Fighting for Death Benefits, CLEAT Continues to Battle for Survivors Posted by CLEAT   CLEAT’s Chris Jones with Tanner Claborn and Paula Claborn Henderson. Tanner and Paula are the surviving son and spouse of Harris County Pct. 4 Deputy Constable F. Scott Claborn who was killed in the line of duty on February 19, 2004. Deputy Claborn was killed when his marked patrol car, with emergency lights flashing, was struck from behind by a drunk driver. The Claborn’s have been in running battle with Harris County over survivor benefits, including worker’s compensation and health insurance. By Chris Jones During the early morning hours of February 19, 2004, Harris County Precinct 4 Deputy Constable Frank Claborn was sitting in his marked patrol car on Beltway 8 with the emergency lights displayed. He was doing something only a peace officer is authorized to do, operating an authorized emergency vehicle while escorting a road construction crew and directing traffic around a construction site. Something as routine as this soon turned tragically wrong when Donald Lee Fincher, intoxicated and driving over the speed limit, slammed into the back of the officers’ patrol car, killing him instantly. What has not been routine is the level of effort by Harris County to avoid taking care of one of their own. Harris County has consistently challenged Deputy Claborns’ death as not being in the line of duty. And the officer’s boss, Constable Ron Hickman has publicly supported the officer’s killer. There is a grey area when officers are hurt or killed while working second jobs. The question is whether the injury or death is considered “in the line of duty”. Generally, the rule of thumb is that if the officer was performing a duty that is inherent to their duties as a peace officer, such as effecting an arrest, as opposed to an ancillary duty for the private employer, then they are covered. For example, an officer may not be covered if they tripped and fell on a slippery floor while working for a grocery store, but if they were hurt while arresting a shop lifter, then they would be covered. It goes back to the old adage that an officer is on duty 24/7 and have a duty to act to protect the public. In Deputy Claborn’s case, he was operating an emergency vehicle, with overhead lights on, at the time of his death, something that only a peace officer is authorized to do. Regardless, Harris County denied worker’s compensation benefits to the deputy’s wife, Paula, and his 11 year old son, Tanner. The family appealed and won twice during administrative appeals. The county wasn’t happy with that outcome so they sued the family in civil court. However, the Claborns’ prevailed and received workers compensation. The county also failed to support the families claim for line of duty death benefits. They argued against the payment of benefits. The Employees Retirement System of Texas, the state agency charged with making determinations with regards to death benefits eligibility under Chapter 615 of the Government Code, initially denied benefits and the family had to appeal to a state administrative law judge. Ultimately the family prevailed and the state paid the death benefits and also issued a determination letter stating that the survivors were eligible for all benefits authorized under Chapter 615. The county also dropped the family from the county’s health insurance plan, even though Chapter 615 provides that survivors are entitled to continued health insurance coverage. CLEAT became involved in 2009 when S.B. 872 passed and we helped the family re-apply for insurance coverage. They were again turned down because Ms. Claborn and Tanner were not on the county’s insurance plan at the time of death. They were instead on the plan offered by Ms. Claborn’s employer. One of the provisions of S.B. 872 was to allow survivors to continue on the public employers insurance plan, even if the spouse remarried or had insurance available through another employer. The idea was to make sure the family were covered, regardless of their employment situation which can unexpectedly change. The county argued that in order for this new provision was to apply, the spouse and/or dependents had to be insured at the time of death which was ridiculous because the whole purpose of the new provision to cover people who had elected not to be covered. So CLEAT had to return to the legislature this year with S.B. 423. This bill again made it clear that if the family was “eligible” for coverage at the time of an officers death they could “purchase” or “continue to purchase” the insurance offered by the public employer. The bill passed and became law immediately when it was signed by Governor Perry on May 12, 2011. The Claborn’s have now filed another request for insurance with the county under the provisions of S.B. 423. Paula Claborn has since remarried, and she and Tanner are currently covered under her husband’s insurance, but he is employed by a school district and with the cuts to the education budget, they are concerned about layoffs and the ability to keep their insurance if that should happen, especially since Tanner has juvenile diabetes. The Claborn’s have not yet received a response to their new request for insurance benefits. Tanner Claborn, 17, the surviving son of Harris County Pct. 4 Deputy Constable F. Scott Claborn is pictured with the wreckage of his father’s patrol car. The Claborn’s retained the wreckage and use it as a display during drunk driving presentations at area schools. As a side note to this case, after the death it came to light that the family of the suspect were friends and politically connected to the Precinct 4 Constable, Ron Hickman. The family were outraged to learn that instead of supporting his officer, Constable Hickman contacted the D.A.’s office and asked that the suspect be granted probation in the case. After Fincher was sentenced to prison, Constable Hickman wrote a letter to the parole board urging that the suspect be granted early release. The family reported this to media which resulted in news stories and public outcry against the Constable’s actions. One can only wonder if this had any impact on the county’s steadfast refusal to provide benefits to the family. The family retained Deputy Claborn’s patrol car after the accident and use it as a display at DWI presentations at area schools. Tanner is now 17 and is a senior at Magnolia West High School. He plans to study Criminal Justice at Sam Houston State University, using the college tuition exemption offered under Chapter 615. He also hopes to attend law school and become a lawyer. LIMITED OPPORTUNITY TO RE-APPLY FOR BENEFITS S.B. 423 made a number of changes to the death benefits statute, Chapter 615, Government Code. First, law enforcement agencies now have a statutory duty to file death benefit claims with the Employees Retirement System of Texas for the families of officers killed in the line of duty. If a survivor did not receive a lump-sum death benefit they were entitled to because of the untimely filing of a claim, they may re-apply for this death benefit until September 30th of this year. Also, if a survivor has been denied health insurance coverage, the bill allows them to re-apply for coverage until September 1, 2012. Call or e-mail me if you have any questions regarding these benefit provisions.   ________________________________________________________________________________________   January 11, 2012   Feds to unseal some of case in Ariz. agent killing Prosecutors said they object to records being unsealed that reveal the identity of any charged defendant who has not yet been arrested, but they are willing to unseal the remaining records Associated Press   TUCSON, Ariz. — Prosecutors have agreed in principle to unseal some of the case against people accused of killing U.S. Border Patrol Agent Brian Terry more than a year ago near the Arizona-Mexico border. The Arizona Daily Star reports that six news organizations argued in a Dec. 19 court filing that the docket and all records in the case should be unsealed. The news organizations argued that the public has a right to inspect the records of the case and attend any criminal trials that might come out of it. Prosecutors said they object to records being unsealed that reveal the identity of any charged defendant who has not yet been arrested, but they are willing to unseal the remaining records. The identity of one charged defendant has already been revealed. Terry was killed in an exchange of gunfire on Dec. 14, 2010, when he and other agents were looking for bandits in a desert area more than 10 miles north of Nogales. Two rifles found at the scene were the same weapons being monitored by federal firearms agents as part of a gun trafficking investigation. The probe was intended to track firearms bought by straw purchasers but was heavily criticized because agents lost track of hundreds of guns. Critics have called for Attorney General Eric Holder's resignation for the investigation. One suspect, Manuel Osorio-Arellanes, was struck by gunfire and later told investigators he was part of a five-man "rip crew." Osorio-Arellanes was indicted April 20 on one count of second-degree murder and five other crimes. The indictment included blacked-out references to additional defendants. But in the ensuing months, the entire case was sealed. A judge must approve the news outlets' entry in the case and has the authority to order records unsealed. The news organizations that asked for the case to be unsealed are the Arizona Daily Star, The Associated Press, The Arizona Republic and Phoenix television stations KPNX, KPHO and KNXV.   ________________________________________________________________________________________ December 09, 2011   Defense lawyer criticizes FDNY response to mob attacking cops Cops were kicked, beaten on ground; firefighter mounted fire truck, dispersed crowd by spraying its water cannon By PoliceOne Staff STATEN ISLAND, N.Y. — Firefighters who used a water cannon on Tuesday to disperse a mob attacking  police officers in Staten Island, N.Y., are being criticized by the defense lawyer for two of the melee suspects. "The last time I heard water cannons being used on unarmed citizens was the civil rights movement in the '60s,"  D. Andrew Marshall told SILive. "That needs to be investigated post-haste," he added, "starting with who authorized the use of a water cannon  on unarmed citizens, kids." FDNY's Engine Co. 158 aided two police officers, who came to the scene in response to a threatened high school girl. They were overrun by the mob and were being kicked and beaten on the ground, SILive says. That's when a firefighter mounted the engine truck and sprayed the crowd with its water cannon. The crowd began  to disperse, and police backup arrived a few minutes later. Nine people, both teens and adults, were arrested after the brawl. Police Commissioner Raymond Kelly sent the firehouse a platter of cold cuts, cookies, soda and salads from a  Staten Island deli as thanks.   _____________________________________________________________________________________   October 19, 2011   Ill. bus driver lied about cop beating A former CTA bus driver was acquitted Tuesday on charges that he lied about being beaten up by an off-duty Chicago Police sergeant   By Rummana Hussain Chicago Sun-Times CHICAGO — A former CTA bus driver was acquitted Tuesday on charges that he lied about being beaten up by an off-duty Chicago Police sergeant. But although 43-year-old Ricardo Mendoza was cleared of disorderly conduct and obstruction of justice, Cook County Judge James Linn lambasted him and called him "selfish and greedy" for filing a federal lawsuit against the city. "None of this needs to be in court," Linn said, referencing Mendoza's criminal case and apparently the $1 million he was seeking in his pending civil suit tied to the Sept. 12, 2009, incident. Linn made it clear he didn't believe Sgt. Thomas O'Grady necessarily roughed up Mendoza after he boarded Mendoza's bus at Monroe and State. Linn Tuesday said it appeared as if the events blew out of proportion as "egos flared" as supervisors became involved.   _____________________________________________________________________________   September 28, 2011   ACLU challenges Ill. eavesdropping law Anyone in Illinois who records cops — even in public, even while they are performing their official duties  — can be charged with a felony By Jacob Sullum Chicago Sun-Times   CHICAGO — On Jan. 13, 2009, Michael Allison brought a digital recorder to the Crawford County Courthouse in Downstate Robinson, where he was contesting a citation, because he had been told there would be no official transcript of the proceedings. He was immediately confronted by Circuit Judge Kimbara Harrell, who accused him of violating her privacy and charged him with eavesdropping, a felony punishable by up to 15 years in prison. Because Allison had recorded conversations about his legal situation with police and other local officials, he soon faced four more eavesdropping charges, raising his possible sentence to 75 years. The case against Allison vividly shows how the Illinois Eavesdropping Act, the target of a constitutional challenge that was recently heard by a federal appeals court, undermines transparency, civil liberties and legal equality. The law's double standard is clear. It allows police officers to make audio recordings of their encounters with citizens but forbids citizens to do the same without permission. Recording police, prosecutors or judges is a Class 1 felony with a maximum sentence of 15 years, while recording anyone else is a Class 4 felony with a maximum sentence of three years. The law seems deliberately designed to shield police from public scrutiny. In a 1986 case involving a motorist who recorded the conversation between two officers while he was being detained in their patrol car, the Illinois Supreme Court ruled that eavesdropping occurs only in "circumstances which entitle [the parties] to believe that the conversation is private and cannot be heard by others." The Illinois Legislature responded by amending the eavesdropping statute to eliminate that requirement. Under current law, anyone in Illinois who records cops - even in public, even while they are performing their official duties - can be charged with a felony. Whether charges are brought may depend on how embarrassing the recording is. In August, for instance, a former stripper named Tiawanda Moore was tried for eavesdropping after she used her BlackBerry to record a conversation in which she said two internal affairs investigators encouraged her to drop a sexual harassment complaint against a Chicago Police officer. "I think it's something we can handle without having to go through this process," one investigator says in the recording. The jury acquitted Moore. Moore's prosecution is one of the cases that the American Civil Liberties Union of Illinois cites in its challenge to the eavesdropping law. It is asking the U.S. Court of Appeals for the 7th Circuit to rule that "the First Amendment protects people from criminal penalty for openly audio recording the conversations of police officers in the performance of their official duties in public places and forums, while speaking at an ordinary volume - that is, conversations where there is no reasonable expectation of privacy." The ACLU says this standard, which the vast majority of states have adopted, is required by the First Amendment. Last month, in an eavesdropping case involving a man who recorded an arrest on the Boston Common because he believed the police were using excessive force, the U.S. Court of Appeals for the 1st Circuit agreed that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment." Fortunately for Michael Allison, a Crawford County judge found that argument persuasive. "A statute intended to prevent unwarranted intrusions into a citizen's privacy cannot be used as a shield for public officials who cannot assert a comparable right of privacy in their public duties," Circuit Judge David Frankland wrote two days after the 7th Circuit heard the ACLU's arguments against the eavesdropping law. "Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information." Although Frankland dismissed the charges against Allison, prosecutors are expected to appeal, lest uppity citizens get the idea that it's OK to document the public performance of public officials.   __________________________________________________________________________________________________   August 31, 2011   Muslim headscarves spark brawl in park Safety regulations prevent headgear of any kind on roller coasters By PoliceOne Staff NEW YORK — Police arrested fifteen people after a fight over a Muslim headscarf broke out at an amusement park on Tuesday. A dispute began when woman wearing hijabs attempted to ride a roller coaster that for safety reasons, do not allow head coverings, county officials said. A park employee asked the women to remove their coverings before boarding the ride, but they grew upset at the request, and other parkgoers watching the scene intervened. The park entrance was closed for two hours as police responded to the melee, according to the Associated Press. More than 6,000 people were in the park at the time, and it is estimated that up to 3,000 were there on a Muslim American Society of New York-led tour held in celebration of Muslim holiday Eid al-Fitr. The Society had been advised of park rules numerous times before the event, parks Deputy Commissioner Peter Tartaglia said in a phone interview. “We don't discriminate. A baseball cap is headgear,” Tartaglia said. "Loose articles and personal possessions such as electronic devices, keys, hats, glasses,backpacks, purses and stuffed animals should be left at home, kept in a locker or left with a non-rider while at the Park or on rides," the park’s policy reads. A park spokesman said scarves are potential choking hazards. Two park rangers who intervened were injured and were hospitalized. Sources say the people arrested, who claim the police response was too aggressive, were later released. Several departments responded to the fight and it is unclear which law enforcement agency made the arrests.   ___________________________________________________________________________________________     August 28, 2011   Ambush attacks on cops increasing Of 50 killed by gunfire this year, 19 victims of surprise attacks   By Kevin Johnson Chicago Sun-Times WASHINGTON — Nearly 40 percent of police officers fatally shot this year have been slain in ambush-style attacks or when they were surprised by suspects with firearms. The killings, many stunning for their brutality, have some law enforcement and Justice Department officials scrambling to provide additional protection or training. Of the 50 officers killed by gunfire this year - a 32 increase from the same time last year - at least 19 were victims of ambush or surprise attacks, according to a USA Today review of the case summaries and interviews with police officials. The increase in gun-related officer deaths is particularly troubling since violent crime in much of the nation has been in steady decline. "This is a devastating and unacceptable trend," said Attorney General Eric Holder. Holder has launched a review of officer-safety, citing the need for research to help officers survive violent encounters, including ambush-style attacks. In several cases, the victims suffered fatal head wounds, which Robert Kaminski, a University of South Carolina criminologist who studies attacks on police officers, and other analysts said suggests that the attackers deliberately aimed to avoid body armor. "There is an increasing trend in the number of fatalities involving ambush," he said. "I think it is a big concern." Among the recent attacks: San Diego: Officer Jeremy Henwood, 36, a Marine veteran, was killed Aug. 7 while stopped at a streetlight. The shooter, a suspect in a separate attack moments before, pulled next to Henwood's car and killed the officer with a shotgun blast to the head. San Antonio: Like Henwood, Bexar County Deputy Sheriff Kenneth Vann, 48, was killed May 28, when a car pulled next to the deputy's patrol car stopped at a red light. Without warning, the suspect fired on Vann with an AK-47 assault rifle.   ___________________________________________________________________________________________   July 31, 2011 Crash claims NC officer's life Officer Russell Willingham's patrol car became engulfed in flames as he tried to assist other officers By PoliceOne Staff WINSTON-SALEM, N.C. — Police Officer Russell Willingham was killed in an automobile accident early Saturday morning. The Winston-Salem officer had been responding to backup other officers trying to stop a possible drunk driver when his patrol car left the roadway and hit a tree. Willingham successfully notified dispatch, but when rescue units arrived, his vehicle was fully engulfed in flames, My Fox 8 reported. Officer Willingham had served with the Winston-Salem Police Department for two years and had previously served with the Greensboro Police Department. ___________________________________________________________________________________________   August 01, 2011 Wyo. sheriff praises deputy who died in rescue Searchers found the body of Converse County Sheriff's Deputy Bryan Gross on Sunday morning   By Ben Neary Associated Press DOUGLAS, Wyo. — A Wyoming lawman who died last week trying to rescue a girl from a swollen river made the selfless decision to risk his own life, his supervisors said Monday. Searchers found the body of Converse County Sheriff's Deputy Bryan Gross on Sunday morning about 1.5 miles downstream from where he entered the North Platte River. Gross was one of several rescuers who went into the river after the girl on Thursday evening, in the eastern Wyoming town of Douglas. Other rescuers using a canoe steered the girl to the bank and she later was treated at a local hospital. Officials say she wasn't injured. Sheriff Clinton B. Becker told reporters Monday that Gross' actions went beyond the call of duty. "He made a decision to do what he did, and he did it to the best of his ability," Becker said. He said Gross was one of 14 patrol officers in the department. Becker and others in law enforcement have been mum about why the girl was in the river. However, Douglas City Administrator Steve Henning said last week that the girl, who he said was 14 years old, had jumped into the river after becoming distraught over her boyfriend. Gross, who grew up in Michigan, had worked as a Douglas police officer for a few years before recently joining the sheriff's department. Becker said Gross worked as a drug officer and handled a trained dog named Gus. Henning said Gross had gotten married within the past month or so to a woman who had worked as a receptionist for the city. Becker said neighboring Natrona County Sheriff's Office is investigating the incident and will have a report completed in coming weeks. He said he doesn't expect any criminal charges, but said the investigation will document what happened. Gross' death has hit people in Douglas, a city of about 6,000 people 50 miles east of Casper. "It's just tragic," said Jim Young, proprietor of the City Shoe and Saddle Shop on North Second Street who said he knew Gross. "I guess he did what he needed to do," Young said of the young lawman's decision to enter the river, which has been running high with runoff from snow-packed mountains. Undersheriff Don Schoenleber said searchers from several agencies had searched 24 miles of the North Platte before Gross' body was found. Becker said the department will consider issuing life preservers for deputies to carry in their patrol vehicles. "We don't do a whole lot of our work by the river — 95 percent of our work is out on the prairie," he said. "But on occasion such as this incident, you just never know." Funeral services for Gross are scheduled for Saturday at the local high school.    _________________________________________________________________________________________    July 27, 2011   Cop who shot BART transient waits to join FBI Officer's job change on hold due to a shooting probe By Demian Bulwa The San Francisco Chronicle   SAN FRANCISCO — The BART police officer who fatally shot a knife-wielding transient in San Francisco earlier this month was working one of his last shifts before a planned move to the FBI, but the job change is on hold during the shooting probe. The officer, identified by sources Tuesday as James Crowell, rescinded his resignation from BART and has been cleared to return to duty. But his plan to become an FBI agent raises the stakes of investigations about the July 3 shooting at Civic Center Station that are being conducted by BART and San Francisco police. Crowell's attorney, Harry Stern, said Tuesday that his client would still join the FBI after he is cleared of wrongdoing. A spokeswoman for the agency did not return a call seeking comment. Crowell was hired early last year from the Sacramento County Sheriff's Department, records show. He shot Charles Blair Hill, 45, after Hill advanced on him and a partner with a knife with a 4-inch blade and then wound up to throw the weapon, BART said. BART officials released footage from a platform camera last week that shows Crowell and his partner arriving on a train in response to a report of a drunken man with an open bottle. The video does not show Hill, who is out of view. BART officials said Hill first threw his bottle, and that a second officer - identified by sources as six-year veteran Myron Lee - slipped on liquid from it. Fourteen seconds after arriving, Crowell backed away and drew his pistol, the footage shows. At this point, officials said, Lee was on the ground. Another three seconds elapsed, with Crowell saying something, but BART's cameras do not capture audio. BART Police Chief Kenton Rainey said the officer was ordering Hill to drop the knife. The video shows what appears to be the firing of the gun and, an instant later, an object appearing in view. The object - which Rainey said was the knife - hit the train car and ricocheted back. Some police watchdogs have questioned whether Hill posed a grave threat to the officer, and have wondered why Crowell didn't use his Taser to subdue Hill. Stern said he expected officers to be scrutinized when they use deadly force. But he said "antipolice agitators" who have protested the shooting, and another fatal police shooting in San Francisco, have "revealed their true colors. ... They want cops shot or stabbed before they are allowed to use force." Charles Blair Hill was fatally shot by a BART officer July 3.                                                                                               Past Postings