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Legal View with Ashleigh Banfield

A Look at the Use of Deadly Force; London Woman Encourages Terror through Twitter; Concerns over Planes Colliding with Drones

Aired November 28, 2014 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(COMMERCIAL BREAK)

PAMELA BROWN, CNN HOST: The shooting death of Michael Brown, this summer, is re-igniting (ph) an old debate. When is it okay for police to shoot to kill, and when they do we should determine if they were justified in firing their gun?

In a moment I'm going to talk to a father who knows the Brown family's pain all too well. His 21-year-old son Michael Bell was shot and killed by a police in Kenosha, Wisconsim 10 years ago and during traffic stopped. The young son man was intoxicated.

I want you watch this. It's filed from a report by CNN's Kyung Lah.

(BEGIN VIDEOCLIP)

KYUNG LAH, CNN REPORTER: The officer and Bell walked out of the view of the police dash cam, but you can still hear what's happening.

UNIDENTIFIED MALE: I know my rights.

UNIDENTIFIED MALE: We're going to do some field sobriety test.

LAH: As the scuffle escalates...

UNIDENTIFIED MALE: Hands behind your back now! Hands behind you back right now!

LAH: Bell is handcuffed but still fighting. Then, in front of his mother and sister, a distinct sound.

(END VIDEOCLIP)

BROWN: Very disturbing. Within 48 hours of that shooting, the Kenosha Police Department cleared themselves of any wrongdoing ruling the killing as justifiable. Michael's father, retired Air Force Lieutenant Colonel Michael Bell, joins us now from Chicago.

Michael, nice to have you on the show with us, I'm really interested to hear your perspective. After your son was killed, you got the law changed in Wisconsin so now all police shootings are investigated by an independent panel.

If you would, tell us how it's had an impact in your state and what makes this so important? MICHAEL BELL, SON KILLED BY POLICE 10 YEARS AGO: Well, thank you for having me in this show, and happy early birthday to you.

BROWN: Thank you.

BELL: I'd like to go right into that.

BROWN: Thank you very much.

BELL: It's very important. It took 10 years. I've always said that if a blonde hair blue-eyed boy can be killed under a spotlight and his father is retired Air Force Lieutenant Colonel, we can't get this law done, then nobody can get it done.

And what we did is we make sure that the police departments cannot investigate themselves and then take that debt (ph) that they collect and hand it to a DA and allow them to make a decision whether there was fault.

BROWN: So Michael, let's focus on what happen in Ferguson. What do you think about the DA in Ferguson running the grand jury in the Michael Brown shooting? I was just reading an article that you wrote for POLITICO. And you made it clear that you believe it's sort of conflict of interest.

BELL: I was absolutely appalled. I didn't notice in the beginning but after years of observing this, I recognized that DAs provide cover for police officers and police officers then make sure that this DA stays in power. Any type of mishap in that relationship affects the DA's elect ability. I don't think MacKowick (ph) should have on that case at all.

BROWN: So tell us a little bit more about how the Wisconsin law works, and would've have the DA out of the investigation, had the similar law been in placed in Missouri.

BELL: Well, there are three parts to the original law. We only got the second part passed. But the part that we had passed is this -- is that and when the department is involved -- a loss of life that investigators whether they're law enforcement or civilian investigators, they come in, they complete the review, they complete a report, and they hand that report to the DA. The DA makes the decision whether to charge criminal charges or not and if not, then all the information regarding that person's death is given to the family so that the family always understands what occurred.

BROWN: So the DA still plays a role then in the process?

BELL: It plays a role in the process now. Now, I know that legislators are going to be going back for -- the additional pardon that is they have an -- kind of a review of that information before it's given to the DA. We're trying to provide additional checks and balances.

BROWN: I want to look over the numbers here really for both sides, Michael, because it's important to keep this all in perspective. The U.S. doesn't keep a reliable data on police shootings but it does keep counting the number of officers killed each year and let's take a look here.

In 2013, 27 police officers were killed as a result of a felony act. According to an independent watchdog group, in just three weeks between the Michael Brown shooting in August 9th and September 1st of this year, police shot and killed 83 in addition to Brown.

What does that tell you, Michael?

BELL: Well, the first thing that really appalled me was that we don't keep any accrue data. You know, we can keep accrue data on police -- on the populations. We can keep accrue data on how much -- how many (inaudible) entering our great lakes. But you're telling me that every time a government employee kills a citizen that we don't know about it? And we can legislate a solution but how can we legislate a solution if we're not aware of the trends? That's what that tells me. It creates an atmosphere of mistrust from the get-go.

BROWN: And as a country, we don't trust people agencies to investigate themselves so what do you think makes it different for police departments or what is different for police departments?

BELL: Well, the problem is as an air force pilot, I know that if I was ever involved in a mishap, I wouldn't want to be reviewed by a librarian, a dentist, a lawyer. I want to be reviewed by other pilots and law enforcement feels that it should be reviewed by law enforcement. But the problem is, is law enforcement has an institutional stake in the process.

The third part of our legislation asked for retired people that were familiar with law -- with the law like criminal justice professors and so forth, a retired judge, a retired DA, and law enforcement be on this panel to review this because they don't have an institutional stake in the process.

BROWN: OK. Michael Bell, thank you very much. We appreciate you coming on, sharing your story with us. And please, let us know what developments come about with what you're pushing for in your state and really nationally. We appreciate it. And thanks for the birthday wishes.

BELL: Thank you, take care.

BROWN: And moving on to other news. If you threaten someone directly, you'll probably get in trouble. But if you do it on Facebook, that's the case the Supreme Court is about to tackle. The legal view on that up next.

(COMMERCIAL BREAK)

BROWN: Authorities in Britain have charged a London woman with encouraging terror through Twitter. Allegedly for almost a year, the woman tweeted out links of terror propaganda along with her own thoughts. And though she was originally arrested back in June, charges came only last night, no explanations for the delay. And in this country, too, freedom of speech has limits. But where exactly are they in the age of social media? We'll know in the next few months, because the first case in point to make a way to the high court in the land will be argued on Monday. It was brought by a Pennsylvania man who spent three years in prison for posting Facebook threats against amongst other in elementary school, an FBI agent, and his now ex-wife.

Here is what Anthony Elonis wrote in 2010, when his wife moved out, took his kids and got a court order against him, "Fold up your court order and put it in your pocket. It is thick enough to stop a bullet?" A separate post about shooting up a kindergarten class part of visit from the FBI.

After which Elonis posted this, "Little agent ladies stood so close. Too k all the strength I had not to turn the B-word ghost pull my knife, flick my wrist and slit her throat." Midwin Charles, Paul Callan, help me out here.

First of all, I just -- I spoke to the attorney for Mr. Elonis. And I asked him "What would you try to accomplish with these messages?" And he said, "This was therapeutic for him, cathartic. This was like what a rapper does with rap songs, blowing off steam."

And so, what should matter here is the intent not how a reasonable person would respond to the messages. Paul, what do you think?

PAUL CALLAN, CNN LEGAL ANALYST: Well, I think, you know, this is sort where art (ph) meets the first amendment meets the criminal law, and it's in evolving area.

The New Jersey Supreme Court, 6-0, wouldn't allow violent rap lyrics to be used in a murder case where someone had been convicted when the jury was shown the actual violent lyrics that he had written. Now, we go to the Supreme Court to get a national rule on this.

Generally, if the expression was intended by the person in charged with the crime to put fear in another person and a reasonable person hearing what was posted or seeing what was posted would be fearful, that would constitute criminal conduct as supposed to artistic expression.

So I think you need intent on one side, and how a reasonable person would react on the other side before it can even be considered criminal.

MIDWIN CHARLES, CRIMINAL DEFENSE ATTORNEY: Paul's right. I mean, the current Supreme Court case right now that sort of has set a standard in this area is Virginia versus black in which the Supreme Court had helped, that the KKK burning a flag during a march or a protestation is not necessarily a criminal or intimidation act and it's free speech, but how the KKK burned that flag on the backyard or the front porch of someone's home then that could be seen as a sort of criminal act of intimidating that person.

Suppose, right, in the sense of how close we attenuated is this sort of act of free speech to the person. But one of the reasons why I think the Supreme Court is taking this case is that the law reports cannot seem to agree on what the standard is.

I'm a former federal law clerk. I clerk for the Circuit Court of Appeals. And one of the things that you'll always see is when the law on circuits don't agree, the Supreme Court will take the case in order to try to decide the matter.

CALLAN: They've been struggling with this, too. It's really interesting, there's a case, it goes back all the way to Lyndon Johnson's days during the Vietnam War where somebody who didn't want to fight in Vietnam said, "If they force me to pickup a gun, the first person who's going to be in the sites is Lyndon Johnson."

Now, he was charged with a crime, threatening the president of the United States. And, you know, the Supreme Court threw that out, and said "That's free political expression and protected."

BROWN: And the court has really got a great link, the high court to protect the first amendment and free speech.

CALLAN: Yes.

BROWN: So inline of that, how do you think they're going to take on and rule on this particular case, especially dealing with the social media nexus (ph), because...

CHARLES: Right.

BROWN: ... because that's very different for this event.

CHARLES: Right. And I think that is -- you know, I think the Supreme Court taking this case is actually good because what they are trying to do is sort of had the law catch up with technology and what is now current.

Elliot Rodger, you know, as you know had made some very disparaging comments on YouTube and Facebook and he went on to subsequently stab two of his roommates and then went on a shooting spree at the University Santa Barbara. So that's one of the reasons why I think the Supreme Court is taking this case. But I'd be interested to see how they come out with it.

BROWN: But on the flipside, there had been other people who were prosecuted for writing things on their page that they say, "Look, this is just -- I was just pulling a prank," you know.

CALLAN: Well, that's what I think. I don't think you're going to see the Supreme Court hand down an absolute rule on this. You can't use what's posted on Facebook in a criminal case. I think the Supreme Court if they're being sensible, will say, you have to look at it in the context of the crime and what happened. Is it relevant, would a reasonable person think that this expression on Facebook was directly linked to the crime? Well, let a jury decide.

BROWN: Well... CALLAN: A jury can hear the arguments. It's art (ph), it's free expression. I didn't mean I was going to kill somebody, or they can reject it, that's why we have juries.

BROWN: And in this case, the jury decided to convict him, sentence him to 44 months behind bars. But context is interesting here because this is a woman who, initially she was the one who seemingly was the target of his messages and they were going through a divorce, a separation. So, how important is context when you're dealing with messages like this, Midwin?

CHARLES: Well, I think that's a good question. I think context is important. When you look at two couples who were divorcing I think a lot of people can say that sometimes those divorces are contentious and people cannot seem to agree.

So, I don't know. I mean, Paul makes a point that he's not sure that Supreme Court is going to come out with an absolute rule but they sort of have to put the gauntlet down and make a decision because people are being heard after things are being posted on social media.

CALLAN: If somebody wrote a letter saying, you know, he was going to kill his wife and the police found that. Certainly, that would be usable and evidence in a murder case of his intent. Now, why should it be any different because instead of writing on a piece of paper he puts it on Facebook? I mean, the way we express our -- people don't write letters anymore, they post it on Facebook. So, why should it be protected just because it's there?

BROWN: But then I was interviewing the attorney and he said, "Look at rappers like Eminem, he would rap about, you know, similar things...

CALLAN: Yeah. But he is selling his music, that's the difference, yeah.

BROWN: OK. So, but that -- I'm just pointing that out is...

CALLAN: And I think if Eminem killed his wife and he outlined in a rap song exactly how he was going to do it, I say that's admissible in evidence too.

BROWN: And on the flipside, Don Verrilli who is representing the government compared this to a bomb threat. He said, you know, "No matter if it's harmless if you call in bomb threat, look at what it causes, look at the repercussions from that." So it will be a really interesting case come Monday, we're going to hear oral arguments on that. Thank very much Paul Callan and Midwin Charles.

And you've probably seen someone flying a drone. They look like fun, right? Kind of like a remote controlled plane or helicopter. But could they cause plane crashes? The disturbing details on a few close calls right after this.

(COMMERCIAL BREAK)

BROWN: In case pilots don't have enough to worry about while flying, add collisions with drones to the list. As drone prices continue to drop and more people buy them, the number of pilots reporting near misses is on the rise.

Now the FAA is trying to figure out new ways to regulate them. Here's CNN's Tom Foreman.

TOM FOREMAN, CNN REPORTER: New York's busy airport appears to be the epicenter of the dangerous encounters involving unmanned aerial vehicle or UAVs. The alarming new FAA report says recently three aircraft on the same day reported a very close call with the UAV near LaGuardia. Another pilot said he almost hit one, yet another spotted one just below his right wing and two commercial jets almost struck a trash can size UAV 5,000 feet in the air.

The war is rising coast to coast. Remotely operated aircraft of unexpectedly popped up over government buildings, national parks, sport stadiums, highways, and even at the airfield where Air Force One is based. With the FAA working up new rules to cover commercial UAV operation, the report could set the stage for tough regulations and Mark Dombroff says it should. He's an attorney who specializes in aviation issues.

MARK DOMBROFF, AVIATION ATTORNEY: If nothing is done we're going to have a mid-air collision which a lot of people lose their lives.

FOREMAN: Enthusiasts have imagined a brave new world in which UAVs deliver medicine, chase down criminals and even drop-off purchases from retailers.

ERIC MALONEY, DRONE ENTHUSIAST: The industry is really growing. It's an exciting time for drones. I mean there's a lot of new technology coming out every month.

FOREMAN: But federal approval for any commercial use has been extremely rare. When a man use the UAV to shoot commercial video in Virginia in 2011, the FAA fine him $10,000. And the National Transportation Safety Board just confirms the agency is right to do that.

So up until now a lot of people have operated this gray space saying it's more like a model if not real like an airplane, but that gray space is going away.

DOMBROFF: You may not agree with them but the FAA has defined that it's black and white. You either a hobbyist, recreational user or you're not.

FOREMAN: Amateurs will still likely to able to fly their UAV within existing rules but the new commercial regulations expected in weeks will almost certainly launch a new debate about government power private rights and public safety. Tom Foreman, CNN, Washington.

(COMMERCIAL BREAK)

BROWN: The (inaudible) turn frantic in New York after a snow plow accidentally buried two boys and no one notice for hours. Dramatic cellphone video capture the scene when neighbors and police located the boys and dug them out. Look at the story from Christine Sloan in our affiliate WCBS.

UNIDENTIFIED FEMALE: Trapped in snowbank two little babies.

CHRISTINE SLOAN, WCBS REPORTER: This iPhone video were shot is police and neighbors rescue two children buried overnight under a pile of snow in Newburgh, New York.

BRANDON ROLA, NEWBURGH, NEW YORK POLICE: From what I understand a (inaudible) was blocking and took the attention where these children are at. And somebody heard their muffle sounds of the kinds under the snow, and they would dig them out and the people are screaming for shovels and they dug these young boys out (inaudible) 10 years old unfortunately they were still -- they were alive and well and -- police got a big round of applause.

SLOAN: One of the boys J.J. Martinez. His mother let Facebook friends know how he and his cousin were found just after 2:00 in the morning and they're well.

Takaiya Stevens' son plays with J.J. She shot the video and helped to the boys get out.

TAKAIYA STEVENS, SHOT RESCUE VIDEO: All I see was the feet. When I got over there the little feet was hanging out of the thing. He was shaking and his mother was like "He's all right. He's there. He's there." He was like "Mommy, mommy."

SLOAN: The boys were playing in this parking lot across from one of their homes when they let missing just after 6:00 o'clock last night, that is when a frantic search started by police and residents. Their guess a snow plow has something to do with it.

STEVENS: When I left at 5:30, the snow plow was out here. He started plowing already. So, he probably -- I don't know. He probably didn't see them or something because my son was just with them.

SLOAN: J.J.'s mom posted on Facebook that her son is still in the hospital after his ordeal in this parking lot but is doing just fine. She thanked police for her Thanksgiving miracle.

In Newburgh, New York, Christine Sloan, CBS 2 News.

BROWN: Well, thank you so much for watching. "WOLF" with Brianna Keilar, starts now.