Monday, May 14, 2012

Helpful Hint: Do not bite state troopers.

The Supreme Court of South Carolina has suspended South Carolina lawyer Michael DuPree.  The suspension is the result of a fracas in which Mr. DuPree allegedly punched and bit a state trooper while Mr. DuPree was on vacation in Utah.  The Charleston Post and Courier has the story.

According to the Post and Courier, Mr. DuPree was a passenger in a car pulled over by a state trooper near Park City, Utah shortly after midnight March 22. The car was allegedly driving 5 miles per hour over the posted speed limit and failing to stay in one lane. Some people I know call those two things “driving.” But they do not live in the Park City area.

According to the trooper, when the trooper tried to question the driver, Mr. DuPree repeatedly interrupted, swore at the trooper and refused to identify himself. Mr. DuPree also allegedly refused instructions to get out of the car. Apparently unhappy with the refusal to follow instructions, the trooper shocked Mr. DuPree with a stun gun.

One might think that shocking someone for not getting out of a car is a tad harsh. As this report by the New York Civil Liberties Union notes, the use of Tasers on non-violent or non-dangerous people to ensure compliance with police orders amounts to about 35% of all Taser use. This is interesting when one considers that courts like the United States Court of Appeals for Eighth Circuit has concluded that using a Taser on a non-compliant, non-threatening prisoner to ensure the prisoner follows orders violates the Eighth Amendment.  In fact, the United States Court of Appeals for the Tenth Circuit (which covers Utah), has held that this type of force is not justified against nonviolent people who commit misdemeanors who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public.  The reporting makes it seem like Mr. DuPree fell into this category when he was shocked.

If the trooper’s goal in shocking Mr. DuPree was to goad Mr. DuPree into biting the trooper, then the trooper’s plan worked to perfection. After being shocked, Mr. Dupree allegedly punched the trooper in the mouth. The trooper and Mr. DuPree began wrestling and Mr. DuPree allegedly bit the trooper before other troopers intervened and ended the melee.

As a result of the stop, Mr. DuPree has been charged with two counts of assault on a police officer, resisting arrest, public intoxication and disorderly conduct. The driver was charged with driving under the influence.

Mr. DuPree declined to speak to a reporter from the paper. The paper notes—as, I suppose, do I—that Mr. DuPree used to be a prosecutor for Charleston County, South Carolina. Mr. DuPree is now in private practice and his website has a page discussing how he defends people accused of driving under the influence.

My feeling on this last point can be illustrated

As someone who has successfully avoided violent confrontations with the police, I was surprised to learn that this is not Mr. Dupree’s first physical struggle with the police.

The paper reports that in October 2003, Mr. Dupree was arrested for resisting arrest and disorderly conduct charges after a disturbance at a Charleston hotel. Mr. DuPree was accused of struggling with police officers who tried to arrest him at the hotel after they responded to a report of a fight. Hotel security workers told police that Mr. DuPree had argued with his wife and then fought with two men who tried to intervene. The charges against Mr. DuPree were dropped after Mr. DuPree went thirty days with no further arrests.

It is not my main point, but one wonders how many people are unable to go thirty days without being arrested more than once.  This seems like a pretty easy way to get charges dropped.

Now that it has suspended him, will the South Carolina Supreme Court find that Mr. Dupree has violated South Carolina's Rules of Professional Conduct?  The preamble to the Rules states that “a lawyer's conduct should conform to the requirements of the law” in the lawyer’s personal affairs and that a lawyer should “demonstrate respect for the legal system and for those who serve it, including . . . public officials.” I assume that state troopers fit the definition of public official.  Biting a state trooper probably doesn't conform to the requirements of the law.  On the other hand, the preamble is not an actual rule of professional conduct.  I would be surprised if lawyers in South Carolina are disciplined for violating the preamble to the rules.

When you go beyond the preamble, things get a little trickier for Mr. DuPree if he is convicted of the charged crimes. Rule 8.4 states that is professional misconduct for a lawyer to, among other things, “commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.”  Rule 8.4 also says it is professional misconduct to commit a crime of “moral turpitude.” The rule doesn’t define “moral turpitude.” This entry on Wikipedia suggests that Mr. DuPree did not commit a crime of moral turpitude. So, I guess that settles that. After all Richard Posner has cited to Wikipedia. Or maybe not; Comment 2 to Rule 8.4 says that “offenses involving violence” are in the category of a crime of moral turpitude. I think we can agree that punching someone in the mouth and biting them are offenses involving violence.

Mr. DuPree’s prior arrest may also be relevant because the Comment notes that “a pattern of repeated offenses, even ones of minor significance” can result in a finding of misconduct.  On the other hand, the charges were dropped. 

Also, recall that Mr. DuPree’s alleged conduct took place while the trooper was trying to conduct a traffic stop. Rule 8.4 also prohibits conduct “that is prejudicial to the administration of justice.” The comments do not discuss what conduct might amount to a violation, but it would not surprise me to learn that the state trooper thinks being bitten was prejudicial to the administration of justice.

So it seems to me that the two lessons we can learn from this are: (1) do not drive in Park City, Utah; and (2) do not bite state troopers.

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