PA Chiefs of Police Association - Winter 2017-18 Bulletin Magazine

PENNSYLVANIA CHIEFS OF POLICE ASSOCIATION

WINTER 2018

Annual Conference to be held at Kalahari Resort in the Poconos! Details in this edition and our website!

Inside this Issue: Police Physical Fitness Coordinator Class PCPA Annual Education and Training Conference

Legislative Report

Lexipol Case Study: Castle Shannon (PA) Help Pennsylvanians Avoid Phone Scams

Legal Update for Law Enforcement

Thank You Blue

Technology Update

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The PCPA and many top law enforcement agencies are revolutionizing community policing with CRIMEWATCH. Are you? CRIMEWATCH is making Pennsylvania communities safer . With a total online reach surpassing 20 million, CRIMEWATCH is connecting communities and law enforcement agencies across Pennsylvania like never before. Learn how the PCPA/CRIMEWATCH partnership can make your police department more effective and the community you serve safer. Call 717.230.1845 today or visit: www.crimewatchtech.com/pcpa-info . i l li ach i illi , i o n i i i l i a s l i li . i li ctive an h i . ll 717.230.1845 today i i : www.crimewatchtech.com/pcpa-info The PCPA and many top law enforcement agencies are revolutionizing co unity policing with CRIME ATCH. Are you? CRIMEWATCH is making Pe nsylvania communities safer . With a total online reach surpassing 20 million, CRIMEWATCH is co necting communities and law enforcement agencies across Pennsylvania like never before. Learn how the PCPA/CRIMEWATCH partnership can make your police department more effective and the community you serve safer. Call 717.230.1845 today or visit: w.crimewatchtech.com/pcpa-info The PCPA and any top law enforce ent agencies are revolutionizing co unity policing with CRIME ATCH. Are you? CRIMEWATCH is making Pennsylvania communities safer . With a total online reach surpassing 20 million, CRIMEWATCH is connecting communities and law enforcement agencies across Pennsylvania like never before. Learn how the PCPA/CRIMEWATCH partnership can make your police department more effective and the community you serve safer. Call 717.230.1845 today or visit: www.crimewatchtech.com/pcpa-info The PCPA and many top law enforcement agencies are revolutionizing community policing with CRIMEWATCH. Are you? CRIMEWATCH is making Pennsylvania communities safer . With a tot l online reach surpassing 20 million, CRIMEWATCH is connecting communities and law enforcement agencies across Pennsylvania like never before. Learn how the PCPA/CRIMEWATCH partnership can make your police department more eff ctive and t e co munity you serve safer. Call 717.230.1845 today or visit: www.crimewatchtech.com/pcpa-info

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contents

WINTER 2018 BULLETIN

USPS 425940 • ISSN 0031-4404

Winter 2018 • Vol. 119; Issue 4

9 Police Physical Fitness Coordinator Class

34 32 36 30 40 10 13

PCPA 105th Annual Education and Training Conference

IACP Recap

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Lexipol Case Study: Castle Shannon (PA) Police Department Office of State Inspector General Implements New Law Enforcement Powers

Victims Compensation Assistance Program

Help Pennsylvanians Avoid and Report Phone Scams

Technology Update

ON THE COVER PCPA 105th Annual Education and Training Conference - Kalahari Resort

COLUMNS AND DEPARTMENTS 5 PCPA Executive Board and Committees 5 PCPA Staff 6 President’s Message 7 Executive Director’s Message 9 New Members 13 Welcome to Our Newest Accredited Agencies 14 Legal Update for Law Enforcement 21 Heroes Behind the Badge 22 Thank You Blue 24 Legislative Report 43 PCPA Membership Application

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Pennsylvania Chiefs of Police Association BULLETIN (ISSN 0031-4404) is published quarterly (spring, summer, fall and winter) by the Pennsylvania Chiefs of Police Association. Subscription to PCPA BULLETIN is included in PCPA annual dues. Periodicals Postage paid at Harrisburg, PA. POSTMASTER: Send address changes to PA Chiefs of Police Association BULLETIN, 3905 North Front Street, Harrisburg, PA 17110-1536. The content of the PCPA BULLETIN is to be a practical reference featuring PCPA information of specific interest and relevance to law enforcement professionals. Topics of interest include professional development, current legislative goals, news items, PCPA upcoming events and legal issues. PCPA Articles or ideas for content should be submitted to PCPA Headquarters c/o Tom Gross, 3905 North Front Street, Harrisburg, PA 17110-1536 or emailed to tgross@pachiefs.org.

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WINTER 2018 BULLETIN

executive board & committees

OFFICERS David Spotts President Director of Public Safety & Chief of Police Lower Paxton Township Scott Bohn 1st Vice President Chief of Police West Chester Borough BOARD MEMBERS James Adams – 2018 Chief of Police Upper Allen Township Royce Engler – 2020 Chief of Police Wright Township Fred Harran – 2019 Director of Public Safety Bensalem Township

PCPA STAFF Thomas Gross, Executive Director, tgross@pachiefs.org

Albert Walker 2nd Vice President Chief of Police Hanover Township John English 3rd Vice President Chief of Police Edgeworth Borough Bryan Kelly – 2019 Chief of Police Shaler Township Jason Loper – 2020 Chief of Police Fairview Township Larry Palmer – 2019 Chief of Police Palmer Township

David Steffen 4th Vice President Chief of Police Northern Lancaster Regional Bill Richendrfer Secretary Chief of Police South Centre Township James Sabath – 2020 Chief of Police Tinicum Township Michael Scott – 2018 Chief of Police Baldwin Borough

Dave DiSanti Treasurer Chief of Police Town of McCandless

Joseph Blackburn, Consulting and Member Services Manager, jblackburn@pachiefs.org Alexandra Boutselis, Administrative Assistant, alexandra@pachiefs.org Christopher Braun, Grants Management and Technology Coordinator, cjbraun@pachiefs.org Cheryl Campbell, Administrative Manager, ccampbell@pachiefs.org Dick Hammon, Accreditation Program Manager, rhammon@pachiefs.org Jerry Miller, Offender Identification Technology Program Manager, jmiller@pachiefs.org Andrea Sullivan, Administrative Assistant and Accreditation Assistant, asullivan@pachiefs.org Bill Gibson, Physical Fitness, fitcop@hotmail.com

WilliamD. Smith – 2020 Retired Chief of Police Derry Township Mark Toomey – 2018 Chief of Police Upper Providence Township

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BUDGET & PERSONNEL Chair: David Spotts, Director of Public Safety/Chief of Police, Lower Paxton Township Scott Bohn, Chief of Police, West Chester Borough Al Walker, Chief of Police, Hanover Township John English, Chief of Police, Edgeworth Borough David DiSanti, Chief of Police, Town of McCandless David Steffen, Chief of Police, Northern Lancaster County Regional Bill Richendrfer, Chief of Police, South Centre Township EDUCATION & TRAINING Chair: Scott Bohn, Chief of Police, West Chester Borough Bill Richendrfer, Chief of Police, South Centre Township Bryan Kelly, Chief of Police, Shaler Township William J. Daly, Chief of Police, Horsham Township George Swartz, Chief of Police, Spring Garden Township Dennis Walters, Lieutenant, Franklin & Marshall College PD Doug Demangone, Assistant Chief County Detective, York County DA David Mettin, Chief of Police, Slate Belt Regional Douglas Higgins, Assistant Chief of Police, Dallas Township Ashley Heiberger, Captain, Bethlehem City (Retired)

LEGISLATIVE Chair: John English, Chief of Police, Edgeworth Borough Michael Scott, Chief of Police, Baldwin Borough John Snyder, Chief of Police, Newberry Township Dean Osborne, Chief of Police, Grove City Borough Randy Cox, Chief of Police, Somerset Borough Daryl Albright, Chief County Detective, York County DA Larry Palmer, Chief of Police, Palmer Township Sean McGinley, Chief of Police, Mahoning Township Police Dave Steffen, Chief of Police, Northern Lancaster County Regional Tim Damon, Chief of Police, York Area Regional Aaron Lauth, Chief of Police, Mt. Lebanon MEMBERSHIP/BYLAWS Chair: James Adams, Chief of Police, Upper Allen Township Ken Truver, Chief of Police, Castle Shannon Borough Al Walker, Chief of Police, Hanover Township Mark Pugliese, Chief of Police, West Hempfield Township Mark Toomey, Chief of Police, Upper Providence Township Garth Warner, Chief of Police, Derry Township Beth Readler, Captain, PA State Police (Ex-officio)

NOMINATING Chair: Al Walker, Chief of Police, Hanover Township

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PRESIDENT’S MESSAGE

N o one truly understands the complexities of a chief’s job until they get to do it. As much as you or anybody else may think you fully comprehend a chief’s position, before you actually sit in the chair, you really don't. I know I certainly did not. As a chief, you must analyze your agency and community differently than you had to in any other role. Sometimes, we get bogged down with all the things we have to do as a chief and it may cause our passions to wane. In many of his speeches to executives, Tony Robbins talks about never forgetting that we GET to do our jobs. We worked hard in our professional careers to get to be a chief. That requires the passion to keep doing the right thing for the right reasons. Remember that our desire to get into this profession in the first place rested on a passion to help people. In the final analysis, we GET to do this job, we do not have to do it. In a popular beer commercial, you may have heard the spokesman telling us to “stay thirsty, my friends.” Change that to “stay passionate, my chiefs” and I think you have something. Now, two quick items about our Association. The first is radar. Senate Bill 251 has passed, and a companion radar bill will be introduced in the House Transportation Committee. PCPA has joined a coalition, including the Mayor’s Association, the District Attorney’s Association, the FOP and others, to present a unified front to get radar approved for municipal police. The reality is that any radar bill that becomes law will have restrictions. We can clearly live with the restrictions in SB 251 and are using that to limit opposition in the House. Our executive director will keep you posted on developments. The final item is our 105 th Annual Conference, June 17-20, 2018 at the Kalahari Resort. The place is fantastic! More information is available on our website. Check it out – miss this one and you will regret it. DEAR PCPA MEMBERS,

PCPA HAS JOINED A COALITION, INCLUDING THE MAYOR’S ASSOCIATION, THE DISTRICT ATTORNEY’S ASSOCIATION, THE FOP AND OTHERS, TO PRESENT A UNIFIED FRONT TO GET RADAR APPROVED FOR MUNICIPAL POLICE.

Remember that we do not have to do this job, we GET to do it! Stay passionate, my chiefs and serve your communities with honor.

Sincerely,

PCPA PRESIDENT

PA CHIEFS OF POLICE ASSOCIATION

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EXECUTIVE DIRECTOR’S MESSAGE

WINTER 2018 BULLETIN

Y ou should be receiving this magazine just after the holiday season, and we wish all of you and your friends and family a safe and peaceful New Year’s. It is also the time for reflection and resolve, so we can say that the year has been good for the Association, our members, and staff. The year ends with a slight surplus in our financial situation, and we have completed a balanced 2018 budget. We have seen new initiatives in our consulting, technology, legislative efforts, and training, and while we mourn those members and police officers lost for the year, we look forward to enhanced safety for the officers we lead and the communities we serve. It is with great excitement that we announce in this issue that our Annual Education and Training Conference will be held June 17 through 20, 2018 at the Kalahari Resorts in Pocono Manor, PA. You will see all the exciting activities and amenities in the brochure, and there is also a video link on our website. We have a terrific room rate for the conference that includes access to the largest indoor waterpark in America. This new opportunity to enjoy a great location and recreation with your family while getting to visit exhibitors, joining in up to date training and supporting our organization is one you won’t want to miss. The International Association of Chiefs of Police Conference in Philadelphia was well attended by our members and there were many who worked for and supported our candidate for fourth vice president, Fred Harran. While Superintendent Harran did not prevail, there was a new awareness and presence felt from our state. It is with great appreciation that we thank him for his efforts and all of those who contributed and worked for this campaign. There was also a great networking event hosted by our association at the conference that was attended by police from across the country and beyond. In this issue, you will also see in the legislative report that the radar bill has passed the Pennsylvania Senate again by a huge margin and that bill is now under consideration by the House Transportation Committee. The time is there for them to act on this bill, and this is progress that we have not seen before regarding this issue. While it may seem to be a never-ending battle, I can say that we are pleading for all of you to contact members of the House to support use of radar as passed by the Senate. DEAR MEMBERS,

IT IS WITH GREAT EXCITEMENT THAT WE ANNOUNCE IN THIS ISSUE THAT OUR

ANNUAL EDUCATION AND TRAINING CONFERENCE WILL BE HELD JUNE 17 THROUGH 20, 2018 AT THE KALAHARI RESORTS IN POCONO MANOR, PA.

CONTINUED ON PAGE 8

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EXECUTIVE DIRECTOR’S MESSAGE continued from page 7

Finally, I would ask that if any of you have questions or knowledge regarding legislation, membership, training, and services that you please do not hesitate to call me or a member of the staff. We believe in the valuable benefits that come from a strong association and from the shared experience of our current and former chiefs in helping to lead the police officers in our communities. From medical marijuana to body cams to crisis intervention, we have many issues facing us for 2018 and beyond. We ask that you support and participate with us as we work together in the new year.

It’s time to switch. With new pri ing options and creative deployment alternatives ( -pr mise and in the cloud) targeted specifically f r small-to-mid size departments in PA , there’s no bett r time to switch to a CODY RMS system . CODY Systems is excited to offer new pricing opportunities and adaptive licensing options for small-to-mid size agency communities across PA. Same fully-featured, reliable, ‘anywhere’ CODY RMS system. Same personal, 24/7 LIVE, PA-based technical support. Same agile CODY team of 40+ people strong dedicated to supporting you and your department.

Sincerely, TOM GROSS PCPA EXECUTIVE DIRECTOR

Call us. Or better yet, come talk to us. PA Chiefs Conference July 23-24, Booth #V1.

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PA CHIEFS OF POLICE ASSOCIATION

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February 19-23, 2018 Police Physical Fitness Coordinator Class

WINTER 2018 BULLETIN

Cost: $400 Full Certification / $100 Re-certification Location : Allentown Police Academy

Full Certification Dates: February 19-23, 2018 / 9 a.m. - 4 p.m. Re-Certification: Wednesday, February 21, 2018 / 9 a.m. - 4 p.m. *Officers should obtain a re-certification every 3 years Attire: Casual. Bring fitness clothing as well. Students receive a 45-minute lunch break each day. Visit www.pachiefs.org and click on “Trainings/Events” to register for this course. For questions, please contact Alex at alexandra@pachiefs.org or 717-236-1059 ext. 106.

Full Certification & Re-Certification is available. 40-hour course consisting of lecture and hands on training geared to- ward Police Department Fitness Coordinators and M.P.O.E.T.C Fitness Instructors. Some topics of discussion are legal issues surrounding police fitness programs and testing, safely de- veloping incumbent programs for police departments using A.C.S.M. guidelines, M.P.O.E.T.C. testing and training, strength and endurance training and testing methods, body composi- tion and basic nutrition training. Successful candidates will be certified by the Pennsylvania Chiefs of Police Association as Police Fitness Coordinators. 14 th Annual Pennsylvania Law Enforcement Accreditation Training Conference Registration is available for the 14th Annual Pennsylvania LawEnforcement Accreditation Training Conference. The Conference will be held from March 26 - 28, 2018 at the Red Lion Hotel Harrisburg Hershey, 4751 Lindle Road, Harrisburg, PA. To register, go to www.pachiefs.org.

WELCOME NEW MEMBERS

Tyler Jolley Chief of Police Patton Township ACTIVE MEMBERS

Michael Tautin Chief of Police Meadville City

Robert Coulton Chief of Police Bristol Township

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New Location! New Dates! New Opportunities!

Pennsylvania Chiefs of Police Association 105 th Annual Education & Training Conference June 17 – June 20, 2018 Kalahari Resorts and Conventions – Pocono Mountains

Adventure seekers will be amazed when they set their eyes on America’s largest indoor waterpark. Join us in the Poconos for an experience you and your family will never forget.

• 977 Guest Rooms & Suites • America’s Largest Indoor Waterpark - 220,000 square feet

• 230,000 square feet of flexible meeting space for conventions and events • Dining options include Double Cut Charcoal Grill, Sortino’s Italian Kitchen, the classic tavern-styled Brandberg, the Great Karoo Marketplace Buffet, Ivory Coast Restaurant, Felix’s Bar and The Last Bite Candy & Ice Cream Shoppe

Great getaway for you and your family on Father’s Day weekend! You and your family will never have a dull moment with the rides, slides and pools in America’s largest indoor waterpark! Play away the days with family and friends, and rest in well-appointed guestrooms and suites. Enjoy an extreme Family Entertainment Center and arcade, full-service spa, fitness center, restaurants, retail shops and much more all under one roof.

What to expect at the 2018 Conference: • Powerful Education & Training Presentations • Exciting Exhibitions • Accreditation • PCPA Annual Golf Tournament • Annual General Association Meeting • Annual Installation Banquet & Reception • Great Networking Opportunities • Live Entertainment • Hospitality Every Night • President’s Reception & Dinner • Raffle Drawings • Activities & Special Events for Spouses & Children • Great Memories! PCPA Conference information & registration is available at www.pachiefs.org. For questions, please contact: Alex at alexandra@pachiefs.org or 717-236-1059 ext. 106

3905 North Front Street Harrisburg, PA 17110 717-236-1059

250 Kalahari Boulevard Pocono Manor, PA 18349 1-877-KALAHARI

PA CHIEFS OF POLICE ASSOCIATION

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About Kalahari OneWorld Trip

WINTER 2018 BULLETIN

Rooms The African adventure doesn’t end after you dry off. Every suite at Kalahari Resorts & Conventions is decorated with imported art and artifacts, designed to inspire your imagination. Along with authenticity, your comfort is a top priority. Plush pillows and soft sheets await you after every adventure, so you’ll be invigorated and refreshed for whatever tomorrow has in store. Check out KalahariResorts.com for more room options and additional details. Continue your adventure and tune in to Kalahari TV — check out our One World Adventures, as seen on Discovery Family. Food & Beverage Although some seemeals as just something you do between waterslide runs, part of your one world experience at Kalahari Resorts & Conventions will be world-class dining. Every location features restaurants to satisfy every taste, from steakhouses to ice cream shops. You’ll never have to eat in the same spot twice, but you just might want to. Spa Another important part of your adventure is making time to relax. When you want to slow down and indulge in “you” time, our first-class spa offers services to relax and rejuvenate the mind, body and spirit. Authentically African art and artifacts create an exotic ambiance, allowing you to slip into a relaxing experience that feels a world away. Our spa offers body treatments, luxurious massages, skin care, nail care and a salon.

Everythingwe say and do at Kalahari Resorts & Conventions stems fromour love for family and our goal of creating an oasis for spending time with those you care about most. Being a family ourselves, we really took the time to develop a multigenerational adventure unique from anything else out there, which is how Africa became the source of our inspiration. Each year, our family travels there in search of African art, ideas and experiences to bring back to our resorts. We’re passionate about digging deep into the majestic lands and exploring the incredible treasures to bring the thrill, the adventure and the best of Africa home to you. Our greatest joy is discovering new ways to introduce our guests to the spirit of Africa.

Waterpark & Entertainment What makes Kalahari Resorts & Conventions the world’s coolest indoor waterpark? It’s more than just the sheer size. It’s the dedication to re-creating the thrills of Africa in experiences the whole family will love. Splash, swirl and twirl through the Tanzanian Twister, or surf the perfect wave at our FlowRider®. Slow it down a bit and float down the Lazy River, or try the Swim-Up Bar. Take the little adventureseekers to Crocodile Cove and Tiko’s Watering Hole. If you’re looking for the ultimate splash, take a ride on the water coaster. Waterpark admission is included for every registered hotel guest, and we also offer day rentals of cabanas and bungalows around the parks. All this, and much more, makes for a wet and wild adventure that your family will never forget.

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PENNSYLVANIA CHIEFS OF POLICE ASSOCIATION 105 TH ANNUAL EDUCATION AND TRAINING CONFERENCE REGISTRATION Online registration form, program and hotel information: www.pachiefs.org Name:_ ______________________________________________ Title:____________Telephone:___________________________ Agency:_ _____________________________________________ Email:______________________________________________ CONFERENCE REGISTRATION Includes registration materials, training seminars, entrance to the exhibit hall, business sessions, coffee breaks, lunch (Mon.-Wed.) & Sunday dinner/hospitality *Please note: Registration does not include hotel accommodations or Monday & Tuesday evening activities. PLEASE SELECT APPROPRIATE ATTENDEE REGISTRATION FEE: ❍ PCPA Member $275 ❍ Retired $100 ❍ Non-Member $350 ❍ One-Day $150 __________________ [specify day] ATTENDEE REGISTRATION: $ _________________ GUEST CONFERENCE REGISTRATION Includes lunch (Monday-Wednesday), entrance to exhibit hall, access to seminars & Sunday dinner/hospitality. ❍ Guest of PCPA Member $150 Name: ___________________________________ ❍ Attending Ladies Luncheon? YES or NO [please circle one] ❍ Children ages 13-17 $50 Name: ___________________________________ ❍ Attending Ladies Luncheon? YES or NO [please circle one] ❍ Children 12 & under Name: ___________________________________ ❍ [FREE Registration and Meals] ❍ Attending Ladies Luncheon? YES or NO [please circle one] GUEST REGISTRATION TOTAL: $_ _______________ ATTENDEE EVENING ACTIVITIES *SUNDAY DINNER/HOSPITALITY IS INCLUDED IN ATTENDEE & GUEST CONFERENCE REGISTRATION FEE ❍ Monday [Incoming President's Reception & Dinner Party] $75 ❍ Tuesday [Installation Banquet & Reception] $75 ❍ Combination [Monday & Tuesday Activities] $135 [discount rate] ATTENDEE MEALS TOTAL: $_ ________________ GUEST EVENING ACTIVITIES ❍ Guest Name: ___________________________________ $75 PAYMENT METHOD Check or Credit Card Check #_____________ Made Payable to PCPA $ ______________ Card #:_______________________________________________ Cardholder Name:_ ___________________________________ Exp. Date:_____________________ Security Code:___________ (Billing Address) Street:_________________________________________________________________________________________________________ City:_________________________________________________ State:____________________________ Zip:_ _____________ Sunday and Monday evening activities are buffet-style and include entertainment and open bar. Tuesday evening activities include a plated dinner, entertainment, and open bar. Please advise of any food preferences below and for which attendee or guest. ❍ Gluten-free ❍ Vegetarian ❍ No Red Meat ❍ Other Please specify:_________________________________________________________________________________________ ❍ Monday or Tuesday [please circle the day] ❍ Guest Combination [Monday & Tuesday Activities] ❍ Guest Name: ___________________________________ $135 [discount rate] GUEST MEALS TOTAL: $ _________________

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Please mail or fax completed registration form with payment to: Pennsylvania Chiefs of Police Association

FAX: 717.236.0226

3905 North Front Street Harrisburg, PA 17110

Visit www.pachiefs.org to register your guest for the ladies activities. If you have questions about the conference, please contact Alexandra at alexandra@pachiefs.org or 717-236-1059 ext.106

PA CHIEFS OF POLICE ASSOCIATION

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WELCOME TO OUR NEWEST ACCREDITED AGENCIES

IACP Recap

WINTER 2018 BULLETIN

Clarion University Clarion County Chief/Director Jason Hendershot

PA Chiefs networking event at the Loew’s Hotel

Upper Providence Township Montgomery County Chief Mark A. Toomey

Superintendent Harran meets with IACP foreign delegates and George Washington as portrayed by Chief John Godzieba of Langhorne Police Department.

Bristol Township Bucks County Chief Robert A. Coulton

Wishing you a wonderful new year filled with abundance, joy,

RE-ACCREDITED AGENCIES AT THE PLEACMEETING IN NOVEMBER:

Allentown City Lehigh County Chief Glen Dorney Northampton County Sheriff’s Northampton County Sheriff David Dalrymple Forks Township Northampton County Chief Gregory F. Dorney

and treasured moments! - PCPA Executive Board and Staff

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LEGAL UPDATE FOR LAW ENFORCEMENT

Legal Update for Law Enforcement

MERRY CHRISTMAS Merry Christmas! And I mean that. If you want to return my Christmas wishes with "Happy Holidays," I want you to know that I really appreciate it, even if what I am hearing is "Merry Christmas." Merry Christmas to all of you, your families, your squads, your departments, your companies and, as Tiny Tim once said, "God bless us, every one!" A few special shout outs of "Merry Christmas" this year, and every year: • To Mrs. Chump – you are the best. I love you. Merry Christmas, my love. Don't worry, this year the Legal Updates shout-out isn't the only thing I got you. • To the Sheepdogs. God bless the Sheepdogs - the men and women of law enforcement, the military, corrections and, yes, even the Fire Department. You run toward gunfire, terrorists, flames and felons, when others wisely run away. You offer your lives to protect us, knowing today may be the day you don’t come home. The Sheep bleat and whine, but when the Wolf comes, (and the Wolf always comes), the Sheep will demand the return of the Sheepdog, often to do violence on their behalf. Merry Christmas to you all. I thank God every day that you are out there, and I pray for your safe return home at the end of your tour. • To the troops serving far from home, and to their families awaiting their return, a Very Merry Christmas. It is hard on the family when you are away at Christmas, so thank you and Merry

Presented by the Public Entity and Civil Rights Practice Group Christopher P. Boyle, Esq., Public Entity and Civil Rights Practice Group • Phone: (215) 919-7879 E-mail: cpboyle@mdwcg.com Should you have additional inquiries, please contact Chris or: Joseph J. Santarone, Esq., Chair, Public Entity and Civil Rights Practice Group • Phone: (215) 575-2626 E-mail: jjsantarone@mdwcg.com The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. To be removed from our list of subscribers who receive these complimentary Law Enforcement updates, please contact cpboyle@mdwcg.com. If, however, you continue to receive the alerts in error, please send a note to: cpboyle@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

Christopher P. Boyle, Esq. Public Entity and Civil Rights Practice Group

Christmas. We keep the home fires burning bright for our true national treasure – the men and women of our armed forces. • To the insurance companies that retain Marshall Dennehey, thank you, and MerryChristmas! In addition to helping your insureds, you help us feed our families, and we appreciate that. Your continued loyalty to your insureds, the men and women of law enforcement, and to us, their counsel, does not go unnoticed. Merry Christmas! • To everyone who adopted a shelter animal this year, good on you! Merry Christmas! • To those who stand for the national anthem, and even those who don't, Merry Christmas! (But especially those that do. May your actions, your silent dignity, and your respect and fair treatment of those you serve 24/7 help the rest to their feet, Americans, all!)

• To those that thought The Chump was the special kind of stupid that would try to pass off a shout-out to the Mrs as a Christmas gift- Come on! Merry Christmas! Chris "the Chump" Boyle To the Sheepdogs. God bless the Sheepdogs - the men and women of law enforcement, Department. You run toward gunfire, terrorists, flames and felons, when others wisely run away. You offer your lives to protect us, knowing today may be the day you don’t come home. the military, corrections and, yes, even the Fire

PA CHIEFS OF POLICE ASSOCIATION

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LEGAL UPDATE FOR LAW ENFORCEMENT

WINTER 2018 BULLETIN

A VERY CHUMPY CHRISTMAS As is my yearly custom, whether you like it or not, and without further ado, a Very Chumpy Christmas:

Twas the night before Christmas, And all 'cross the City, All of the cops were out working, And ain't that a pity?

But with a tour still to work, And his own family sleeping, Into the crucible, Chumpy goes without weeping. For on this night or another, Because life seems so cheap, Chumpy's life could be ended, By some nefarious creep. But O Holy Night, like all others, Officers seek no pity, All Officer Chumpys Patrol through their cities. A known felon he sees, That lad's shirt is quite lumpy, Those shadows won't hide you, From Officer Chumpy. For it goes without saying, That while crime fighting is fun, Most professions would flee, From a man with a gun. But not Officer Chumpy, Toward the felon he does move, Aware of his backdrop, And into his groove. Coming swiftly upon him, He takes our guy in a fraction, Protecting both lives, With swift forceful action. But felon makes a choice, Wanting to rumble, Choosing fight to surrender, Chumpy is into the tumble. "I'll kill you, you pig" Our felon does scream, Thinking those words are effective, But only in dreams.

For our officer is trained, To ignore insults spoken, And whacks Mr. Felon, More than a token.

Because while citizens sleep, Without a care in the world,

While some blood does flow, When Felon resists, Chumpy could have shot him, And he wouldn't have missed. For violent times call for action, And occasional strikes to the head, Felon could give up, And is lucky he ain't dead.

Their safety's assured, By this vigilant crowd.

Never a thought do folks give, To the men and women in blue, Who keep the bad guys away, No matter what color are you. Into this story, For his twelfth Christmas running, Comes our Officer Chump, Daring and cunning.

For his gun is recovered, And his cocaine to boot, His lawyer will say, It's all poisonous fruit! But even if Felon, Out of it does talk, Chumpy is proud, For walking the walk.

While visions of sugarplums, Danced in some heads,

Felons and pinches, Chumpy don't dread.

For even on Christmas, Their duty does call, For cops 'cross the country, To lock up them all.

For even if a law suit, His holiday mood this does foil, Officer Chumpy is represented, By Christopher Boyle!

Chumpy has missed more Christmases, Then he dares now to count, Instead answering disturbances, Perhaps tasing some lout! Though the news dare not show it, And it will give them no pause, Chump spent this day before working, Dressed up as old Claus!

So rest easy your head, On this Christmas night, Merry Christmas to all, And keep up the fight!

Stay frosty. Stay healthy. Stay in touch. Lieutenant Christopher Boyle #125 (Ret.)

Because while celebrities and athletes, Are covered quite thoroughly,

☻♪☺♥♫☻♪☺♥♫

Cops help out at shelters, Anonymous and merrily!

CONTINUED ON PAGE 16

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LEGAL UPDATE FOR LAW ENFORCEMENT

drove the car and Kennedy was the passenger.2 1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. Lang testified she drove Kennedy to the Pittsburgh area, parked at a building adjacent to the Green Tree AT&T store, and waited in the car for Kennedy to return. After three hours she received a phone call from Kennedy telling her to open the trunk. According to her testimony, Kennedy then returned to the vehicle wearing a gray "sweat outfit," AA 576, threw bags into the trunk, got in the backseat, and instructed her to drive. Later that evening in South Rockwood, Michigan, Officer Salamas [*3] initiated a traffic stop of Lang and Kennedy's rental car for traveling 81 miles per hour in a 70 mile per hour zone. Officer Salamas approached the car and first spoke with Ms. Lang. He testified that he noticed signs of marijuana use-including glassy, bloodshot eyes and the smell of burnt marijuana. Ms. Lang admitted to having smoked marijuana earlier in the day. Officer Salamas removed her from the car and administered a field sobriety test. Ms. Lang failed the sobriety test and was arrested and placed in the back of Officer Salamas's police car. During this process a border patrol agent arrived to assist Officer Salamas with the traffic stop but did not have any direct contact with Kennedy or Ms. Lang. Officer Salamas then returned to the vehicle and ran a warrant check on Kennedy, finding three outstanding warrants. He arrested Kennedy, placed him in the border patrol officer's car, and proceeded to search the vehicle for evidence of controlled substances. He found none. A second border patrol agent arrived with a "drug dog." The dog made a couple of passes around the vehicle, but no contraband was found. 2 Kennedy's then-partner, Ms. Taylor, rented the car for herself but had given [*4] Kennedy permission to use

On November 26, 2012, a man wearing a gray sweat suit, a mask, and gloves, [*2] entered the AT&T store in Green Tree, Pennsylvania, a suburb of Pittsburgh, and pointed a handgun at the employees. Ordering them into the inventory room, the robber demanded the employees fill two blue nylon bags with cash and Apple products.

COMMENT- Stuck around for a case, did ya? Your patience shall be appropriately rewarded. Let it warm you to your cockles that Mr. Kennedy will spend this Christmas in the slam. If you are one of the supervisory/management types here, I direct your attention to the portion of the case where the Court addresses retention of video. Would be great if we could tell the Court what Pennsylvania law says about when a request for video must be made: (1) An individual who requests an audio recording or video recording made by a law enforcement agency shall, within 60 days of the date when the audio recording or video recording was made, serve a written request to the individual who is designated as the open-records officer for the law enforcement agency under section 502 of the act of February 14, 2008 (P.L.6, No.3), known as the Right- to-Know Law. Service is effective upon receipt of the written request by the open-records officer from personal delivery or certified mail with proof of service. In other words, if there is no request for it, and no lawsuit, videomay be deleted after 60 days. Quit thankin' me. You know it makes me all weak in the knees. CB United States v. Kennedy, 2017 U.S. App. LEXIS 25473 (3rd Circuit, December 18, 2017) * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

SCIRICA, Circuit Judge I.

Brandon Kennedy appeals his conviction and sentence in connection with the robbery of an AT&T store outside Pittsburgh, Pennsylvania. Kennedy was convicted of interference with commerce by robbery, 18 U.S.C. § 1951(a), being a felon in possession of a firearm, 18 U.S.C. 922(g)(1), and brandishing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii), in the Western District of Pennsylvania. He was sentenced to 155 months in prison, including a mandatory sentence of 84 months for brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). Kennedy raises constitutional challenges to his conviction and sentencing, and appeals the denial of his motion to suppress evidence. We will affirm. II.1 A. On November 26, 2012, a man wearing a gray sweat suit, amask, and gloves, [*2] entered the AT&T store in Green Tree, Pennsylvania, a suburb of Pittsburgh, andpointed a handgun at the employees. Ordering them into the inventory room, the robber demanded the employees fill two blue nylon bags with cash and Apple products. The man left the store with $67.41 in cash and thirty electronic devices. The robbery was captured on AT&T's video surveillance system. Earlier that day, Brandon Kennedy had borrowed his then-partner's rental car to drive from Michigan to the Pittsburgh area. Because Kennedy did not have a valid driver's license, his friend, Ms. Lang

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her Hertz rental car as long as he had a licensed driver to operate the car. And although he was not referenced officially on the rental agreement, Ms. Taylor testified Kennedy reimbursed her for some of the costs associated with the rental.3 Officer Salamas then called for a tow truck to remove the car from the interstate. Inpreparation for thecar's impoundment, he conducted an inventory search of the vehicle.3 He found two blue nylon bags containing 12 Apple iPads, 14 Apple iPhones, 1 Samsung phone, and a piggy bank in the trunk of the car. When asked about the items, Kennedy stated he had purchased them from a friend for $1200. According to Officer Salamas, the entirety of Lang and Kennedy's arrests was captured by a dashboard camera installed in his police car, which activates whenever the vehicle's emergency lights are in use. Upon completion of the inventory, the car was towed back to the Hertz agency in Dearborn, Michigan. Two days after the car was returned to Hertz, an employee noticed the seat was improperly aligned, lifted the seat and discovered a firearm. He immediately called the police. Officer Salamas was sent to recover the firearm. The Hertz [*5] employee testified that while they were waiting including making an oral motion on the record, to obtain video footage from the night of his arrest. All South Rockwood police cars are equipped with dashboard cameras that activate and record whenever the vehicle's emergency lights are in use. Kennedy also made numerous attempts,

for the police to arrive, Ms. Taylor and a man he later identified as Kennedy based on a photograph provided to him by the Bureau of Alcohol, Tobacco, and Firearms, came into the store and were "adamant" about wanting to remove items from the vehicle. They were told that a police investigation was in process and denied access to the vehicle. When Officer Salamas arrived, he photographed the firearm in the vehicle, and wore gloves while handling it, but did not request further tests (fingerprint, DNA). The weapon was initially retained by the South Rockwood police department and logged in as evidence, but upon discovery it had been stolen, it was turned over to the police in the jurisdictionwhere the theft had occurred. 3 Officer Salamas testified that the inventorywas conducted inaccordance with department policy at the time. Three months later, the items found during the traffic stop were identified as the items stolen in the Green Tree robbery. A grand jury returned a three- count indictment charging Kennedy with interference with commerce by robbery ("Hobbs Act robbery"), being a felon in possession of a firearm, and brandishing a firearm in [*6] furtherance of a crime of violence. B. Prior to trial, Kennedy filed several motions relevant to this appeal. Kennedy filed a motion to suppress the evidence seized in the traffic stop. He argued that although not the renter of the vehicle, he had a reasonable expectation of privacy, and therefore the police search of the rental car violated his Fourth Amendment rights. After a hearing, the District Court denied the motion to suppress. Kennedy also made numerous attempts, including making an oral motion on the record, to obtain video footage from the night of his arrest. All South Rockwood police cars are equipped with dashboard cameras that activate and record whenever the vehicle's

emergency lights are in use. When standard procedure is followed, video captured by the dashboard camera is saved to a hard drive in the car, which the officer then takes to his supervisor to download and save onto a computer at the police station. Accordingly, the South Rockwood police department should have had dashcam footage of the traffic stop and Kennedy's subsequent arrest. But in response to Kennedy's motion, the government filed a written response stating that no such footage existed. The case proceeded to trial [*7] where the government called several witnesses including Officer Salamas, his supervisor, and Ms. Lang. Officer Salamas testified about details related to the traffic stop and Kennedy's subsequent arrest, including the fact that Kennedy was wearing a gray sweat suit at the time of arrest. He also testified the dashcam in his vehicle recorded these events and that he turned the cartridge containing the video in to his supervisor according to department protocol. Officer Salamas's supervisor testified that he personally transferred the footage from Officer Salamas's dashcam system to the police station's computer, and that months later, upon realizing the data had been lost, he and the police chief attempted to recover the data by consulting the manual and technical support. Ms. Lang testified about the events on the day of the robbery, including claiming Kennedy committed the robbery of the AT&T store. The defense contested Officer Salamas's and Ms. Lang's accounts. The defense also challenged the nature of the government's investigation process, particularly the government's failure to fingerprint and DNA-test the firearm allegedly used in the robbery. See Appellant Br. at 46. During the trial [*8] and in closing argument, the government countered these claims by suggesting the defense could have itself conducted such testing. Kennedy did not object to these remarks when they were made. CONTINUED ON PAGE 18

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A jury convicted Kennedy of all three charges. The District Court imposed a sentence of 155 months in prison, which included a mandatory sentence of 84 months for brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). III. Kennedy raises four issues on appeal: (1) whether the loss or destruction of the dashcam video of his arrest violated his due process rights; (2) whether statements the prosecution made at trial unconstitutionally shifted the burden of proof from the government to the defense; (3) whether his conviction and sentence for brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c) are still valid in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015); and (4) whether the search of the rental car violated his Fourth Amendment rights. A. Dashcam and Due Process To establish a due process violation on the basis of a failure to preserve potentially exculpatory evidence, a defendant must show: (1) the potentially exculpatory nature of the evidence was apparent at the time of destruction or loss, [*9] California v. Trombetta, 467 U.S. 479, 489 (1984); (2) there is a lack of "comparable evidence by other reasonably available means," id.; and, (3) the government acted in "bad faith," Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Kennedy argues the loss of the dashcam footageof the traffic stopviolatedhis due process rights. Kennedy maintains "the video contained potentially exculpatory evidence" and would have resolved "a number of key factual disputes about the traffic stop and arrest." Appellant Br. at 32. In particular, Kennedy contends that he was identified as the robber of the AT&T store largely based on Officer Salamas's and Ms. Lang's testimony about his clothing — that he was

wearing a gray sweat suit — and that the lost dashcam footage would show that Kennedy was not wearing a sweat suit at the time of arrest. We do not find Kennedy's due process rights were violated. Even if Kennedy were able to satisfy the first two prongs,4 he has not shown bad faith on the part of the police led to the loss of the video. "[U] nless a criminal defendant can show bad faith on the part of the police, failure to preservepotentiallyuseful evidencedoes not constitute a denial of due process of law." See Youngblood, 488 U.S. at 58; see also United States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993). In requiring a showing [*10] of bad faith, the Supreme Court sought to limit due process violations "to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Youngblood, 488 U.S. at 58. Although we think it is important that every effort be made to retain dashcam footage, there is no evidence of bad faith in this case. Officer Salamas and his supervisor testified that they followed procedure in transferring and storing the video, and that upon realizing its loss, consulted the manual and sought technical support but were ultimately informed the footage was irretrievable. Kennedy does not even contend the officers intentionallydestroyed the video, but only that the loss of the footage indicates a failure to follow standard procedure, and that the attempts to recover the data were insufficient. See Appellant Br. at 40. Even if true, such errors are not equivalent to an action

taken to gain a tactical advantage over the defendant. See Youngblood, 488 U.S. at 57; Deaner, 1 F.3d at 200 ("While a showing that the government did not follow standard procedure could provide some evidence of bad faith, we have not held that an improper procedure in and of itself implies bad faith."). For these reasons, Kennedy has not established that the loss of the dashcam video violated his due process rights. 4 The exculpatory nature of the evidence in this case is also doubtful. Even if the video were to show, as Kennedy contends, he was not wearing a gray sweat suit at the time of arrest, that would not conclusively show that he was not wearing it hours [*11] earlier when the robbery actually occurred. B. Burden Shifting Kennedy contends that statements made by the prosecution during trial impermissibly shifted the burden of proof from the government to the defense. Because Kennedy did not object to these statements at trial, we review for plain error. See United States v. Olano, 507 U.S. 725, 731 (2007). "In order to demonstrate prosecutorial misconduct under a plain error standard, the review must reveal 'egregious error or a manifest miscarriage of justice.'" United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001) (quoting United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996)). Kennedy contends that twice during trial, once on direct examination and once during closing statements, the government referenced the fact that the defense did not request fingerprinting or DNA-testing on the firearm recovered

Kennedy argues the loss of the dashcam footage of the traffic stop violated his due process rights. Kennedy maintains "the video contained potentially exculpatory evidence" and would have resolved "a number of key factual disputes about the traffic stop and arrest."

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Kennedy was convicted under 18 U.S.C. § 924(c) for brandishing a firearm during and in relation to a "crime of violence." 18 U.S.C. § 924(c)(3) includes two definitions of "crime of violence," known as the "elements clause" and the "residual clause."

from the rental car, "thereby implying that the burden was on Mr. Kennedy to gather [*12] and produce evidence." Appellant Br. at 44. Kennedy further contends "the government's attempts to qualify the statement by saying the burden was not on the defendant does not negate the error." Id. at 47. The government argues it was entitled to respond to the defense's "immoderate focus on the absence of DNA and fingerprinting." Appellee Br. at 38. We find the error in this case was not "plain." The plain error exception is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)). Such circumstances are not present here. The government presented evidence linking Kennedy to the firearm, including the recovery of the stolen devices from the same rental car in which the gun was found, and the Hertz employee's testimony that Kennedy was adamant about gaining access to the vehicle before the police arrived, which the jury was free to weigh against the lack of DNA and fingerprint evidence. To the extent the prosecutor's remarks were prejudicial, they were mitigated by the prosecutor's clear statement that the burden of production was not on the defendant. Furthermore, given the evidence against Kennedy, it is unlikely that these comments, [*13] standing alone would have "affected the outcome of the district court proceedings." Olano, 507 U.S. at 734. Accordingly, we do not find egregious circumstances amounting to plain error and this challenge fails. C. Crime of Violence Kennedy was convicted under 18 U.S.C. § 924(c) for brandishing a firearm during and in relation to a "crime of violence." 18 U.S.C. § 924(c)(3) includes two definitions of "crime of violence," known as the "elements clause" and the "residual clause." The "elements clause" encompasses crimes that "ha[ve] as

an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). The "residual clause" encompasses crimes that "by [their] nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B). Kennedy argues: (1) Hobbs Act robbery is not a crime of violence under the elements clause, and (2) that the residual clause is void for vagueness in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). We hold a conviction for Hobbs Act robbery when concurrent with a conviction for brandishing a firearm is a crime of violence under the elements clause, and therefore do not need to reach Kennedy's residual clause [*14] argument. In his opening brief, Kennedy assumed the court's analysis of the predicate offenses under the "elements clause" of § 924(c) would mirror the "categorical approach" taken under theArmedCareer Criminal Act, allowing the court to look only at the elements of the crime, not the facts of the specific case. But after his brief was filed, we held in United States v. Robinson, 844 F.3d 137, 142 (3d Cir. 2016), cert. denied, S. Ct., 2017 WL 3008904 (Oct. 2, 2017), that the rationales for applying the categorical approach were not present when the predicate offense was tried contemporaneously before the same court. See id. at 141-42. We adopted instead an alternative approach for determiningwhich predicate offenses qualify as crimes of violence under the "elements clause." See id.

Our decision in Robinson is on point. Robinson involved a defendant concurrently tried and convicted of Hobbs Act robbery and brandishing a firearm in furtherance of a crime of violence under § 924(c). See id. at 140. And we concluded "when . . . the two offenses, robbery and brandishing a gun, have been tried together and the jury has reached a guilty verdict on both offenses, the Hobbs Act robbery qualifies as a crime of violence under the 'elements clause' of 18 U.S.C. § 924(c)(3) (A)." Id. at 139. Because the same jury that convicted Robinson under § 924(c) found beyond a reasonable doubt that [*15] he had brandished a firearm in the act of committing that offense, we reasoned that the court could consider the contemporaneous conviction as "shed[ding] light on the means by which the predicate offense was committed." Id. at 143. "The defendant suffers no prejudice because the court is not finding any new facts which are not of record in the case before it." Id. "The question, therefore, is not 'is Hobbs Act robbery a crime of violence?' but rather 'is Hobbs Act robbery committed while brandishing a firearm a crime of violence?'" Id. at 144. And we concluded, "[t]he answer to this question must be yes." Id. This case is nearly identical to Robinson. The question is once again, "is Hobbs Act robbery committed while brandishing a firearm a crime of violence?" The answer remains yes. Because we conclude Kennedy's Hobbs Act robbery constitutes a crime of violence as defined in the elements clause of § 924(c), we decline to reach Kennedy's challenge to the constitutionality of the residual clause in light of Johnson.

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