Thomas G. Smith made a fundamental error: he assumed that as an American he had a right to use blunt language to criticize the police.
Legally, he was right. Practically, he was wrong.
Thomas G. Smith made a fundamental error: he assumed that as an American he had a right to use blunt language to criticize the police.
Legally, he was right. Practically, he was wrong.
Back in November I wrote about David Eckert of New Mexico. As you may recall, City of Deming police officers stopped Eckert for running a stop sign, and together with Hidalgo County Sheriff's Deputies concluded that there was probable cause to think that he was smuggling drugs in his anus. As I wrote back then, that conclusion was based on the following fanciful chain of supposition:
That his hands were shaking and he avoided eye contact during a traffic stop;
He refused to consent to a search of his person;
He stood erect with his legs together;
No drugs were found in his car or in a pat-down of him (police pat-downs for weapons often turn up drugs, which mysteriously feel like dangerous weapons when touched by police, or which are immediately identifiable as drugs when touched by police);
A drug dog (with no information given about the dog's training or qualifications or success rate) "alerted" to his car seat (though no drugs were found in his car); and
An unidentified Hidalgo County K-9 officer asserted, without any specificity, that Eckert had previously hidden drugs in his anus.
Based on those "facts," and with the approval of Deputy District Attorney Daniel Dougherty, the police sought and obtained a warrant to search Mr. Eckert's anus. The following rape and torture — and I use those words deliberately and advisedly — followed:
1. Eckert's abdominal area was x-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then x-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.
No. No narcotics were found.
Are there consequences to that sort of conduct? Sort of. Eckert has settled with the City of Deming, the County of Hidalgo, Officers Bobby Orosco and Robert Chavez, and Deputies David Arredondo, Patrick Green and Robert Rodriguez. He has agreed to dismiss his lawsuit against them. he will be paid $1.6 million — it's not clear how that is apportioned between the City and the County, but you can assume that New Mexico taxpayers, not the law enforcement officers who engaged in a conspiracy to commit torture and rape, will foot the bill.
Deputy District Attorney Daniel Dougherty has a motion to dismiss pending. He will probably win it. Prosecutorial immunity is most likely broad enough, under current law, to cover approving a transparently ridiculous warrant application seeking to torture and rape a man based on fluff. Nice work if you can get it and you are in to that sort of thing, I suppose.
Doctor Robert Wilcox of the Gila Medical Center — who played the "bring out the gimp" role in this rape and torture scenario — has also filed a motion to dismiss, which in part argues that he is entitled to immunity because he was following orders — the orders of the police and the judicially approved search warrant. We'll see how that works out for him.
The $1.6 million was offered and accepted quite swiftly. That's a substantial amount of money for a case not involving death or dismemberment, especially during times when local governments don't have a lot of money. It suggests to me that the City and County thought they had a terrible case. It makes me even more suspicious that the key "fact" of the warrant application — that some unspecified deputy told the affiant that Mr. Eckert had smuggled drugs in his anus at some unspecified time before — was knowingly fabricated by somebody in the chain.
This case sickened me. But I can't say that it surprised me. The only thing out of it that would surprise me is if any of the individual police officers or sheriff's deputies faced any genuine significant consequences arising from it.
Whether or not you agree with my legal criticism of the sufficiency of the warrant application, bear this in mind: because of the mindset promoted by the Great War on Drugs, these cops, this deputy DA, this judge, and this doctor all reached the same moral conclusion. Their moral conclusion was that because they posited that this man had drugs in his anus — necessarily the small amount that could fit there — it was necessary and appropriate and acceptable forcibly and repeatedly to probe his anus, forcibly to give him an enema, to x-ray him, to sedate him, and to perform a colonoscopy on him under sedation. That's the mindset of the Great War on Drugs. It's perverted and despicable. It's subhuman. Do you support it?
Back in September, several NYPD officers were confronted with an agitated mentally ill man in Times Square. When — according to the officers — they believed he was reaching for a weapon, they fired three shots with their handguns, missing the agitated man entirely and hitting two citizen bystanders.
Police said officers saw a man on foot weaving erratically through traffic and sometimes blocking vehicles. After approaching him, police said, the man reached into his pocket as if grabbing a weapon, and two officers fired a total of three shots. They missed him but struck a 54-year-old woman in the right knee and a grazed a 35-year-old woman in the buttocks, police said.
The women were taken to hospitals, where they both were listed in stable condition, according to police. Neither had injuries considered life threatening, police said.
The man was taken into custody after a police sergeant subdued him with a Taser. No weapons were found on him.
Police said the 35-year-old suspect was taken to Bellevue Hospital, where he was in stable condition. They described him as "emotionally disturbed."
As long as you ignore the fact that the shooting victims were innocent bystanders, hitting two people with three shots represents unusual excellence in marksmanship for the NYPD, matching another recent incident in which skilled NYPD officers were able to hit their target and nine bystanders with only 16 bullets. Overall the NYPD usually requires about 331 rounds to hit 54 targets, of which 14 will be innocent bystanders, 24 will be dogs, and 16 will be people the NYPD was actually aiming at. Statistically, if you aren't a dog, it is slightly more dangerous to be the person the NYPD was shooting at than a bystander (16 people out of 331 shots for intended targets for a 4.8% hit rate vs. 14 people out of 331 shots for bystanders, a 4.2% hit rate.) NYPD has a better success rate for other weapons, and certain factors, like shooting unarmed people in the back, tend to increase hit rates.
When NYPD officers fire 331 shots, and hit 16 targeted people, 24 dogs, but also 14 bystanders, there is a problem.
That problem is the people who are making the NYPD think they need to open fire.
That's why the District Attorney has indicted Glenn Broadnax, the mentally ill homeless man who created the disturbance in Times Square back in September.
Initially Mr. Broadnax was arrested on misdemeanor charges of menacing, drug possession and resisting arrest. But the Manhattan district attorney’s office persuaded a grand jury to charge Mr. Broadnax with assault, a felony carrying a maximum sentence of 25 years. Specifically, the nine-count indictment unsealed on Wednesday said Mr. Broadnax “recklessly engaged in conduct which created a grave risk of death.”
“The defendant is the one that created the situation that injured innocent bystanders,” said an assistant district attorney, Shannon Lucey.
This is perfectly fair. Look, Mr. Broadnax, you know how the NYPD is. They love the people of New York. They just . . . they just get stressed out and angry sometimes. Why do you have to make them angry like that? Look what you made them do now. Look what you made them do.
Carlos Miller runs the indispensable blog Photography Is Not A Crime, which documents the struggle between citizen-photographers and the cops and government officials who would like to prevent them from taking pictures of things. That's a trend we've talked about here as well — whether it's cops arresting citizens on the pretense that their cell phones might be futuristic weapons or on the pretense that they are "interfering" with police business (even when they are a safe distance away on their own property). In addition, we've talked about the ongoing legal struggle against laws that purport to prohibit citizens from recording cops engaged in their duties in public, and about how cops are attempting to suppress publication of recordings of their public activities.
Miller's campaign has gotten him charged with crimes before. Now it's happened again — because he published the contact information of the Boston Police Department's Public Affairs Officer.
So you've got kids. Maybe they are teens, maybe they are young adults living at home. They're a pain in the ass. They're disrespectful and won't follow instructions. They break curfew. They break house rules. They may be mixed up in drugs. They've been arrested multiple times, and you've had to bail them out. You worry that they aren't getting any better. You worry they are getting worse. Sometimes you're a little afraid of them.
You've also got a neighbor. Some people think he's swell — brave, with the right values, someone who serves the community. But he's violent. He hits people. He hits people a lot. He gets away with it, because of his connections. He's shot someone and gotten away with it, because everyone thinks that if he shot them it was probably for his protection — and because his friends help cover up for him. He talks about how he needs to hit people and shoot people because it's a dangerous world and that's what you have to do to protect yourself in it. His perception of risk might be different than a normal person's perception of risk. He also talks about how they had it coming. He gets angry if you ask him about it, or suggest that maybe he likes hitting people a little too much.
Would you ask your neighbor to help discipline your kids?
Would you make your kids go live with your neighbor, in the hopes it would straighten them out?
You probably wouldn't.
But you might call the cops on your kids. Or you might decide that they need to go to jail to be taught a lesson.
Data point: 22-year-old in jail for missing a court date on marijuana possession dies from allergic reaction as guards watch and accuse him of faking; the government stonewalls, lies about the incident, and deceptively edits the tape of it.
God help me if one of my kids is troubled, or uncontrollable, or addicted. I don't know how I will handle it. I don't know how other parents can handle it. I don't blame or judge parents who have called the police, or decided that what their kid needs is a stint in jail to learn a lesson. That's what our culture teaches us we should do.
I pray they don't learn that they have asked a violent, abusive, cruelly indifferent neighbor for help.
P.S. Also, think twice about calling your violent, abusive neighbor for help with, say, a prowler.
In the comments to Ken's excellent post on the recent repeated digital anal rape of a citizen by government employees, commenter
@Ryan took me to task:
On Nov 7 at 7:51 AM you wrote:
Prenda et all have no more harmed the reputation of "all lawyers" than OJ Simpson harmed the reputation of "all African Americans" or Bernie Madoff harmed the reputation of "all Jews".
People are individuals. Pick any set and you'll find sinners and saints.
Then at 4:54 PM on Nov 7, you said:
Dogs are people, but LEOs – by pinning on a badge and pledging that they'll enforce the law – even when the law says that innocent people should be jailed or dogs can be shot – have opted out of the human race.
Fuck them all, and may they die slow horrible syphilitic deaths.
Which makes me wonder how the eminently reasonable Clark of this morning got replaced and when. The juxtaposition is astounding.
It's remarkable that you can, in the span of less than 12 hours, move from a statement that assigns blame to people as individuals and not the profession they belong to, to the polar opposite, just because the latter happens to spout hate and vitriol toward a group you vehemently dislike, while the former forgives people who are in a profession that you at least partially respect because of a few individuals you know who are a part of it.
This is a good point, and it deserves an answer.
My response has two prongs:
1) the inherent evilness of the full job description of law enforcement
2) the overwhelming default culture of law enforcement
I already addressed the first prong in an earlier comment, where I said:
It is wrong to discriminate against Blacks or Jews or Hispanics or Gays because people are born into those groups and do not pledge any sort of allegiance to them, nor does their inclusion in a group show that they have opted into the dominant ethical pattern.
Is it right to discriminate against Jihadis or SS members or KKK members or Bloods or Crips because (a) people consciously opt into said group, and (b) do so knowing their norms and and behaviors.
The War on Americans Who Use Drugs has been going on for decades. It is a very rare LEO who pinned on the badge before the War.
In 1944 I'd hold no ill will (or not much) to a German who was drafted…but if a German signed up to go throw Jews out of their homes, then screw him.
In 2013 I hold no ill will (or not much) to an American who is drafted into the American police…but if a man or woman signs up to go shoot dogs and digitally rape anuses, then screw him. He's bought what Screwtape is selling.
tl;dr: The job description is evil. Only evil people sign up for an evil job.
The second prong of my argument is the culture of law enforcement.
Let's assume that that 5% of humans are power-mad thugs, psychopaths, whatever you want to call them.
A priori we can assume that these people are distributed evenly throughout professions…but perhaps that's not true. Maybe the field of lawyering attracts these people. I don't think so, but say it's true, and 10% of lawyers are Prenda-rific and routinely lie, cheat, steal, etc. 10% is still a minority of all lawyers, and there are no network effects that turn 10% into 90%. The opposite is true: lawyers are split into factions and they work against each other all the time, not just in the courtroom but in the marketplace. The adversarial nature of the profession means that any bad acting lawyer is always risking exposure from others.
Law enforcement culture, on the other hand, does have network effects. Cops work together as a team, whether they're in the same squad car, the same department, or just in the same country. The culture is deeply insular with special ID cards and bumper stickers promising special treatment, and a culture that routinely and harshly punishes anyone who breaks from the party line. This is a system almost custom designed to let moral and procedural rot run rampant. (Recall that as much as cops like to wash their hands of a fellow cop who was caught doing a crime by calling him "one bad apple", the full phrase is "one bad apple spoils the bunch".)
Whites have sinners and saints.
Blacks have sinners and saints.
Oregonians, Texans, and New Yorkers have sinners and saints.
Accountants, hairdressers, and coal miners have sinners and saints.
Law Enforcement, though, is unlike all of these – the job description is organized bullying, and that (a) attracts psychopaths and (b) converts non-psychopaths into – at worst – psychopaths, and – at best – into those who merely tolerate, absolve, and cover up for the psychopaths. For fun, run down the Hare Psychopathy Checklist and compare the bullet points to the typical cop's personality. Glib, grandiose, lying, manipulative, remorseless, lacking empathy, needing stimulation, parasitic lifestyle … the list goes on and on.
The police are a monopolistic organized gang that – as an emergent social entity – delights in violence, repression, and control, and is made up of members who are resemble it in miniature. It is no more morally complicated to fear, disdain, and hate people who choose to join the police than it is to fear, disdain, and hate people who choose to join the KKK.
That said, one should hate the sin and not the sinner.
I'm trying, Ringo. I'm trying real hard.
UPDATE: The always awesome Maggie McNeill points me to an old blog post of hers that bears on this topic:
If a cop is tasked with enforcing a law he knows to be immoral, it is his duty as a moral man to refuse that order even if it means his job. If he agrees with an immoral law then he is also immoral, and if he enforces a law he knows to be wrong even more so. The law of the land in Nazi-era Germany was for Jews and other “undesirables” to be sent to concentration camps, and the maltreatment of the prisoners was encouraged and even ordered by those in charge; any German soldier or policeman enforcing those laws was the exact moral equivalent of any soldier or policeman under any other democratically-elected government enforcing the laws enacted by that regime. Either “I was only following orders” is a valid defense, or it isn’t; either we agree that hired enforcers are absolved from responsibility because “they’re just doing their jobs”, or we don’t. You can’t have it both ways, and sometimes Nazi analogies are entirely appropriate.
By now you've probably heard the story of David Eckert. He's the New Mexico man who was stopped by police, detained based on a suspicion he was hiding drugs in his rectum, and subjected to increasingly intrusive anal probing and eventually sedation and a colonoscopy. You might have read about him at Simple Justice or Defending People or BoingBoing or Techdirt or Reason or any of the other places that reported on the ghastly episode.
I waited to write about it until I could get a copy of the search warrant affidavit — helpfully provided by my friend Kevin Underhill of the absolutely essential legal blog Lowering the Bar — so that I could address this question: what quantum of proof is required in New Mexico for the police and compliant doctors to rape and torture a man?
Yesterday a police chief in South Carolina thoughtfully reminded us of what police think of us and our "rights" and our "viewpoints."
CPD SEIZES APPROXIMATELY $40K WORTH OF MARIJAUNA FROM HOME
Interim Police Chief Ruben Santiago announces the arrest of a man accused of having approximately $40K of marijuana inside a Columbia apartment.
Not everybody on Facebook was a fan. Chief Santiago pushed right back against criticism:
In case you can't see that image, a guy named Bradley says "Maybe u should arrest the people shooting people in 5 points instead of worrying about a stoner that's not bothering anyone. It'll be legal here one day anyway." Someone using the Columbia Police Department Facebook account replies:
@Brandon whitmer, we have arrested all the violent offenders in Five points. Thank you for sharing your views and giving us reasonable suspicion to believe you might be a criminal, we will work on finding you.
Now, you're probably thinking this is some web-lackey shooting his mouth off, not the position of the Columbia, South Carolina Police Department, or the position of Interim Chief Ruben Santiago. Well, if that's the case, the web lackey was willing to double down upon being criticized:
In case you can't see that image, the comment says this:
This is Interim Chief Santiago posting. I was just notified that one of my staff members deleted my post. I put everyone on notice that if you advocate for the use of illegal substances in the City of Columbia then it's reasonable to believe that you MIGHT also be involved in that particular activity, threat? [sic] Why would someone feel threaten [sic] if you are not doing anything wrong? Apply the same concept to gang activity or gang members. You can have gang tattoos and advocate that life style, but that only makes me suspicious of them, I can't do anything until they commit a crime. So feel free to express yourself, and I will continue to express myself and what we stand for. I am always open to hearing how our citizens feel like we can be effective in fighting crime.
I have written the Columbia Police Department's Public Information Officer for comment about whether that was, in fact, Interim Chief Santiago, and whether his views represent the views of the department.
So: if that is Chief Santiago, the police chief of a city of about 125,000 people, thinks that his department should "find you" and investigate you if you support the legalization of marijuana or oppose the ruinous, amoral War on Drugs. Notice the collection of cop tropes in the second response: (1) the thug's dance of first threatening to "find you" and then halfway backing off from it, (2) the "why worry if you have nothing to hide" routine, (3) the suggestion that advocating against the War on Drugs creates reasonable suspicion to investigate you — bearing in mind that "reasonable suspicion" is a legal term referring to the quantum of proof that supports cops, for instance, stopping and frisking you, and (4) the statement that the cops are always open to hearing from citizens after threatening to come find a citizen for criticizing them.
Interim Chief Santiago seems mad. And why shouldn't he? Commenter Brandon wants to take bread out of his mouth. The Glorious War on Drugs helps people of modest ability like Ruben Santiago find employment. It provides massive funding. It provides cops with fun toys, like tanks. It allows them to use violence against citizens with a high degree of confidence they will get away with it. And you want to take that away from them? Of course they're going to "work on finding you."
This shouldn't be a surprise. We already know that police think that it's evidence of criminal intent justifying a search warrant if you talk about your constitutional rights. Why wouldn't it also be evidence of a crime that you exercise your right to free speech to oppose government policies?
Ruben Santiago may wish to become the permanent Chief of Police of Columbia, South Carolina rather than just the Interim Chief. Will city leaders consider, in evaluating his application, that he is apparently someone who is easily agitated and unprofessional on social media in a way that may be used as evidence in civil rights lawsuits against the city?
Santiago, by the way, has filed a defamation lawsuit against a police captain who accused him of a scheme to plant evidence.
Rutherford [Santiago's lawyer] says Santiago is determined to clear his name and filing a defamation lawsuit is the only way to do that.
"The only thing left for Chief Santiago to do is this; is to file a lawsuit to make sure everybody knows this is not something he's going to let pass by, this is not something he's going to let it go," said Rutherford. "He's very serious about protecting his reputation and the reputation of the city of Columbia Police Department"
Protip: threatening to "come find" citizens who criticize the War on Drugs and advocate marijuana legalization, and suggesting that their political views give you "reasonable suspicion" against them, is not the optimal way to protect your reputation or the reputation of the department.
Thanks to tipster Jim for the links.
Edited to add: I've also written Interim Chief Santiago's lawyer seeking comment.
UPDATE WITH CONFIRMATION: I received the following statement from the Columbia, SC Police Department's Public Information Officer:
Chief Santiago did write those two posts. I believe the original comment was misconstrued. I appreciate you reaching out to CPD.
Chief was trying to say that he puts would-be-criminals on notice — if you commit a crime or plan to commit one, CPD will work hard to investigate and press charges according to the law.
It’s easy for social media posts to be misunderstood. The man who was so-called threatened openly admitted that he was not offended and appreciated the work of CPD.
Maybe now that the man said that they won't try to go "find" him.
That'll teach the bitch to show a bit more respect, amiright? After all she
put both hands on the door frame and refused to oops, video evidence contradicts the police report. Still, she should watch that smart mouth of hers.
In fairness to police, this is a one-time thing; it's not like cops make a habit of pushing mouthy people into concrete walls head-first to teach them extrajudicial lessons.
Q: How many cops does it take to throw a suspect down a flight of stairs?
A: None; he tripped.
Over at Reason, Ed Krayewski has a story about a particularly outrageous Catch-22 at the intersection of police lawlessness and modern free speech law.
NYPD Officer Craig Matthews complained about an illegal quota system for stops and arrests. As anyone familiar with NYPD culture could predict, he experienced retaliation from his superiors for doing so. When he sued, the NYPD hit him with an argument that's outrageous but very likely legally correct: it's your job to report misconduct, so the First Amendment doesn't prohibit us from retaliating against you for doing so.
The Association of Lawless Broomstick-Fetishist Brown-Person-Groping Can't-Shoot-Straight Thugs has a point. Because their employer is the government, public employees have limited First Amendment rights to be free of employer retaliation for their speech. But in in Garcetti v. Ceballos the Supreme Court said that right protects speech on matters of public concern unless the speech is part of a job duty:
We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Thus in Garcetti the Court said a Deputy DA had no right to be free of retaliation for pointing out perjury in an arrest warrant application because doing so was his job. I explained how this doctrine works — and how courts have made an exception for professors at public colleges — in this post.
The result is that an entity like the NYPD can argue that its officers are required by their job to report unlawful activity by their superiors and fellow officers, and that therefore their act of reporting such misconduct enjoys no First Amendment protection. They may still enjoy protection under state or federal whistleblower laws, but not the First Amendment. (Whistleblower laws have their own issues, a subject for another post).
The district court's opinion dismissing Officer Matthews' complaint is here. The opinion is very likely correct under current Supreme Court precedent. I submit that it fails to confront adequately one massive problem with this doctrine: a public employer can claim it has a formal policy requiring public employees to report misconduct, while having an actual real-life policy of firing, retaliating against, and even brutalizing whistleblowers. Under this doctrine, as currently applied, the public employer's lie about its policy will protect it from First Amendment claims by whistleblowers. Whatever alleged obligation to report wrongdoing the NYPD may impose on its officers, functionally it has an unwritten doctrine of abusing whistleblowers. That doctrine is demonstrated in practice by case after case after case after case.
But Garcetti apparently permits the NYPD to indulge in a culture of lawlessness while claiming devotion to the law.
Recently a man named Randall encountered a man named Jonathan in the early hours of the morning in Charlotte, North Carolina. Randall had a gun; Jonathan did not. Jonathan may have been agitated and confused, possibly from just having crashed his car. Their encounter concluded with Randall firing twelve times at Jonathan at close range and hitting him ten times, killing him. Neither man had a criminal record.
Prosecutors have charged Randall with voluntary manslaughter, a fairly light charge for shooting an unarmed man ten times. But Randall's supporters are outraged. They say Randall was charged too quickly, that an investigation of a man like Randall shooting an unarmed man like Jonathan ten times usually takes months. They say that charging Randall represents a rush to judgment. They say that charging Randall will chill and intimidate men like him out and about in the world from discharging their firearms in situations like the late-night encounter in Charlotte, North Carolina. They say that Randall didn't give up his constitutional rights when he walked into a police station, but he's being treated like he did. They're saying that Randall isn't getting a "fair shake" by being so quickly charged with manslaughter for shooting an unarmed man ten times. They're saying that when there's a shooting the best evidence comes out slowly, over time. They're saying Randall is presumed innocent and should be treated as such.
Are Randall's friends civil rights activists? Are they defense attorneys? Are they part of some community used to unfair prosecutions?
They're police. See, Randall is a cop. His supporters are other cops, and police unions.
“People are presumed innocent until proven guilty,” said James Pasco Jr., the national executive director of the Fraternal Order of Police, “and police officers are no exception. You don’t check your civil rights at the station house door.”
He said most departments took their time with investigations because they wanted to be thorough.
“They go very carefully. One thing to remember in the case of a shooting, generally speaking, the most accurate information will come out over a period of time,” Mr. Pasco said.
“Another thing,” he continued, “is that participants in a shooting — whether they were the shooter, whether they were shot or whether they were just there — all tend to suffer to a degree from post-traumatic shock for at least a short period of time. And that’s why the best and most accurate information is usually gathered from these folks 48 to 72 hours after the event.”
Mr. Pasco is right.
Everyone is presumed innocent until proven guilty. Nobody checks their civil rights at the station house door — whether they enter there with a badge, or in handcuffs. Sometimes the most accurate information about a crime doesn't come out in the first few hours. A rush to judgment can lead to wrong assumptions, and the criminal justice system can stubbornly cling to those assumptions rather than change course once charges have been filed.
The criminal justice system ignores those ideas every day.
Will Mr. Pasco be articulating those principles next time someone is accused of assault on a police officer? Will he be articulating them next time anyone who is not a cop is accused of anything? Will any of Officer Randall Kerrick's supporters tout the presumption of innocence, or the fallibility of witnesses, or equality before the law next time they discuss a defendant who doesn't wear a badge?
Or have they discovered these principles because Officer Kerrick is one of them, and therefore entitled to things that the rest of us are not?
Randall Kerrick should receive due process of law. But he doesn't deserve it because he's a cop. Deserve's got nothing to do with it. He should receive due process of law because we should extend it to everyone, good and bad and checkered, cop and civilian. He should not receive more, or less, due process just because the thin blue line forms behind him.
Nearly four years ago Patrick wrote about Karla Rush, a police officer terminated by the Oakland Police Department. You may recall that Officer Rush felt she shouldn't have been fired for false statements in search warrant applications:
Rush said she had never lied. Instead, she said, she had been trained to rely on templates when filing the affidavits, and the templates were based on the assumption that substances submitted to the crime lab would test positive.
Officer Rush's arguments were ultimately rejected:
Karla Rush, an officer based in East Oakland, faced especially severe charges. Of the 40 search warrants she had filed between March of 2007 and August 2008, 39 were fraudulent. Rush claimed that her misconduct was the result of poor training, but an arbitrator rejected her assertion, saying, "telling the truth is not a matter of training," according to court documents.
But isn't this America? Isn't Karla Rush an American? Isn't America a place where people like Carlos Danger get second chances? Yes. Yes it is. So Karla Rush — fired for multiple fraudulent search warrant applications — is employed as a law enforcement officer again.
Maybe this isn't a shock to you. The criminal justice system decides to rely upon (and often conceal the misconduct of) dirty cops all the time. Just look at cops like Armando Saldate, Jr. in Arizona. Karla Rush probably got re-hired by some ultra-conservative small town department in some red state, right?
Although internal affairs recommended firing twelve officers, only four ended up losing their jobs: Rush, Francisco Martinez, John Kelly, and William Burke. Of those four, three have since been rehired by Alameda County police agencies: Burke was reinstated by OPD through arbitration in 2010, and both Rush and Kelly are now UC Berkeley police officers.
Yep. That's right. UC Berkeley — the hobgoblin of conservatives, the famously nutty liberal enclave — re-hired a police officer fired for filing fraudulent search warrants. After all, what's important in hiring a police officer?
UCPD Lieutenant Eric Tejada said the department had no reservations about hiring Rush and Kelly. "They have both been outstanding officers, and they bring a lot of knowledge and experience with them," Tejada said. He added that Rush and Kelly received glowing recommendations from several OPD commanders — although the department itself did not recommend them for the job. "So looking at their work history as a whole, and not just that one incident, we felt they deserved the opportunity to be a part of the team here," Tejada said.
Yeah! 39 fraudulent warrant applications is really "just one incident." Why should that outweigh Officer Rush's excellence in getting the bad guys?
Now, citizen, if you're concerned that misconduct is too easily forgiven and ignored in our society, take heart: the vast majority of people who get in serious trouble experience life-altering consequences that prevents them from ever getting similar jobs again, even after any draconian criminal sentences. Felony convictions, for instance, reliably keep people out of most positions of responsibility, not to mention housing, loans, youth activities, etc. So don't worry: the class of people who can commit grave misconduct with few long-term consequences is usually limited to law enforcement and, you know, banks and stuff.
We want to be safe, right? So why should it bother us that, even in hotbeds of "liberalism," law enforcement misconduct generates little more than a shrug? Why should we be concerned that the "left" — once reliably protective of the rights of the accused — is now often a mouthpiece for "law and order" and contemptuous of the rights of the accused?
After all, how much trouble could a campus police officer cause?
Section 230 — which we have lauded here before — is crucial to freedom of expression on the internet. It gives broad immunity (with the exception of copyright and federal criminal law) to blogs, forums, news services, and other web sites for comments or other content left by visitors. Thanks to Section 230, I can't be sued for what you say in the comments to this post. Absent Section 230, I would have to police my comments for potential defamation and potential violation of the laws of a thousand jurisdictions.
As the ACLU reports, several Attorneys General want to weaken Section 230 to create an exception for any federal or state statute. Their justification, not surprisingly, is Think of the Children! — specifically, the children who are victims of sex trafficking. The state Attorneys General do not explain why it is necessary to create an exception encompassing all state laws on whatever subject in order to address child sex trafficking.
What could possibly go wrong?
I mean, sure, this means that the proprietors of web sites can be prosecuted if one of their commenters says something that local police construe as a threat — as in the case of Justin Carter, prosecuted and jailed and stuck in solitary confinement for a stupid but clearly non-serious rhetorical flourish about an online game.
And, sure, some police departments think that satire is "cyberstalking," like the Renton Police Department, which sought search warrants to investigate cartoons making fun of the police. Sure, under the language sought by the Attorneys General, the police could pursue the hosts of such satire as well as the content-creators.
And sure, all sorts of local jurisdictions — and even states — have vague, broad laws forbidding speech, such as speech by electronic means that "annoys, ridicules, and disparages." Sure, blogs and forums and other sites could become criminally liable under those laws for the actions of their commenters.
And sure, some states have criminal defamation statutes, and on occasion some prosecutors have fallen so far as to obtain search warrants to investigate clearly satirical blogs. Sure, the Attorneys General plan would make that more likely.
Sure, some cops have a very broad view of what constitutes "harassment" and a willingness to use their power to threaten people who, for instance, leave negative Yelp reviews. Sure, the Attorneys General plan would let them threaten web sites as well as users.
And sure, courts across the country occasionally impose patently unconstitutional protective orders forbidding people from writing about specified subjects at all; under the regime proposed by the Attorneys General, web sites might be held liable for contempt along with their users if they allowed a user to address a subject in violation of such an abusive order.
And sure, under the Attorneys General plan, I will have to evaluate each demand or threat from local authorities across the United States, evaluate the laws of distant and unfamiliar jurisdictions, consider how judges and juries of other states might view me of my commenters leave disfavored speech, and risk financial ruin. Sure, the most rational response will often be to simply yield to criminal threats — whether from police or even from individuals threatening to make reports to police — rather than face criminal consequences to provide a forum for free expression. Sure, risk-adverse companies will be particularly likely to yield to threats.
But surely we can trust state and local law enforcement to wield this power responsibly, right?
I mean, sure, prosecutors are largely immune to any consequences for misconduct, and police use whatever tools available to them to attack expression they don't like. But we can trust law enforcement.
Saturday was date night, and Katrina and I went to the local over-the-top-luxurious movie theater, where you sit in recliners and swaddle yourself in soft blankets and order food and drink from the full menu to be brought to you in your seats.3
Now, if I am presented with an opportunity for someone to bring me Chimay whilst I recline and watch a movie, I view it as morally wrong to miss it. Am I to be ungracious? No.
The luxury and decent food and excellent beer didn't really feel right this time, though. They felt deeply incongruous and increasingly uncomfortable. That's because we were at the theater to see Fruitvale Station, a harrowing but stunningly acted story of the last twenty-four hours in the life of Oscar Grant, a young man fatally shot in the back by a Bay Area Rapid Transit officer as he lay prone and unarmed on the ground of the train station of that name. That officer — Johannes Mehserle — was later convicted of involuntary manslaughter. I previously wrote about the law governing the charges against him and how they applied to his defense that he accidentally grabbed his pistol rather than his taser.
The movie starts with actual footage of the shooting, then flashes back to the last day of Grant's life, plagued with trouble but centered on his girlfriend and daughter. It's powerful, and moving, it's amazingly well-acted, and I recommend it wholeheartedly, with the reservation that it is like a kick in the gut. The film's treatment of the fatal moment allows varying interpretations, which might arise from your preconceived notions based on media coverage or political or social views: did Mehserle lose control and execute an unarmed man in a moment of rage? Did he make a terrible, reckless error reflecting bad judgment and bad training in a moment of chaos? The movie has things to say about how police act towards young men like Grant, but it doesn't force the ultimate conclusion.
The movie has been deservedly well-reviewed. One review caught my eye, because it says things that, as a criminal defense attorney, I hear a lot. At Variety, Geoff Berkshire says:
Yet even if every word of Coogler’s account of the last day in Grant’s life held up under close scrutiny, the film would still ring false in its relentlessly positive portrayal of its subject.
. . . .
Consequently, “Fruitvale” piles on examples of Grant as a loving boyfriend to Sophina (Melonie Diaz), son to Wanda (Octavia Spencer) and father to Tatiana (Ariana Neal), with only fleeting glimpses of his foibles. Sophina remains angry about a recent affair Oscar had (though she has to forgive him, because he’s so darn sweet). He also spent time in prison (for reasons never made clear), has a temper that occasionally flares up and was fired from his grocery store job for missing work. Yet there’s never any question that by the time we meet him, all of this dubious stuff is firmly in Oscar’s past, and he’s dedicated himself to pursuing a better life.
Berkshire seems to feel that filmmaker Ryan Coogler is cheating by depicting Oscar Grant as a loving father and fond if imperfect boyfriend and son, without portraying him sufficiently as — to be blunt — a criminal.
Geoff Berkshire didn't see the same movie I saw. I saw a movie in which Michael B. Jordan convincingly portrays a young man who has recently cheated on his loving and patient girlfriend and is somewhat defiant about it, a young man who knows his choices threaten to make his daughter miserable, a young man who still flirts with drugs, a young man who can be cruel to his devoted mother, a young man who has a hot temper and poor self-control and a capacity for violence. The film shows a young man who went to prison and was immersed in its brutal culture.
But the movie shows other aspects of Oscar Grant, too, and that may be what is upsetting Berkshire. The film shows Oscar Grant is all those things, but still others at the same time. The film shows that Grant genuinely loves his girlfriend even though he wrongs her. The film shows he is devoted to his daughter even as he's made choices that separates them. The film shows he loves his mother and regrets the pain he's caused her. The film shows that he can be kind to strangers and form connections with people.
We're used to stories that depict criminals as protagonists, like The Godfather or The Wire or Boardwalk Empire. The culture accepts — with occasional grumbling — fictional characters being more than one thing at once, made of good and bad parts. But when it comes to a real human being like Oscar Grant, our culture tends to be scornful of complexity and nuance. Berkshire's review suggests that Oscar Grant is a criminal, and shouldn't be portrayed otherwise. (It's entirely possible that somewhere someone is writing angrily that Oscar Grant is a victim and shouldn't be portrayed otherwise.) But Oscar Grant, like all of us, was more than one thing. Oscar Grant, a real live human being, could make terrible decisions that threatened his relationship with his daughter and still love her fiercely. Oscar Grant could love his mother and break her heart. Oscar Grant could commit crimes but be kind to strangers. If we're honest about human beings, we can depict one side without diminishing the other side.
Society has a stake in depicting people like Oscar Grant — people who have gone to prison, people who have committed crimes — as all one thing. Society has a reason to get anxious, as Berkshire seems to, when the Oscar Grants of the world are depicted as people like us with good and bad parts, people to whom we can relate. Society runs on treating many people as less than human. Society depends on the social compact not falling apart when a young man is shot to death as he lays prone and unarmed on the pavement. Society depends on us accepting the fact that we jail people at a greater rate than anyone on the planet. Society depends on us accepting, as we are more and more enthusiastic about jailing people, that we are less and less interested in paying for adequate legal representation or adequate jail conditions. Society depends on us shrugging at brutality. Society relies on us not recognizing the essential humanity of the targets of the state's power. Depicting people who commit crimes as one-dimensional criminals supports that social compact; depicting them as people — people more like us than unlike us — threatens it.4
Society can't function as presently constituted if we recognize the Oscar Grants of the world (or for that matter the Johannes Mehserles) as a human beings, and act accordingly. Fruitvale Station is not subversive because it suggests Oscar Grant's death was a grave injustice; it's subversive because it suggests his life had value in the first place.
We all know that cops are tasked to enforce criminal laws, occasionally shooting dogs or naked, confused, autistic 11-year-olds on the side of the road as circumstances require.
But did you know they enforce civil law too?
Well, at least some of them do. Some police think that it is their role to intervene in civil disputes, throwing their weight — the weight of gun belts and squad cars and the freedom to beat you senseless with a high probability of complete impunity — behind one side or the other.
That's what Joseph Grabko of Pennsylvania found out this month, when a police officer threatened him at the behest of a local pizza place.