're sitting over there as the lone non lawyer. Congratulations by the way. How dare you sit with these criminal defense lawyers. Because you and I have had plenty of talks on your show, on my show and other before and we've talked about this. But the relationship between criminal defense lawyers and what you do give us some thoughts on that.

As everyone was going through talking about history and stuff. I think the one thing that connects us all is the commitment to the truth and the commitment to wanting to do right. And if someone did something wrong, whether it be a Law enforcement officer or civilian or whatever, then we need to hold them accountable, no matter what profession you're in. And I think you're seeing that here, across everyone here is that commitment to the truth and have the facts. No one here has set out to get anyone or to make a point, but it's always that commitment to the truth. And I think that's why we can all sit here and talk objectively about cases and, you know, law enforcement today and so forth. So that's why, I mean, I'm glad to be a part of it. It's great to be sitting here with the minds that we have.

And I'll say one more thing about it. My late, great mentor, you guys all know him, Bill Meeks, a phenomenal lawyer, nationally known criminal defense lawyer, argued in the United States Supreme Court, Burkamer versus McCarty. And one of the early things he said to me is we represent clients, not causes. And you know, Dave, on your side, you're doing both sides of it, and Mark, you're doing both sides of it. And I think it keeps me grounded. When I represent a client, it's got a problem, I go deal with that problem. And I think all too often, and maybe this will segue into what we want to talk about. You get talking heads on both sides, media making, selling news, I guess, about shootings like the one in Minnesota.

Or we'll talk about a client of Mark's, Connor Grubb. And I think you lose perspective that way and you don't see both sides of it. And, you know, one of the things we're all going to promise here is not to have a political debate, because I don't think that, you know, as lawyers, I just want to. I want to. I want to smoke out what we all deal with, what the legal standards are and. And see if we can get some truth out of that. So, look, Mark, you know, before we even talk about Minnesota, let's talk a little bit about Connor Grubb. I know that was a big case here in Columbus.

You represented a police officer. He was acquitted. But give us some facts of that, and I think that'll give us a starting point.

Yeah, with Connor Grubb. Connor Grubb was a blended township officer. He was a former marine, served country, honorably married, two small children. Conor was in the parking lot that day of Kroger. He got called there to help someone unlock their car. They had locked their keys in their car.

He was only there by.

Only there in that situation by coincidence. And his sergeant actually was There as well. His sergeant came to help the lady unlock her car. And they used different methods. Well, then what's going on at Kroger and I'm sure other supermarkets is there's these theft rings and people groups work in tandem to go in and steal liquor and steal other items, laundry detergent and things like that. So while they were helping, an employee came out of the Kroger and said, hey, that lady over there just stole a bunch of liquor and was following her to the car. And the car was two cars in front of where they were helping this older lady with her keys. And so the sergeant went over and saw the person get in the car.

And the sergeant gave orders in command, said, hey, get out of the car. Don't get in the car. She got in the car, locked it. Please get out of the car, ma', am, we have to talk to you. Why? Well, they're saying that you stole something. So the car is facing this. The sergeant gets on this side and the employees over here. My client Connor, is still helping the older lady.

Then he hears it being escalated. He hears banging on the window, and he hears a sergeant who he's worked with for three years, every day and every shift say his voice get louder and louder and louder, get out of the car. Get out of the car. Ordering her, I'm telling you to get out of the car. Banging on the window. He was actually trying to break it with a device to break the window to stop her from leaving. The car was parked, backed into a handicap spot. There was no handicap sticker.

There was no license plate on there. There was tinted window. So there was no identifiable aspects of that. Both the sergeant as well as my client noticed that. So when my client comes over, he's observing and listening to this. And so his thought process is, where should I go? He's what's called the COVID officer. The contact officer is a sergeant who's talking to the lady in the car. And so at this point in time, he's not going to stay behind because staying behind the car doesn't help.

He's not going to go next to the sergeant because that's useless on the other side by the civilian, that could cause a crossfire. So he's not going to go there. So the car was stationary. It wasn't in gear. So he stood in front of the car and he gave an order, get out of the car. Get out of the car. She would not. It was escalating more.

The car starts or, you know, maybe in the gear doesn't Know it's in a gear, but then he draws his gun out and he did that to de escalate the situation. Most law enforcement officers have drawn their weapon and given orders and 99.9% of the time the individuals complied. This person did not. So at this point in time, Connor has his gun out, get out of the car, get out of the car. All of a sudden the car comes towards him. At that point in time, the car hit him right beneath the shins. So what went through his mind was he perceived an imminent deadly threat or serious physical harm threat and he discharged one shot towards where he's trained, towards the center of the person. So that aspect then he got hit to the side, came off.

They both chased the car and, and the car crashed kind of into the Kroger. And then they realized when they pulled her out that she had been shot. He immediately ran as fast as he could to his car to get the medical thing. He provided a chest seal, doing everything he's supposed to and giving care, trying to revive. And that's the basic concept. So the law in these cases, Steve says you are to analyze the situation from the perspective of the officer at the time, what he or she observed and knew. So that's what Conor Grubb knew at the time. He knew there was a theft.

He knew his sergeant was trying to stop the person from leaving. He gave many orders. So did Conor Grubb. And at that point in time, he took tactical decision making steps in order to stop the person from fleeing or going. Now, other concepts he didn't know was there was another group of girls and another car. They had stolen the same thing. So two cars were working that Kroger that day. They parked the same way.

They hid their license plate and everything like that. So in the person's mind in the car, there's one thing, if she gets away, they're never going to catch her because they didn't catch the other people. Because there's no identifying factors. There's videos inside the store of them stealing it. There's videos of them putting it in. They go through the alarms, the alarms come off and they just keep going. Now, my client didn't know that. So the analysis at trial for the jury was what did he know? And then there's a two part process based on the totality of circumstances.

Did he have a subjective belief of serious physical injury or harm or death? And then the result of his decision to use tactical force was that reasonable based on a reasonable officer stepping into his shoes, knowing what he knew at the time. And the key, Steve, is not could have, should have, would have, because the case law precludes that. But could a reasonable officer had the same belief of the need to use deadly force in that situation? So that's the standard.

It's a little bit like self defense in a criminal case, but not as it's an easier burden for the defense, I guess is maybe the way to say it.

Well, it's a little bit different. The state still has to prove beyond a reasonable doubt all of their elements. If they do, then it shifts, the burden then shifts to the defense. And a justification defense is more likely than not standard. But it's ours. Yes, preponderance of the evidence and it's our burden. And the two components, subjective belief of serious physical harm. Normally we're able to prove that because he believed he was going to get run over and all the different things that went through his mind.

And the second component is an objective analysis. And that's where the experts come in. The experts review everything that the officer knew or the totality of the situation and determine do they believe that the officer acted reasonably and within the discretion of national training standards and things of that nature. But the issue is if they follow the law. It's pretty straightforward. But the concept is the suspect in the car in this situation, was it her intent to hit him? Hey, she was just trying to get away. Was it her intent to harm the officer? The wheel was turned, the wheels were turned to the right. So that meant she was trying to go away from him.

Okay. And so what happens is the issues get clouded by all the other perspectives. The perspective of a civilian, the perspective of her intent, of what she was going to do. And unfortunately, the case law, none of that matters. And the issue we have in Ohio, Steve, is that we don't have Ohio jury instructions on justification. Every time you have one of these, you have to create your own instructions.

I read them, I went and pulled them up.

And every judge does different instructions. Whether it was Judge McIntosh on a police shooting case, or Judge Young or federal judges, they're entitled to do their own jury instructions. And it's case specific. So the reason we have Graham v. Connor as the Supreme Court case and then Ohio, the state v. White is because that allows officers to be trained on, on those parameters and guidelines. And so are you trained properly based on the case law? So those are the. But the fundamental concepts is, hey, geez, she probably didn't intend to harm him or hit him.

But you have to analyze it from the officer's perspective at that point in time and what he or she perceived and what they could have perceived. And the other thing with the law is an officer could be mistaken about a belief or a situational need, but that mistake is okay under the law as long as it was reasonable. So in everyday criminal law, we always look at the ordinary reasonable person standard, and we ask jurors, hey, what would you do in your lives? Use your life experiences to make a determination. This is the only type of case where you substitute a reasonable officer standard. And it's hard for the jurors sometimes to understand that, yeah, your job as.

A lawyer to say, look, it's not just, what would you do? What would an officer do? And Eric's over there chomping at the bed.

What would a reasonable officer do?

It's so, like, from a law enforcement standpoint, like, when this was all going down because we were watching closely, the first thing from, you know, myself and a lot of my fellow officers were looking at, well, first of all, how did the indictment even come about in grand jury, Franklin County? And maybe that's a whole nother topic.

I can address that.

And I mean, that's something that's. That's scary and frustrating, I guess, both at the same time. But the second thing is. And, you know, we were kind of jumping up and down the whole time thinking, graham v. Connor. I mean, this. This seems so cut and dry.

Grant v. Connor is a U.S. supreme Court case that addresses, I think it was a 1983 case that talked about civil liability or the responsibilities, but basically, it's given us the basic framework for the law, the reasonable office.

It gives us the reasonable officer standard. Yes.

And I do. You look at that and, And I guess, you know, we live in that world. So the jury doesn't necessarily. Maybe they're hearing for the first time, but I look at the judge and say, you know, you got to tell them this. Why? I mean, it's. It's. Especially in this case, it seems so obvious. It wasn't, you know, there weren't 10 rounds fired where you could look at that and say, okay, was that objectively reasonable? I mean, everything about it seemed to us, to me, to be that.

And so we were, you know, as you were going through that, I was, you know, we were praying for you because it. Just to get that message across, and with all the other things that were clouding it, you know, well, she didn't intend to do that. Well, you never know her intentions. And unfortunately, that don't. Doesn't matter. It matters what the officer felt at that time, knowing what he or she knew.

And from a. You know, I was obviously following that case because there also is civil ramifications. Not that I'm involved in that. But what's interesting is when that trial is going on, a lot of people ask me, hey, you know, the big thing I kept hearing, she was only shoplifting. She was only shoplifting. And I had to explain people, just as what Mark said is that is irrelevant as to what she was doing. That. That part there is a factor in Graham about, you know, severity of crime, but that's not the severity of the crime.

And Mark can address this. The severity of the crime was using her motor vehicle as a weapon. Am I correct with that? And that's the thing.

So.

And I believe at the criminal trial, when I was watching it, that it seemed to be that there was maybe the prosecutors were trying to sort of more or less argue shoplifting, when that to me, had nothing to do with the case.

Correct. One of the gram factors is you look at the severity of the crime at issue. Okay, if someone's committing a jaywalking or something, an officer can't use force or deadly force or anything like that. However, if someone is using a car and it's going towards a police officer, that becomes a felonious assault. That becomes an attempted murder. In theory, that becomes an assault on a police officer. So that is the serious nature of the offense. You have to take that into account.

And so. But the narrative, like David just said, becomes to what people hear is, well, did she get shot for shop? Did she get shot for shoplifting? And the answer is no, 100% no. She got force was used against her because she became a threat, an imminent threat, when the car came towards the officer who was right in front of it. And so from a law enforcement standpoint and from legal standpoint, it's pretty clear, you think, but it's like, hey, had she just complied? There was 13 chances for her to comply and to file the orders. But again, the narrative goes in there in that the prosecution, and I'm not going to blame any prosecution or anything like that. The first one or two of these tried, when I tried them, I did not really understand the law. You don't understand it?

I didn't. I had to look it up last.

Week, there's no guidance. But when you actually try it, so the prosecutors, when they go, well, geez, you know, Casey Goodson in another case that comes up shortly that we're starting next Week, actually, he was at the dentist. He went to subway. So why would someone who was at the dentist or the subway want to shoot a police officer? None of that matters because the client or the officer didn't know that at the time. Now, you ask a great question, how these things get indicted. That's where the change has to be made. Our legislature has to change the way the grand jury process works with regards to these cases. Traditionally, an expert that was neutral would testify about Graham v.

Connor. So would the administrative judge, but they wouldn't give an opinion. In Connor Grubb's case, a professor named Seth Stoughton from South Carolina who has testified 18 times against police officers and uses of force to. They used him at grand jury. Well, of course he's an opinion witness. Of course he's going to give an opinion. So they start from a premise, and then they put an expert in the grand jury, and the grand jury returns indictment. Now, to me, that's a conflict.

If you're an expert and you're a grand jury, of course they're going to hire you to testify at trial.

And by the way, a grand jury proceeding is secret. So on the defense side, Mark didn't get to say, hey, look, I want to call my expert to refute this, or I want to call Connor himself to refute this. Now, sometimes we get invited as defense lawyers to have our clients or somebody else testify, but ordinarily, it's happening without us knowing.

Absolutely. And we used to. But we had a case initially. We always did that. There was a protocol. Michael Miller had a protocol. Ron o' Brien had a protocol. This is the process that we're going to use you sit down for.

You give a written statement for an officer and by a contract with the union. Then you'd give an interview, and then you'd be invited to testify at the grand jury on Andy Mitchell's case. The individuals in that grand jury, when I got the transcript back, once he got charged, they didn't understand Graham v. Connor and State v. White. And so questions were asked of the grand jurors. Well, why did you. You could have just let her go.

You didn't have to arrest this person for prostitution. You didn't have to take her in even though there was a warrant. And then when you read the questions from the grand jurors, the grand jurors, like, yeah, why couldn't you just let her go and find her another time? And all these things. So it gets so clouded and so all that type of stuff. So then from A defense standpoint, we re engineered it. We're like no more grand jury. We're probably not going to give an interview and even a written statement. We is based on the officer's recollection and they've never seen the discovery, they've never seen the videos.

But it's that person's perspective. But we have to give a written statement because that's how the experts then analyze and be able to determine whether or not something's reasonable.

Well, there's a couple things I want to unpack there and I promised I wasn't going to get political. I'm not. But I'm going to talk about a climate that I think has changed out there in the world because look, we're all about. Eric, I'm not going to ask how old you are, but I think the rest of us are all about the same age.

No, I'm the oldest by far.

But you know, it just seems, maybe this is just my YouTube observations, but there seems to be an attitude that's created out there that people don't have to obey police officers orders. And you know what? I think sometimes that's true. There might not be a lawful order of the police and I'll get to you on this Dave, in a second. But if a police is ordering, when an officer is ordering somebody to do something, like in this case, Connor Grupp, you could ask the same rhetorical question. Had she have just obeyed the order, she wouldn't have been. It might be a little bit an oversimplification. But Eric, I'm curious what you're hearing with boots on the ground police officers these days because I'm seeing videos where people, they refuse to get out of the car, they refuse to give you their ID, they refuse to roll their window down, they refuse to do the basic things that frankly my dad would have like if I got arrested by the cops I would have been in trouble anyway.

Right.

But if I didn't comply with when I was arrested it would have been like don't come home type of trouble.

Unfortunately, it's a culture shift and there are segments of the population who are telling people telling their kids that you can argue there on the side of the road. It's no longer about you're going to get your day in court. You can sit there and you can fight it out on the side of the road. You don't have to do what the officer tells you. And it's leading to these escalations at times. You know we talked about it on our show Recently. And this is, you know, a little bit, you know, it's a little bit of a reach. But I said in my neighborhood, we don't have an issue with officers or with people getting hurt on traffic stops because you comply.

I mean, if the officer tells you to get out of the car, you get out of the car. You know, you're going to have your day in court. That's what I taught my kids, you know. And so I think that message, we're missing it as a society in some of these pockets who are just being told to, hey, go out there and you don't, you keep your window up. And it's, it's escalating these scenarios.

And I've seen it even on like the old joke is on, you get pulled over for a DUI or something, you just crack your window and slide through. It's like, no, no, they can order you out. But Eric, and I'm going to get to Dave on this in a second. What about. Look, I think in the main, police officers generally try to do the right thing. And I think also in the main this. I know 100% they're all human and if you're in court, they'd throw you out. They're all human and they're all subject to the same human frailties that we have.

Right. None of us are perfect. But what about the guy, like, what about the situation where cops orders are unreasonable or the cop is overreaching or the cop is doing something that's overtly violating somebody's civil rights. What would you say to somebody pulled.

Over, I put you on the spot.

But did it for reason.

I think those are exceptions. I mean, I think you're right, by the way. So I think that to have. And I can't imagine what that order would be. That would be to a point where you say, I'm not doing it, you know, And I can't imagine, I don't know what that order would even look like. But I mean, again, it's, it's. You take it to your day in court, you don't sit there on the side of the road and argue it. And you don't.

I mean, there's so much tension now in a traffic stop from when I started to now. And actually I think, I think that the turning point for me was, is 2020, the riots. The riots and stuff like that. After that, I see a distinct difference in how those traffic stops come down and it's people.

Well, and I would say this, and I'm sure Dave, you Would say this like, you can sue. It's a lot better to sue on behalf of somebody who's alive than somebody who's not.

Well.

And I tell, you know, I get a lot of calls from prospective clients who say, you know, this was a situation I was in with law enforcement or some type of government agency. And I go through, you know, whether they have a claim or not. But I instruct, you know, my potential clients, clients. I speak in the community. I say comply with the officer's orders. We can deal with the aftermath of what we're just discussing. If you believe that your civil rights were violated, which again, is a rare instance when it comes to a traffic stop or something like that, just comply with the officer's orders and we will deal with the aftermath. Whether you get criminally charged and then you or Mark represents that individual or then they contact me and we look at a potential civil rights violation, or even if it's not a civil rights violation, we can then go to the agency, we can file a complaint with Internal affairs and make sure that if that officer did something that is wrong against policy, that that can be corrected.

And that's why Internal affairs does work with citizens, especially here in Columbus, to try and take citizen complaints and remedy those issues.

I'll push back on the two of you just a little bit only. And again, I think you guys are talking about the egregious violations of someone's rights and physicality and stuff like this. But there's a lot of court action that happens. We have 17 common pleas judges and in those, some of the judges will find that somebody's search was unreasonable or someone's violation of constitutional rights. And in those situations, it happens more often than people realize. But that's a nuance of how the law was interpreted and how it was applied. And that's what helps officers learn and understand and do a better job in the future. Now, I'm going to give you, Steve, information here that is just mind numbing and mind blowing.

And I don't. I'm not. Anyone who knows me knows I'm not a political person. I like you don't work for cause, you work for a client. In the situation. Since you mentioned 2000, there has been five officers indicted in Franklin county for police shootings and lethal force. It'll be the seventh trial or the sixth trial will be next week in the size of Franklin County. In that same time Frame when those five cases happened in the country, 33 officers were charged with a lethal shooting, including those five officers.

We have one sixth of the country's charges of officers being shot in Franklin County.

So that's not shootings in general, that's officers charged with shootings.

Officers charged with a lethal shooting, with murder. We have one sixth of the entire country's population. And the statistics here in Franklin county. Okay, so that's a statistical anomaly. So something's not working correctly. The presentations to grand jury, the way it's being reviewed and because the basic line is anyone can get indicted because it's probable cause.

Well, and then statistically if you look back, it's like of those 30 or so, there's probably, let's take out a certain percentage that they should be charged.

Absolutely.

It's like you would think. There's some that are in the middle, some no way and some yes, good.

Police officers will tell you, listen, the George Floyd case, there's many other cases, that person should be prosecuted. The full system of the law and they don't support that. But what this has had an effect in Franklin County. You mentioned with some of the statistics, the Columbus Police Department is down over 200 positions. They can't fill them because the people don't want to be involved because they feel like either the administration or the police force or whatever won't support them in a situation like that. Adam Coy, another client of mine who was found guilty because he mistook a set of keys for a gun. He was eating his lunch at three in the morning and he had a year left on his thing. He wasn't a very aggressive or proactive type of officer at the time.

And so when that came out and that hit officers are like, why I'm not going to place myself in that situation. Hilliard is down four officers now. It's a smaller force, but that makes a difference.

Well, like four in a smaller force is more than the same percentage in a bigger force.

That is the, that is what the issues that we're having now that affect Franklin county with law enforcement is getting good recruits and prospective candidates is way down.

And I think you hit the nail on the head. It's good recruits. Some of the people that we're seeing coming out now because of 2020, because of the lowering of standards and it's out there. I mean there is, you hear some of the anecdotal discussions and examples from the academy and you will say to yourself, I don't want them on the street. So it's almost becoming a little bit of a self fulfilling prophecy in our eyes because in 2020, you know, especially in Columbus, they said, you know, the police are bad. And CPD was one of the most elite forces out there, most well respected. And now you're starting to get into that position where there is some. Some that aren't as good as they were they once were.

And to your point, Mark, it's. You know, when you look at it, because I've been in it now to see it, some of the trends, and when you have. And not to go down the political side, but when you have a county prosecutor who says, we're going to prosecute officers who succumb to the temptation to shoot people, my stomach turns. Succumb to the temptation to shoot people? What? I mean, that. But that was their words. And so my fellow officers, some of them are like, I'm out. This was a calling. It was a profession I've always wanted to deal with.

Maybe it's in the family, but I'm out. There's no way I'm gonna subject myself to it. And since then, we've seen these officers indicted, and you're like, what the heck?

And in 2020, with the riots, and this is not an exact figure quote, but Franklin county, in Franklin county with the riots, they charged three Columbus police officers with criminal offenses from there, and a private law firm, Baker Hosteller, did a long investigation. The federal government, under former U.S. attorney David Dillers, did an investigation of that. None of them brought charges. Well, the city of Columbus hired a special prosecutor to look at that and a retired FBI agent. And they charged three officers with violation of civil rights, misdemeanor charges. And I believe we're the only city that actually ended up charging anybody. Of all the protests across the country.

And again, that sends the type of message that brings down the recruiting, those charges.

And I think you probably know better. I mean, you would think if you're on the outside looking in, well, what do they do? They beat the crap out of someone? No, they used Mace.

One of them.

One of them used one burst of Mace. And the only reason I know that is one of the officers I'm currently representing were in a civil rights case against the investigator in all those cases, just to let. Because Mark didn't say it. One was tried not guilty, and the other two were dismissed.

Correct, Mark? Correct.

That's how they resulted. Well, look, Mark, you sort of touched on this, and I think this is a nice segue to talk about. What's going on up in Minnesota, Is it? You know, you've got a grand jury from Franklin county, and clearly Franklin county grand jurors in recent times, if your stats are correct, aren't favorable to police officers, they're more inclined to indict or charge police officers. How does that change? Or have you represented folks other than in Franklin County?

Yes, absolutely.

And how does that change?

You know, it's all over the board, Steve. So my recommendation for any elected official, county prosecutor or city prosecutor, is to do the most thorough investigation you can and to hire reasonable experts on both sides of the equation. So there's a situation in Athens county that my expert and I actually consulted on. Hunter. The name of the Blackburn. I forget his first name. I'm sorry.

Keller Blackburn.

Keller Blackburn. He had an issue with use of force. Someone died. He talked to an expert that we recommended. He talked to an expert on the other side. He sat down and they did a thorough investigation. Then he looked at it and says, geez, this is a close call, this situation. How about we resolve this? And they resolved it with a negligent homicide.

The officer stopped, you know, gave up his ability to be a law enforcement officer, agreed not to do that again. And then. So the family of the deceased has something there, and the civil cases will take care of that. But there is a person who resolved it pre indictment, pre charges. So my advice is to do as thorough investigation as you can. Look at it from.

You would be saying this to the county, Correct?

To the county. And I'd also be saying it to the people in Minneapolis right now, whether you're the FBI investigating it or whether or not you're. That the police forces or that state process do it like here in the state of OHIO now, since 2000, it used to be the Columbus Cert team, critical incident Response Team, would investigate any use of force involving a gun. But because the Columbus police officer Andy Mitchell was charged, it was the first. First time someone was charged in Columbus since 1970. So then there was a feeling of, well, geez, can they be fair to the. One of their own? This was an elite force with an elite group that had the most expertise you could have and they did things the right way. Well, now the state has stepped in through the attorney general's office and they have an elite force and they're very schooled and skilled on the case law and Graham factors and State v.

White and the process. And their job is to. They are fact gatherers. They don't make. They don't have an opinion one way or another. But they're now used. So they are in the southern portions of state. I worked with them just on a shooting in Ross county, and they've done an outstanding job and other ones.

So different counties do it different ways, but there are people who know what they're doing. So in Minneapolis, the worst thing that they can do is rush to judgment. The worst thing they can do is give all these opinions. They need to do a thorough investigation and then determine, you know, if it was me, it would be a joint investigation. Because some of the local things, like the Columbus Cert team or the Attorney General's Deadly Use of Force group, they know things better than the FBI because they deal with it in all different parts of the state and they see all the nuances. But I would use as much resources as possible in order to do a thorough investigation.

Before we jump to Minnesota, Dave, Mark was talking about a case he worked on where somebody actually entered a plea of guilty. There was some sort of agreement. How does that inform your decision either to defend a police officer in a civil rights case or actually prosecute or sue somebody in civil rights case?

Sure. Typically when in a state situation like Mark described, if the officer enters a plea, let's say, enters a plea of guilty or, you know, an Alford plea, typically that does impact the civil case.

So an Alford plea being Alford vs North Carolina vs Alford, which is a case the US Supreme Court says that you can actually plead guilty only to avoid the consequences of trial. You're saying out loud, I'm still maintaining my innocence, but I'm pleading guilty anyway. Why would somebody plead guilty to something they feel they didn't do? Well, because if you don't plead guilty and you go to trial, the consequences could be crazy. So anyway, that's just a quick aside.

Yeah, thanks.

Cause I forgot that because I left my prosecutor hat years ago.

Of course.

So thank you. Now he's a money lawyer now. Yeah. Not for justice, for dollars. No, just so it does impact the civil case when. You know, I get calls a lot of times from criminal defense attorneys, not just Mark. If I'm representing an officer and says, hey, we're going to enter a plea, how is this going to impact the civil case? And I explained to him, it does negatively impact the civil case. It's not the end all, be all, but it can impact it depending on what the claims are being brought against the officer or the agency.

The difficulty, Steve, in these is these types of cases with the lethal force, there are no alternatives. Everyone's backed into a corner. The prosecution is backed in a corner because now they've indicted this person. And how's it going to look, if they dismissed or something like that, and the officer's like, I didn't do what they're saying, I believed that my life was in danger. That's why I fired. So what our legislature has to do is what's happening now that it's just wrong. And again, I'm on my soapbox and I apologize, but they're charging officers with felony murder. Felony murder was started by a legislature to stop people from committing felonies because bad things happen when you commit felonies.

Unfortunately, if the drug deal is going on, someone dies. If you're robbing a bank and you have a gun, sometimes a teller gets shot and stuff like that. So bad things happen. But we scoured the legislative notes on felony murder and the history of it. There was not one thing ever to say, you should use these in police shootings. So that's how they're not indicting them for purposeful murder. Now they're indicting them for felony murder, meaning that that officer, he or she left their house that morning with the intent to commit a felony, a felonious assault on somebody or something like that, and as a result, the individual died. So it's just, you see how they're, you know, putting it, trying to shoehorn it in, and it's just.

It's a charge. Now, should a reckless homicide be. Be an option for police shootings? Absolutely, because that's one of the issues, and I'm sure it is in civil cases. Well, was the officer reckless or, you know, was there an indifference, was a policy violated, was a tactic not used? And that's where it comes into play. But when it's an all or nothing, that's when you put in these situations.

I'm already seeing this in the Minnesota case. It's like sides are getting drawn up immediately. And I mean, you know, look, whether on the justice side or the government side, Department of Justice side, on the government side, like, they're immediately backed up saying, you know what? The car is a deadly weapon and this was a good shoot, and yada, yada, yada, on the other side, no, it's murder, it's murder, it's murder. Like, where do you find a common ground with that? And you almost wish that on the Department of Justice side, somebody would have just said, this is horrific. This woman lost her life, and no words are going to fix that. We're going to take a few days, we're going to do an investigation, and we're going to disclose whatever we can disclose as soon as we can and we're all gonna work through this together. It's like somebody just need. And on the other side, maybe instead of saying this is cold blooded murder, they could say something like, we're looking into this.

Apparently it looks really bad, but we're working with federal government to figure this out. Like in my utopian world, that would happen.

That's what should happen. Steve and I don't watch a lot of the newscasts and stuff like this the last few years, but I specifically went home that night when this incident happened in Minneapolis and I watched Fox cnn. I watched as many of them as I could. And I can't tell you how many experts, how many pundits had the wrong law, the wrong perspective and they were giving advice and narrative on case law. One person actually said, well, the Supreme Court decision came back allowing officer created jeopardy. And I'm like, no, I wanted to hit my head into the tv. No, that's exactly not what happened in this. It's a case called Felix vs Barnes.

Yes, but the Supreme Court shows specifically not to talk about officer created jeopardy. And no such thing exists. It's an academic term that professors and use of force experts sometimes coin. So you saw, and I just could not believe that the people with the expertise they have in there, one person saying, well, no, you got to look at it from her perspective. You got to look at it from this perspective. No, you won't know anything until he gives a statement or gives this and you have the totality of the circumstances of what was in his mind. Because remember that first prong is did he have a subjective belief that he was danger of serious physical harm or death? We don't know what his belief is yet. He hasn't told anybody that, you know what I mean? So you have to hear what the belief is.

And then second, when it's reviewed objectively under the reasonable officer standard, were his actions reasonable and that another officer in his or her shoes could have believed the need. Not coulda, shoulda, woulda, or I would do this. Definitely I would not do this. But would it be reasonable to have that same belief and situational use of force?

Well, let's. Let me. I'm going to put everybody on the spot real quick. So, Dave, you saw that video, right? First reaction. I'm talking, when I say the video, like the original release video of the.

Minnesota shoot, the absolute first reaction is, oh my God, it looks like a bad shoot just, just because the vehicle was going very slow. And that was the first reaction. But as Mark stated from my Standpoint, you would want to gather all the evidence to determine whether if I'm defending the officer in a civil suit, whether that's a good defense or it was a good shoot, or if I was obviously the family in a wrongful death case or a civil rights case, whether there's a viable claim. But as Mark said, it's hard. You have to gather all the evidence. There's so much misinformation out there right now. We have all the cell phones that are being shown of different perspectives on what's going on and AI injecting AI, and I don't even know if the videos are real, if they're not real. So you just don't.

No.

So like I said, from my standpoint when I first saw it, and like Mark, I watched cnn, I watched Fox, and I'm laughing because I'm telling my wife that's the wrong law. Not only from the criminal standpoint, but from a civil standpoint. I mean, the criminal and civil standards are sort of similar as it relates to the liability portion. It's just a different standard, different burden. So I think, like, if the officer came to me, the federal government, I'd say let's gather everything and same as the family did, let's gather everything and see whether, you know, it falls within, you know, a potential civil case or a very defensible civil case.

Eric, your first reaction, you saw it?

Well, actually, my first reaction was the similarities to Connor Grubb. The thing as I was watching cnn Fox, I was going through the whole thing too, was knowing, I mean, having been involved in this now for a while in some of these cases and seeing them from the peripheral, the first thing that I. They saw the pundits doing on. On the news was, well, this officer had been drugged last, you know, a week before. Horrific, but doesn't matter here.

Somewhat irrelevant.

Right, Right. Same with her. You know, she'd been blocking off ICE agents all day long. She's been causing grief. Doesn't matter. Yeah, you have to look at it for that specific incident, the totality of the circumstances at that time was that officer reasonably believe that his, you know, his life or somebody else's life was in danger. And so personally, just from the videos that I saw, I thought, geez, I mean, one video showed his feet off the ground. Again, I'm thinking, man, I could see that now, you know, whether multiple shots were done as the car was driving by, I don't know.

But it's certainly like you said, you have to wait till all the facts come out about it. But a lot of the other peripherals I don't think matter.

It did look different from the body cam vantage point than the other vantage point. And there's going to be cell phone videos and other stuff that comes out that I think is gonna change everybody's perspective. But I like you guys, I saw in the days after you start hearing people saying, well, he had been dragged before, or she was out stalking all these federal ICE agents around, I'm thinking to myself, I don't care, I don't care. I mean, I care. But it's irrelevant for what we're trying to analyze as we unpack this thing. But look, I mean, this guy's got it. He's an officer. He's given an order, Eric, and the car is coming at him or there's going to be so many people, I think somebody said about the alternatives he could have done or could have just jumped out of the way, which you.

Can'T look at 20. You can't look. As Mark said in the same. The civil case, it's 20 20. Hindsight's not permitted. You can't say, he should have done this, he should have done that. That cannot be viewed.

One more follow up for you, Eric. I want to get to Mark's. Go ahead.

Okay.

No, no, Eric, you said something like his life or for his safety and others. And we haven't really unpacked that yet because what is the police philosophy on. On chase? Like, say they just gave chase and they're chasing him down. I've heard different stories on this. Sometimes you hear that police are now instructed not to engage in those kind of chases and just let them go. Or if they do engage in chases or does it endanger others?

Like the whole chase thing is a whole nother.

That's a whole nother.

Because that would have been the alternative.

Right.

That's a whole other issue.

Right. And you have to, you have to weigh whether, you know, putting yourself and the rest of the general public, you know, in potential jeopardy for chasing someone. There's all kinds of things that can go along with that. Is it. Does it outweigh, you know, apprehending him right there? Do you, do you have a plate? You saw that he did walk around and was filming the plate. So presumably they knew who she was. So that, that, you know, comes into play versus the, you know, the blended township case, where there's no tags on the car, there's no handicap sticker, you don't know who this person is, you know, so it's not like you can go put a warrant out and grab them later. So I mean all that comes into play and also comes into play on, on.

Do you feel that this person is going to put somebody's else life in jeopardy going forward if you let them go? I mean in, in the department I work with, years ago we had a Taser case where you know, someone was tased. And I think it came up, you know, and he was tased and ended up being injured from it. But he was also going into a business. And so the officer thought, geez, if I don't, if I don't stop his actions now and he goes into that business, he could do harm or, you know, and it was a bad guy. So there's a lot that goes through that mind of that officer in split seconds. You know, that's, that's the thing that, that makes it so difficult at times.

And Mark, I wanted to get to you last because there's some of these things that are sort of. Connor Grubb sort of had a better factual case in some ways. You know, we don't have like there was an explicative where the cops here saying, you bitch or whatever. In other ways.

Not my first reaction, Steve, was it's a tragedy. It's a tragedy that that person lost their life. And then when you look at it, I would never give you an opinion if it's a good shoot or bad shoot. But the issues that are going to be put forth for a potential jury, there's a lot at work here. What do I mean? The first aspect is the pundits on the national shelves are like, you can't shoot at a moving car. There's always exceptions. So you have to look at the thing. So what this will come down to is his training.

Now when I say training, national standards is what the case law says you have to use. Well, these guys are trained differently. They only have 16 weeks of training, whereas Columbus Police Academy go through.

So by these guys you mean ICE agents.

ICE agents. These ICE agents only go through a 16 week training course. Yeah, 16 week training course. So in this situation, let's look at prong number one. Did he have a subjective belief, an argument is going to be made to the jury that when that car wasn't here, when he was in the front of that car, that yes, he had a subjective belief of serious physically harm and his training would mandate, not mandate. His training led him to believe that he must stop the threat. That's what they're told, stop the threat. That's what they're trained.

That's what they're taught. So when the first. When I see the first firing there at the front of the car, an argument's going to be made to the jury that that's fine. Absolutely. Okay. Then, however, there's what you were talking about with the moving vehicle. There's a general policy. You don't move, you don't fire at a moving vehicle going sideways or away from you or stuff like this.

But there's always a caveat.

Yeah. You can almost. You can already see how that's a little bit. That's intended for a different scenario, right?

Absolutely. But in this situation, unless you can get out of the way. So the issue is going to be, could he get away at the first time you discharged? Now, to a jury, the prosecution is going to say, hey, the first shot, okay, but those shots on the side, how was he still a threat? Was she still a threat to him when he was on the side of the car firing? Now, the argument the defense is going to make is she's still a threat to others because even after the first shot, she's not stopping. Who knows what's up there, over there, over there in the different areas. So that's what the argument's going to be made. But was she still a threat at that point in time? The reason I know that is because in my case with Andy Mitchell, their expert for the prosecution said Andy Mitchell got sliced 34 stitches by an individual who brought a knife out and sliced him and then there was a struggle in the car. Well, their experts said, the government said he would have been justified had he shot then, but because he waited and she then went on the side of him, got behind him in the car while he was strapped in, that therefore she was no longer a threat. So there's going to be arguments made of every way.

Now, our expert will say, you're more of a threat from behind. You don't know. So there's always both ways. So that's where it's going to go. It's going to come down to. And again, it's his perspective. What did he observe and what did he know? What I was troubled by is day two or day three, then I'm hearing an officer's telling them, get out of there, just get out of the way. They want her to clear out of the way.

Okay. They want her to release the area. So she's getting one command to do that. Then I hear that someone in the back's like, no, that's the person who's been doing this, stop her and arrest her. So then you've got another officer saying, no, no, you're under arrest. That's when you see her go forward and then back up and stop. And then, you know what I mean? So it's going to come down. It complicates everything as to what commands.

If the defense brings out something that, you know, or excuse me, the government brings out that she was told to leave and get out of here. You know what I mean? And that's proven in court. I mean, that changed the balance. And so a jury's going to have to determine this. And again, my advice is to do a thorough investigation. Look at it.

Now, Dave, we talked before we started here about specifically, there were three shots, not just one. So tell me what you said. I want to hear Eric's response to that a little bit about, look, how police officers are trained in the shot.

Yeah.

From my experience, and Eric can probably testify, this is. They will shoot until the threat is stopped. And that's what it happens.

So it's not like, bang.

It's not. I've got two more.

Right.

I've had cases where I'll represent an officer and they discharge their weapon five times into someone and the attorney representing the family makes a big deal. Well, they shot him five times. Well, that's because he continued to be a threat.

Let me interrupt one point. Every time you pull the trigger, you have a duty to reassess.

Okay, there we go.

And that's why. No, that's correct. But then until the threat is now.

This is the legal side. Every time you pull a duty, every time you pull a trigger, you have a duty. Recess. How does it work on the street?

Well, I mean, it is. And I think some of the things that you actually see in the real life scenarios is sometimes your perception of that threat being done. It takes you, and I don't have the stats, you know, a split second to process. And meanwhile, you're still seeing the person and standing. Not. Not in the minute Milwaukee case, but you're still seeing the person standing up. And so you're firing more rounds. I haven't seen him fall down yet.

I haven't seen him fall down.

I didn't see the gun fall.

I didn't see the gun fall. And so you're, you know, your reaction to that.

It's called OODA loop. There's a whole.

Yes. And there's experts. There's like, I have a civil case now. We have experts who, who will talk about Perception and the timing and all of that.

When you're placed in dynamic traumatic situations to make split second decisions, your eyesight might narrow. So if this officer says this is all I saw right there and that's all he or she focused on, that's their perspective. Sometimes you don't hear your auditorial goes down. And they're all proven things because they've.

Done these, Steve, these are all fight or flight human response.

But they've done all these studies in controlled settings. And so that's why they have shoot, don't shoot scenarios all the time. And they try to put police officers in dynamic decision making aspects, split second decisions. And I can't tell you how many times they're wrong. You know what I mean? But that's what they train on. Because you're asking a human being, basically what you're asking is officers to be superhuman and make split second decisions and not be affected by all their stuff and reassess and do all these things. Things. And to preserve the sanctity of life.

Because that's what they're charged with. To preserve the sanctity of life.

And one thing, Mark makes a point. In a civil case, an officer can be mistaken and that does not mean that that officer would be held liable.

And that's the same is true in a criminal case too.

It might be. But you know, a lot of times, you know, officer may perceive a weapon and that individual does not have a weapon, the officer discharges his or her weapon. That does not mean, oh my goodness, all of a sudden they are civilly liable.

And, and as long as that mistake is reasonable, we're back to that standard.

Well, Eric, I'm going to tell you, I'm going to tell a story. I want to get your. It changed the way I view these things forever. I went home, it was a Sunday night. I just moved into a house of my basement and I was remodeling it. My basement was full of boxes and other stuff and I sort of fell asleep early or watching TV or something and I heard a noise that I could have. I had no reasonable explanation for it. Just one of those noises that, you know, sometimes you hear something like oh, it must be the bike fell down or it must be that.

But I had no reasonable explanation. And noise came from the back door of my house that went directly into my basement. So I thought, oh crap, I have a weapon in my house. And I went down to my basement which was like little pull chain type basement. And I had a gun in my hand. I've never been more petrified in my entire life. And I mean that like what you're talking about. Mark.

I was. I mean, I was absolutely. And I forced my way through it. I went through the whole basement, and I've never been more petrified. It has forever informed my interaction with these types of scenarios. Because now, look, if I did it again, might it get easier? Maybe. But it would take real experience and constant training to be able to deal with that kind of look. I perform music, I get like.

Mark, we all get in front of juries. And the first time you did that, you're short of breath and everything. And even today when I stand in front of jury, I have to take a deep breath and sort of eliminate that. But I've learned how to do it. And so, look, can officers be trained to deal with this, or is it just real life or some people better than others? Mark, you're smiling.

You do the best you can. You do the best you can. But every officer reacts differently. Every. They're human beings and they have issues. And so in this Minneapolis case and other cases, you're going to hear certain terms. An action's faster than a reaction. So the case law, just take that concept there.

An action is faster than reaction. We all understand that. If you take a dollar bill and David puts his fingers out and I know, like this, and tries to get the dollar bill, he can't get it. You can't get it. If I drop it, he can't. He can't unless he's lucky. So based on that, the Supreme Court of the United States said officers don't have to wait to be hit by the car. They don't have to wait to be shot at.

They don't have to wait for the knife to come towards them. If they have a reasonable belief that that is an eminent threat, they're allowed to be proactive. And that concept jurors just don't like because they want them to be more careful. Hey, they could have waited another second or two, maybe the person wouldn't have shot at him and stuff like that. So that's where the case law gives the officers the deference based on the situation you just described in your basement. But the reality is the jurors sometimes don't because they just, they can't give that. So that's the never. You're going to hear threat indicators.

You're going to hear action versus reaction. You're going to hear, you know, the policy on. The Department of Justice's policy on moving vehicles. And you're going to hear all these types of things, but in the end it'll come down to a jury.

And that's in the civil case. You have the claims. You also have. You brought it up. The failure to train claim. It is also a claim that if the family on the wrong, you know, the family representing the estate is going to raise, not only, you know, they'll raise certain federal claims. This is a federal claim because it was a federal employee. So you might have heard, some of your listeners might have heard about 1983 action.

You do not have a 1983 claim in this particular case because it was a federal employee. So you have two types of claims here. You can go under basically the Federal Tort Claims act where you bring state claims, you could bring assault and battery, a wrongful death claim, and then you have this Bivens claim, which is a case law which our Supreme Court has limited it, whether you can bring the excessive force claim. But those are the things you're going to see. But that failure to train claim, I think is going to be heightened in this particular case is probably going to be under the Federal Tort Claims Act.

Yeah. And that's why I told that story, because 19 weeks.

Yeah, 16 weeks or 16 weeks. Here's the issue. The case law, if you're in federal court, the case law is was it reasonable based on nationally accepted practices? There are, however many police departments across the country. Not one of them does it exactly alike. We have a pod in Ohio where there's a general curriculum that you're supposed to follow. So we know how Ohio law enforcement officers are trained. Each individual law enforcement agency or police department will then train as well as their own. So a training in Nebraska is not going to be the same as training in Columbus.

So how do you have a national standard in your jury instructions versus that? And so that's why in criminal cases you can't go into the specific type of training or lack of or stuff like that. But it's going to come down to training and what they're trained based on. So OPATA certificates, the Opata training that's in play in a criminal case. You know, you went through this, you went through this.

That's Ohio Peace Officer Training Academy.

Exactly. Protocol. Yeah. Yeah. And so that's. But that just shows you that these cases are so seldom. Okay. You just don't have a lot of police shootings and deadly force ones.

And again, I've done now seven of them or eight of them in Ohio. And I don't know if anyone's even come close to that amount defending police officers across the country because unfortunately I've had to deal with them. But it comes down to training and it comes down to. And then the argument will be, well, was he outside the policy? Okay, isn't that, don't you think that's a common sense. Did the officer violate an internal policy? Right, sure. Well, the Supreme Court of the United States said just because an officer violates a policy does not make his use of force unconstitutional. Because a small jurisdiction may have a policy that's dumb versus, you know, so they're not going to get in that policy debate.

And it would preclude, effectively preclude changes of policy.

I think, I think either Florida or California. I thought they said that they have a policy with police officers and not to stand in front of vehicles. I think I read that somewhere. Some, some type of, of, of laws regarding that.

Some of them, yeah, but that's what I'm saying. They'll have policies that say you can't, but every officer who's good or trace and see will tell you, no, I've been in front of a parked vehicle before. I've told them I've given command.

But that's why those policies, what you're saying so of, you know, basically indicates.

Like you said, so much, so much of it comes down to training. And when you were walking in your basement, the first time you did it, maybe the first time you thought about it. I mean, what happens if someone pops out? I mean, am I justified what, what we try to do? And, and we do this in some regards to the civilian market too. A lot of people carrying guns now is, is getting them thinking. You have to be able to assess the threat too. One of the things we do in class and we've done in law enforcement for a long time is stick someone at 21ft with a knife and say, is that person a threat? Are you justified in, in pulling a gun and stuff with a person 21ft away? And you look at that, what do.

You think the answer is?

I would say yes.

I would say yes, absolutely.

People say no, but it's a 21 foot rule.

But I know that because I've thought about these things. Yeah.

And that's it.

I mean, we talk about that all the time in our civilian classes. Think through the scenarios. I can't tell you. And I'm not.

Seven steps is 21ft. I mean, yeah, you cover that like.

Yeah.

And, but you have to think through these scenarios long before they ever happen. Every Time I pull a car over, I'm thinking to myself, okay, if someone pops out of a passenger side, if I jump out, where am I going to get cover? I mean, you need to think through these. So if it ever were to happen, and you hope it doesn't, it's a little bit of a second nature. Your training kicked in versus crap. This is the first time I've seen this, and I'm going to that black state and I don't know what to.

Do and to follow up. And I apologize. I'm remiss in doing this. In any police officer use of force in a criminal case, the first thing you have to show is that there was reasonable articulable suspicion for the officer to take action or to investigate, he.

Had to be there legitimately.

The second thing you have to show is that was there probable cause to detain the person? Okay, so that may be an issue in Minneapolis. Now, once you have reasonable articulation, sufficient and probable cause, that's what kicks in the Fourth Amendment and the safeguards of the constitutionality of it. And the issue is Grant v. Connor says, here's your guardrails. Well, the prosecution doesn't want to go in those. They want to expand it. They want to expand the whole time. And that's what Felix versus Barnes was.

Because there was a small group in the federal system that said, no, you're just too at the time, right before the person pulls the trigger or does something like that. That's the analysis. Now, Graham's always said the totality of the circumstances, but the academic people are trying to pull it to create this officer created jeopardy. And that's what's very disturbing. They're saying, but for the officer doing this earlier, the officer wouldn't have been in this situation. That's where it gets very dangerous because there's a slippery slope. And if a prosecutor can prove one thing or two things that a person did that really didn't affect the decision to use the lethal force, that's the problem. And that's the struggle right now, keeping within the confines of Graham v.

Connor and the academics and the people who want to expand it with officer created jeopardy.

And this doesn't mean that we all have to agree with Graham v. Connor. This is one of the things as lawyers we deal with. It's like, look, and people will impute our opinions on this shooting or any other shooting from this. But that's not what we're doing here. I mean, like you said, there are guardrails. Here's what the legal standard is constitutionally. We still have a U.S.

supreme Court with U.S. supreme Court precedent. There's lots of cases I disagree with, but we're stuck with them.

That's the law.

I do have a kind of a question to that, to the panel. And this is something that. That has come up quite a bit in our world and the law enforcement world is. And I think it's happened in Franklin county, maybe in the Coy case, maybe in the Goodson, but where the. The. The civil side of it has come out before the criminal side and the city pays out. And we're standing back saying, doesn't that presume a presumption of guilt for this officer who hasn't even gone to trial yet?

Well, it's easy. You just tell the jury to disregard.

Well, that's a great point. I am very frustrated when I'm representing law enforcement. I'm very frustrated because sometimes you will have the criminal case and the civil case. And what we try to do when I'm representing law enforcement is we try and stay the civil case. So the civil case has stayed. Let the criminal case play out. Because, for example, one of Mark's clients or whoever can't be deposed in my civil case. So they have to invoke their Fifth Amendment right.

And that obviously precludes them from being able to testify as to their observations, what transpired. In federal cases, a lot of times the judge will stay the case and allow the criminal case to proceed. I have a state case now where the judge says, nope, I'm not staying the case. So my officer was put at a disadvantage, my client was put at a disadvantage because he could not test.

And by stay, you mean postponed.

Stay means that the civil case is, yeah, it's postponed. Nothing's going on. You can't do anything in the case until the criminal case is done. So. And a lot of times also, it is frustrating when cases are settled before either a criminal case or settled for an amount of money that I, you know, in my opinion, is just unreasonable because of other factors other than the.

Merits of the case and to your decision. The conflict that comes into our. My world and representing the officers is, hey, plaintiffs attorneys do a great job. David does a great job. I don't know if you do any plaintiff, but they have a job to do, and I get it. But in the criminal case, I'm working under the auspices of I'm not releasing any facts. So in the Casey Goodson case, nobody knew that he had a gun at the intersection earlier, waving around. Nobody knew that he had it in his hand, you know what I mean? Because I didn't say anything.

But here you have the plaintiff's attorneys holding press conferences, giving information, whether it.

Be you can't respond to or not.

And I don't respond because ethically I don't think it's fair because you taint a jury or something like that. But I knew the facts at that point in time. And so, you know. But that's the conflict between the civil cases pending and the criminal. Now, I'd like the civil to be done with or, you know, I just don't like them to be happening at the same time because of what David said. Then the officers have to be just, oh, and there's pressure. I mean, there's pressure on. There's pressure put on by plaintiffs attorneys properly.

I'm sure that, hey, man, they're going to have someone outside every exit and entrance of the courthouse, and it's going to be a sweatshirt with their persons on there. Justice and justice and justice. And they're trying to put pressure on because if they can get a criminal conviction, it makes the value of the civil case go up in theory. Now, I have no idea if that's true or not, but that type of pressure, which is, you understand, if you're a family member of that person, that person was shot in a Kroger parking lot, you know what you think, just for stealing, of course you're going to feel that way, and of course you're going to try to push that aspect to have a better settlement and stuff like that. I mean, that's the system, right?

Yeah.

Is it the cities paying out? I mean, did the city of Columbus pay out on these outside of an official civil case?

No. I mean, what typically happens is that if a suit's not. Usually when a suit is filed, if it's against, obviously Columbus police officer or a city of Columbus employee, the city attorney's office will handle that. But sometimes they have conflicts, and that's why I will get the case or other law firms get the case, and then they'll evaluate. Department of Public Safety works with Zach Klein, the city attorney's office, and works with the lawyers to determine if they're going to resolve the case in that monetary amount, and they work with the lawyers on that. It's just there also can be political motivations to get these cases done. Especially like you said during the riots in 2000, you know, there were paid, you know, 20. 20.

Yeah, there were. There were basically payouts of settlement cases, especially after A decision by Judge Marbley, you know, regarding the injunction. So it can be frustrating because a lot of times I think a value of a case is a lot less. But sometimes there's other, like I said, factors that they will pay out.

And I know nothing about civils, but I see. I think Andy Mitchell's case was settled for, I think, 3 million, then another for 6 million, another for 8 million, 10 million.

And that's even if they get acquitted.

Well, and here's.

They were done. Yeah.

Well, and here's the problem. Paying those out sets a precedent for other plaintiff's attorneys that when an incident occurs, they say, well, you paid Casey Goodson X amount of dollars. So we think our case is worth X amount of dollars as well. And that that can be difficult then to resolve a case.

Well, this is a good segue because I do this Minnesota situation is different than Conor Grubb. We have a federal agent acting in a local community. And so there's immunity issue there. But I want to also talk to you guys because I promised to do this for a long time about police officer immunity in general and cities immunity in general, public official immunity in general. But I think let's start first with the federal agent component of this Mark, and whether you think he has a how this goes, because does this go to federal court? Does it go to state court?

What happens from here if and when the person gets charged? I believe that the smartest move for the defense attorney is to remove it to federal court. And you're allowed to do that because the ICE agent was a federal agent working under the auspices of the color of federal authority and law. So anytime you have that, you can file a motion to remove it to federal court. You have a hearing in front of the judge, and if you meet the criteria in front of a federal judge, the case then goes to the federal system and the prosecutors or estate prosecutors go with it. So you are now in the federal system. They have exclusive jurisdiction. So at that point in time, now the issue becomes there may be a defense. If there's defense, then you could get immunity.

You could get immunity if you prove certain things in there. If you don't, then the case stays there and you're under a violation of civil rights law, which is a higher standard than a state law. So that's my limited knowledge of immunity and stuff like that, how it rolls from a defense standpoint. And so to me, that would be the smart move because a higher burden in federal court is tougher for the prosecution to.

I did a little Bit of poking around on this. And it stems. The immunity of a federal agent or federal actor in state court matters stems from the Supremacy Clause, right? So the federal government is the supreme law of the land. And this is always this weird little sliding scale. You know, on the one hand you got the federalist to say we, you know, the states have authority. On the other hand, they're saying at the same time, no, they have immunity when we are there. But look, the Supremacy Clause is what it is. And you know, the Constitution being what it is.

There was a case in 1890 called in re Nagle. I think it was N E, A, G, E, L or L E. And it talks about it. There was a federal marshal who was getting prosecuted and they created an immunity standard. It's not absolute, but if the case gets removed, then the federal judge has to determine, is there immunity? And I don't know how it all plays out, but there's a hearing and a decision that has to be made where the judge is going to say, yes, you are acting in your capacity of a federal law enforcement agent and what you did was necessary and proper in the course of your duty or something like that sort of bakes into the cake the rest of these standards were talking about. So it looks like this guy, immediately, whoever this agent is, is going to, if he's charged, he's going to try to remove it up to federal court. And that makes it better for him. I think from what you're saying, just.

Your options in terms of defenses. Because anytime the government has a higher burden of prove, you know, or a more difficult pardon with regards to language, it's better for you. And I'm sure, you know, you know, states have pardoned power and federal government has pardoned power. So depending on what party's in power, you know, you may want it in a federal to remove federal court because that person may pardon you, you know what I mean? Versus that. So those are aspects too. But in terms of qualified immunity and things of that nature, I know that I'm going to say this in a blanket thing because I'm not an expert on it or anything like that, but prosecutors have immunity, elected officials have immunity, and if you're gonna take police officers qualified immunity away, then you need to take the other qualified immunity.

Well, let's start with the definition of qualified immunity. We'll go to the smart lawyer at the table.

Typically, immunity they look at is whether did the defendant violate a constitutional right and was that constitutional right clearly established? So, like, when you have an excessive force case, that's a Fourth Amendment violation. So in a shoot, that's clearly, clearly established constitutional rule. And the question is whether the defendant violated that constitutional right. So as you indicated, to determine whether qualified immunity would apply, at least in a civil case, you then have the experts and go through the Graham v. Connor factors, Tennessee v. Garner, you go through all those factors to determine whether the defendant in this case, when I say defendant, that's a civil defendant, the police officer, whether that officer violated the constitutional.

And are you naming, when you're doing the plaintiff's work suing police officers, are you naming the individual police officer in the city and the state, or who do you name?

No. So in a. I'm going to talk about a state case, not, not like the Minnesota case. In a state case, you. You name the individual officer, and the only time that you can name the entity, like let's say the city of Columbus or city is for what we call Monell claim. And that means that they failed to train the officer, they maybe failed to discipline the officer because the officer has 500 different shoots, that type of thing. So typically, though, you would just name the individual officer. But usually the city, the municipality will indemnify that officer.

So if a judgment is obtained against the officer, they won't indemnify that officer as long as the officer was acting the course and scope of his or her employment.

So the immunity, the qualified immunity we're talking about would be anything other than these kind of constitutional rights. You can't just go sue a police officer.

No, you can sue a police officer, but then the officer would raise the defense of qualified immunity, which is what.

What would he be arguing?

He would argue that I did not violate that individual's constitutional rights, which would be my shoot was. My shoot was justified going. And look at the Granby factors. And that's typically usually a legal argument that the judge will decide on what we call a motion for summary judgment. That's where you have the battle of the experts. And you do that. If a judge feels that that is an issue of fact, then that can go to the jury, and a jury will decide whether the officers basically shoot was justifiable.

Now, what about, like, Mark, you were talking about judges and prosecutors. Can I just go sue a prosecutor?

No, you can't sue. Prosecutors typically have absolute immunity unless they, like, let's say they had exculpatory evidence or evidence to help the defendant that exonerated him from the criminal conduct and they hid that. Then you could typically go after a prosecutor, but Usually you cannot go after a prosecutor, cannot go after a judge, unless you have one of those extreme circumstances.

I don't mean to speak for him, but maybe you could do it better. But the way I understand it, and this affects the morale of the police officers, if you take away qualified immunity, it opens them up to have to defend themselves against anything that gets filed in a system, whether it's frivolous, whether it's not, whether there's something. And so then they have to pay out of their pockets. You know what I mean? So that's what they're. That's what the people I talk to are concerned. So if you take away. Now what Dave is saying is a higher end type of, you know, did they violate a constitutional thing and stuff? Just give them the ability to make that argument. Don't take that away.

Because if you take that away, then you open the floodgates.

And look, if anybody. There's something called a. Is it a vexatious litigator? Yeah, yeah. And there are people just sue, sue, sue.

Well, you have a lot of pro. I don't mean interrupt you. You have a ton of pro se litigants who will sue law enforcement. You also have pro se litigants who are Imperial Prison, who will sue prison guards. So you have a lot of litigation involving pro se. Pro se means an individual who's not represented by a lawyer and not a lawyer themselves. So you have a lot of that and a lot of these qualifying immunity. Eliminate some of that vexatious litigation.

Well, look, Eric, I mean, I'm thinking to myself, if the city is going to indemnify a police officer for their constitutional violation, I feel like that's coming out of my tax dollars. And, you know, so there is an argument that people would make like, wait a second, why should I, as a taxpayer fund that? But on the other hand, Mark, you're saying, well, the morale of the cops is like, why would we do this job in the first place?

And it's the frivolous ones, I think, that we're all worried about. I mean, if an officer did something against somebody's constitutional rights, then that's fair game. He or she deserves to be called out on that. But it's the frivolous stuff. And it seems like the perception is there's so many of these frivolous suits floating around that if that makes its way over to the law enforcement community, there's no way.

I mean, you don't know if it's frivolous until after the fact.

Well, and I literally get calls. I get a call from someone who was like, I was walking down the street and an officer came up to me and wanted my ID and I wouldn't give it to him and gets in an argument, says he violated my constitutional rights. I'm like, no, that's not true. But that's the kind of thing that I tell them, you have no case. But I think if you start to abolish qualified immunity and start to allow individuals to file these suits, you're going to have so many frivolous lawsuits and then the taxpayers are going to have to pay. Because what will happen is the city will then have to represent these officers. They'll still represent the officers. And it's just, it will cause a floodgate of a lot of ridiculous litigation and cost the taxpayers dollars.

Now the other side's going to say, well, hold on a second. Can't they just go get insurance policies like the rest of us? Or can't we, you know, what would emerge if that's eliminated? I'm not asking for an answer, but there's going to be. That's the debate.

I asked the insurance company and they won't, they won't write it anymore. So officers can pay into a fund right now that provides them for protection in terms of if it's an on duty situation and the national FOP or someone will pay for that. But they do that through insurance companies. And the insurance companies said, if you take away qualified immunity, we're not going to write those policies.

So it's not just that the premiums are going to get higher, it's that they won't exist.

We won't do it. Yeah, yeah.

Because they'll get crushed.

Well, I think, and I think now that there's. I do a lot of insurance work and I work with insurance companies. There's companies who now are trying to insure police officers, you know, as it relates to specific shooting. Because if a city says, we're not going to indemnify you because of, you know, whether you were found, you know, reckless under state law, you're reckless or acted in bad faith, we're not going to indemnify you. And so there are some insurance companies now who are looking at that, but the premiums are ridiculously high.

Yeah. I mean, they're only looking at it because they know that most of the time they are indemnified.

Right, they're indemnified, but they're collecting a huge premium from a law enforcement officer who we know is not making a huge Salary.

Yeah.

Well, look, guys, I'm going to wrap it up, but any final thoughts? I mean, Mark, I think you made the best point of all, which is investigate this thing in Minnesota. Get all the facts, get all the answers, be transparent about it and be transparent about it.

Yeah, yeah.

Any last thoughts, Dave?

No. I mean, I concur with Mark. Again, the criminal and civil when we talk about these are very similar or almost identical. So I agree. From a civil standpoint, whoever the family's going to hire is going to want to do a thorough investigation and hopefully they don't jump and start talking to the media. As Mark indicated, in some cases where they're saying things that are not accurate and obviously trying to sway the public opinion. And then from the same thing, the Department of Justice, the U.S. attorney's office is representing the ICE agent.

Hopefully they will be doing a thorough investigation and ensuring that the agent is protected.

Yep.

Eric, last thoughts?

Just appreciative for being a part of this group. I mean, and really thanks to both of you for supporting law enforcement in our community. I mean, really, that's some days that you know that you have a good team behind you and if you do the right thing and stuff. So I appreciate that.

It's interesting because they don't always support law enforcement because David actually sues law enforcement.

Well, I support.

Just real quick, I do support law enforcement. I have tons of friends who are in law enforcement. I represent them, I support them. But just as Eric said at the beginning, just like in every profession, there are sometimes bad actors and they do bad things. And so when that happens, we want to seek justice and that's what we do. And like, we make sure that the officer understands that his or her conduct was, you know, of constitutional violation and that needs to remedy and make sure that there's training in the future so it doesn't happen again.

Yeah.

So what I've taken away from all this. Thanks, guys. This has been phenomenal.

One thing before you do.

Yeah, go ahead, please.

From the criminal aspect, Steve, the thing I'm hoping for in the future, and I know I sound like a naive person, but we just need guidance. And what I mean by that, our legislature has been absent because think about it, the first time this has happened in Franklin county since 1970 was Andy Mitchell. Well, why would they address jury instructions? Why would they have to do this, legislate things like that? They haven't had to. But there is a need now for guidance from both the legislature as well as the Supreme Court in creating the appropriate Laws and the decisions to do that. And we have 88 counties or 92 counties, I'm not sure in Ohio, 88 counties. I have to go to every county. And they might do it differently because no one knows the thing. Give us guidance.

All we want is a transparent, fair process. And that will help everything. It will help civil unrest, it will help to educate people. It will help to educate officers in their training. It will help to educate victims of people who are, you know, from violations and use of force. And just give us a roadmap of what to follow. We're begging for it.

And then I will say I've learned a few things. One, and this was my thought, but you've absolutely confirmed it. This is not like a civilian self defense case. These are different. And like it or not, the law just does not treat those two things the same. Sometimes it's harder because the police officer has to justify, like you said, by probable cause why he was there in the first place so he doesn't get some protection. But on the other hand, it's a little bit easier because he's got the protection of being a police officer and somebody acting reasonably as a police officer. The second thing I've sort of learned here is that everybody needs to educate themselves.

And by everybody I mean everybody. And I've tried to do. I have an ongoing series on this show, guys, where I call it what they can't do to you. So what can a police officer do to you and not do to you on the side of the road? And really the message I have is with some limits, almost whatever they want. And then call me, right? Call me because I'm thinking of you. I'm not defending police officers when I say that, but I'm thinking of us as people who. I've been treated poorly by a police officer. Mark, I know you have had a run in OR 2.

It's totally unnecessarily. And the point is that the side of the road is not a place where we can win that fight. I can win it for you and I can call Dave and he can win it for you. And then Eric, I'll call you and say your cop screwed up and we can help you there on the side, on, in the office, in the courtroom, where we're all still okay. Because almost always these things are escalated situations, right? And then the final thing I would say is to both the federal government, the state government, the local governments, the talking heads is stand down a little bit, right? Show a little sympathy, show a little empathy on the DoJ side and on the other side. Look, you can't just tell people not to follow police orders and encourage that. You can't do it because this stuff happens. We all need police.

There's got to be a. Like I said, there's this yin and yang of it, and it's not perfect. But it can only be. It can only be good. It can't be perfect. Let's keep it good.

Well done. Well said.

Thank you.

All right, guys, thank you very much. This is Lawyer Talk podcast, off the record, on the air panel discussion. Hope you enjoyed it. If you liked it, leave it in the comments. If you got further questions for the panel or otherwise, we'll try to get them to these guys and get back to you. Otherwise, check us out at lawyertalkpodcast.com