Law Enforcement

In 2009, when a Fairfax, Virginia police officer shot and killed an unarmed man, the police department refused to identify the officer who pulled the trigger. When reporter Michael Pope asked a few questions, Fairfax County Police Public Information Officer Mary Ann Jennings became obstinate:

When asked why her department won’t even release the name of the officer who shot Masters, Jennings got more obtuse. “What does the name of an officer give the public in terms of information and disclosure?” Jennings asked in reply, presumably rhetorically. “I’d be curious to know why they want the name of an officer.”

Contrast Officer Jennings’ response with the more recent shooting of Tri Truong Le by a San Jose SWAT team, as reported in the Mercury News the day after it happened:

The terrifying abduction of an 11-year-old girl began with a kidnapper’s gunshots in the early-morning hours Friday as she was grabbed from her San Jose home. It ended almost five miles away and 12 hours later with a single shot, when a SWAT officer killed 42-year-old Tri Truong Le, the alleged kidnapper, during a gunbattle in a narrow staircase.

The girl, who was in the kidnapper’s arms when the gunbattle started, was miraculously almost unharmed and recovering from the trauma at a hospital, police said.

The officer who fired the fatal head shot was identified by police Friday night as Mauricio Jimenez.

This is what it looks like like when the police have nothing to hide. A violent criminal kidnapped a little girl, and a daring and skilled police officer killed him to rescue her. It was a good day for the San Jose police, and officer Jimenez did something that his department is rightly proud of. This is what it looks like when the police are not afraid of the truth.

I haven’t had much to say about the Occupy Wall Street protests, mostly because I don’t understand the Occupy Wall Street protests. I think that’s because the protesters don’t understand them either. That’s okay, because building a consensus is a process. and it takes time. There’s nothing wrong with that. Here at Windypundit however, I like to talk about ideas and policies, and I can’t discuss what I can’t understand.

Which brings me to this, which I understand all too well:

UC-Davis-Lt.JohnPike-PepperSpray.jpg

That’s UC Davis police Lt. John Pike pepper spraying some students who are just sitting on peacefully on the public sidewalk at their school.

Some people have tried to explain this by pointing out that the protesters were blocking the sidewalk and had to be removed, but that doesn’t justify using pepper spray. Police have been arresting peaceful protesters forever, and the way to do it is for 2 to 4 police officers to approach each protester, pick him up, and carry him off to the wagon for transport.

What officer Pike did is a chemical variation on what is sometime euphemistically called “pain compliance,” which means hurting people until they do what you want. When used to control a violently resisting offender, it’s a legitimate escalation step in a police use-of-force policy. When used against non-violent people sitting on the ground, it makes you look like a dickhead.

I wouldn’t normally have written anything about this incident because, well, nobody out there seems to care. I don’t mean you, my faithful readers, I know you care. But somehow the news media and the American public don’t seem to mind that our police forces are routinely doing things that make them indistinguishable from violent street gangs.

Oddly, I was moved to write by, of all people, Brian Tannebaum, who actually took a break from his usual rants about legal marketing to write an impassioned call for a national conversation on law enforcement. That Brian would sound impassioned about anything as nebulous as a “national conversation” is a sign that his cynicism has been shaken.

It’s almost a daily exercise, watching video of law enforcement conduct that raises eyebrows. The responses are always the same: 1) The video doesn’t tell the entire story, 2) We don’t understand the “adrenaline” that causes police officers to beat the living crap out of suspects after they are securely in custody, and 3) So what, the guy’s a criminal anyway.

We as criminal defense lawyers, civil libertarians, and yes, even some prosecutors and judges, watch these videos and know that there is a large segment of the country that finds this conduct just “part of the job.”

And then something like this pops up.

Brian, in turn, seems to have been inspired by Alexis Madrigal’s brilliant commentary in the Atlantic, in which he points out that Pike isn’t necessarily an innately evil person. He was probably following orders:

Then came the massive and much-disputed 1999 WTO protests. Negotiated management was seen to have totally failed and it cost the police chief his job and helped knock the mayor from office. “It can be reasonably argued that these protests, and the experiences of the Seattle Police Department in trying to manage them, have had a more profound effect on modern policing than any other single event prior to 9/11,” former Chicago police officer and Western Illinois professor Todd Lough argued.

No one wanted to be Seattle and police departments around the country began to change. “In Chicago for example, paramilitary gear such as that worn by the Seattle Police was quickly acquired and distributed to officers,” Lough continued, “and the use of force policy was amended to allow for the pepper spraying of passive resistors under certain circumstances.”

[Emphasis Madrigal’s.]

Madrigal also points to criminologist Alex Vitale’s observation that police are using vague laws to re-cast peaceful protest as a crime:

Consider what has precipitated the vast majority of the disorderly conduct arrests in this movement: using a megaphone, writing on the sidewalk with chalk, marching in the street (and Brooklyn Bridge), standing in line at a bank to close an account (a financial boycott, in essence) and occupying a park after its closing. These are all peaceful forms of political expression. To the police, however, they are all disorderly conduct.

I do think, however, that Madrigal goes a little too easy on Pike:

And while it’s his finger pulling the trigger, the police system is what put him in the position to be standing in front of those students. I am sure that he is a man like me, and he didn’t become a cop to shoot history majors with pepper spray. But the current policing paradigm requires that students get shot in the eyes with a chemical weapon if they resist, however peaceably. Someone has to do it.

No. No one has to do it. The police are not a military organization; there is no criminal penalty for disobeying orders. If Pike had refused to pepper spray those kids, the worst thing that could have happened is that he would have lost his job. If he had any doubts about what he was doing, he decided to ignore them in favor of a paycheck. He made a choice, and he deserves to suffer the consequences of his choice.

Mark Bennett suggests what those consequences might be:

Neither should John Pike be let off scot-free. Fired? Perhaps, though if he loses his job it will be a political move, intended to make people forget the institutional–and, indeed, societal–failures that allowed him to so cavalierly injure peaceful protesters.

But firing is too good for John Pike. John Pike should spend the rest of his life, until he publicly repents, feeling insecure. And so should every officer who followed him at UC-Davis.

They should not be able to go out to eat without knowing whether their food will be spat in, or worse.

Their babysitters should be chronically unavailable.

They should not be able to get their oil changed without knowing whether their drain plugs will be left loose, or park without knowing if they are going to get another door ding.

And the thing is, it seems likely that, contrary to Madrigal’s speculation, John Pike may not be a man like the rest of us. From Boing Boing (by way of Scott Greenfield), comes an interview with one of the students:

W. tells Boing Boing that Pike sprayed them at close range with military-grade pepper spray, in a punitive manner. Pike knew the students by name from Thursday night when they “occupied” a campus plaza. The students offered Pike food and coffee and chatted with him and other officers while setting up tents…

“Move or we’re going to shoot you,” Pike is reported to have yelled at one student right before delivering pepper spray. Then, turning to his fellow officers and brandishing the can in the air, “Don’t worry, I’m going to spray these kids down.”

From this account, Pike apparently treated those kids like they were little more than a smudge to be wiped away. He sounds like a psychopath. Of course, there’s no way to make that diagnosis from one incident like this, but this is definitely a data point in its favor.

Radley Balko has for years been referring to things like this as isolated incidents. That’s more or less what every badgelicking police apologist calls them, as if everything is alright with the police except for the occasional isolated incidents by a few bad cops. But these isolated incidents keep happening over and over and over. Part of the problem, I think, is that we have given the police far too much power over us. That would be unwise even if the police were all honest and decent people, but it’s downright suicidal given that some police officers are dangerous sociopaths.

Dealing with this reality is one of the central challenges of creating a system of government: The people we put in charge need to have access to enough violent power to perform the basic function of protecting us, but there need to be restraints on that power–legal, political, procedural–in order to limit the damage in those instances when, inevitably, evil people gain control of it.

We probably should have done something to stop this long ago, before it got so bad, but for God’s sake let’s do something now, before it gets any worse. In the unlikely event anybody heeds Brian’s call for a national conversation on law enforcement, this is one of the things we need to be talking about.

Scott Greenfield at Simple Justice notes Radley Balko’s report on yet another report about police shooting an unarmed civilian during a raid and then worries that we’re seeing too many reports of this kind of thing:

I similarly take note of these incidents from time to time, having done so more frequently in the past than I have lately. Lately, these “isolated incidents” haven’t made it to the front page of SJ. It’s not because they aren’t worthy, or important, but that it plays into one of my greatest fears about police misconduct and abuse. My fear is that it happens with such regularity that we quickly become inured to it.

Too many brutal videos of police needlessly beating people and lying about it turn an outrage into the new normal.

I understand what he means: Watch too many videos of police brutality, read too many accounts of cops behaving like feckless thugs, and you could easily become desensitized it all. And you need a certain level of outrage if you hope to change things.

Nevertheless, I think we need to keep publicizing these incidents. You see, I think most of the people in this country don’t pay much attention to these kinds of issues. Scott Greenfield and Radley Balko and I are specialists, and so are our readers. We’re all aware to some degree that the abuse of police power has reached dangerous levels, and for us these stories are major news events that bounce around our corner of the blogosphere for days.

But out in the real world, out in the mainstream media, nobody is paying attention. Ourside of our little niche of the blogosphere, nobody noticed when Siobhan Reynalds was silenced by an unethical prosecutor, or when a SWAT team killed a 68-year-old grandfather of twelve in Massachusetts, or when a judge ignored the First Amendment to rule that we have no right to record public activities of on-duty cops, or when Oakland County, Michigan cops raided a medical marijuana dispensary and took all the money from the wallets and purses of everyone present, or even when Sal Culosi’s family got a 2 million dollar settlement from the murdering cops of Fairfax County, Virginia.

While we run some risk of becoming desensitized by the unending stream of incidents, I think the bigger problem is that a far larger number of people haven’t become aware of them. So I think we need to keep publicizing them, even at the risk of making ourselve numb to the horror, so that more people will become aware.

Personally, however, my biggest problem with all these incidents is not desensitization but despair. Consider that the first time I heard about a few police departments using in rem civil forfeiture to take suspected drug dealers’ money and property without a criminal trial, I was outraged. Whenever I read about it, or even thought about it, I could feel my body becoming pumped up with adrenaline as I seethed with anger. I thought that as soon as word about this outrageously illegal and unjust practice got out, heads would roll. And honestly, I wouldn’t have been terribly upset if the perpetrators of civil forfeiture had been literally beheaded by angry mobs. I was that enraged by it.

That was twenty years ago.

Nowadays, civil forfeiture is routinely used for even minor crimes by almost every law enforcement entity in the country. Pull your car over to the curb to solicit a street prostitute, and the government can seize your car. You can lose your house because your kid has a pot plant hidden in the basement. You can end up paying a multi-thousand dollar penalty without due process.

And almost nobody cares.

In twenty years, nothing I’ve done, nothing I’ve said, nothing I’ve written has made any difference. Civil forfeiture happens so often that I could write an article a day about the injustice of it all, and I’d never run out of incidents. But what would be the point? Is there any chance it would really do any good? Sometimes, I just can’t see how I could possibly make a difference.

So for me, that’s the risk of publicizing so many incidents of police abuse. Not that we will become desensitized to the injustice, but that we will fall into despair at the size of the task we are facing.

Still, nothing will change if no one talks about the problem.