Category Archives: Police

Don’t Let the Tamir Rice Grand Jury Distract From the Goal

It’s been over a year since Cleveland police officer Timothy Loehmann shot and killed 12-year old Tamir Rice, and now a Cuyahoga County grand jury has decided not to indict him for it, thus proving that grand juries will also let the ham sandwich walk, if that’s what the prosecutor wants.

Make no mistake, this whole process was a sham. Start with the fact that it took a year to get the case to the grand jury. Most homicide investigations are over in a few days, and even if the police needed to interview more witnesses and process more evidence, this case could still have been in front of a grand jury months ago.

Then there’s the unusually non-accusatory presentation to the grand jury. Prosecutor Timothy J. McGinty says he recommended to the jury that they not charge Loehmann for the killing, which brings up the question of why he wasted so much time and effort presenting the case to the grand jury in the first place. My guess is that he didn’t want to charge Officer Loehmann, but he didn’t want to take all the heat for that decision, so he steered to grand jury to where he wanted it to go. Loehmann killed Tamir Rice, and the Cuyahoga County prosecutor’s office made sure he wasn’t charged for it.

Even though the process was fake, however, I’m not sure the end result was wrong. That Tamir Rice was killed is a tragedy, but it should take more than a tragedy to make a crime. There ought to be some element of intent. If Officer Loehmann had thought to himself “It’s just a kid with a pellet gun, but I’ll bet I can use that as an excuse so I can finally get to kill someone,” he would be a murderer. And proving intent doesn’t require mind reading, because a jury is allowed to draw inferences. They could decide, for example, that it was so obvious Tamir Rice was a kid with a toy that Loehmann’s shooting of him can only be explained as intentional murder.

Even if it’s not intentional murder, there could be lesser crimes that Loehmann  might have been charged with. Depending on local law, he might be found to have behaved recklessly or negligently in failing to identify Tamir Rice as a child with a pellet gun. He might have jumped to unreasonable conclusions and shot too soon, and that could lead to some sort of criminal charge, much the way you could be charged for killing someone in a car accident if the accident was the result of your intentionally engaging in dangerous driving, even if you didn’t intend to hit anyone.

Or it may be that Officer Loehmann didn’t do anything that amounts to a crime. He might have made an honest mistake. There’s even an argument that he made the mistake because his partner, Officer Frank Garmback, drove up so close to Tamir Rice that Loehmann didn’t have time to properly assess the risk. It’s therefore arguable that Garmback bears more responsibility for Tamir Rice’s death than Loehmann. Garmback’s lawyer claims that he meant to stop further away but the car slid in the snow.

If that’s all true, it’s possible that the killing of Tamir Rice was the sad result of a chain of honest mistakes by good police officers that unfortunately lead to a terribly tragic death. (Obviously it would be convenient for the Cleveland police if it was.) But even if the death of Tamir Rice is not a crime, it’s still a tragedy. Regardless of what it may have looked like to Officer Loehmann, a 12-year-old child is dead for no good reason.

Those of us who keep a mistrustful eye on the police have a name for these kinds of tragedies. We call them isolated incidents. As in, “The death of Tamir Rice was an isolated incident that is not indicative of a larger problem in American policing.”

Unfortunately, there are a lot of isolated incidents: Tamir Rice, Eric Garner, Freddie Grey, Eric Harris, Michael Brown, Walter Scott, Bettie Jones, and rather a lot of others that haven’t made the news. Everyone at that link is an unarmed black person who died in an incident involving the police. Some of the officers have been charged with crimes, some of the killings are probably justified, and many of the deaths appear to have been accidental, including TASER deaths and a number of black pedestrians struck by police cars.

Suppose you and I meet for drinks after work every Friday, and as part of our drinking tradition we flip a coin to decide who pays. After a while, you notice that I am consistently winning 4 out of 5 tosses. You might not be able to prove that my winning any single coin flip was more than an isolated incident, but the statistics make it very clear there’s a lot more going on than just bad luck.

Or suppose a member of your family checks into the hospital for minor surgery and ends up dying from an infection. Assuming there were no visitors, that infection had to come from a member of the hospital staff. All hospitals have problems with infection control, but suppose you investigated and learned that your hospital’s rate of deaths due to hospital-acquired infection is twice as high as other hospitals. The nurse or doctor who infected your family member presumably didn’t intend to kill them, and the hospital almost certainly doesn’t have a policy of deliberately infecting and killing patients, but the higher-than-normal rate of hospital-caused infection deaths still points to a serious problem.

Now suppose your hospital investigation revealed that black patients die from hospital-acquired infections at twice the rate of white people. That would be worth looking into, wouldn’t it? And if you ruled out other patient factors (genetics, environment, culture) then you’d pretty much have to assume that the hospital is more careless about infection control with black patients. Perhaps it’s unconscious bigotry, or resentment of patients who lack insurance. It could be that hospital administrators assign the better staff to take care of white patients. But whatever the cause, it ought to be stopped.

The Guardian‘s data on people killed by American police shows that in 2015 black people were killed by police at twice the rate for the rest of the population, and young black men were five times more likely to be killed by police than young white men of the same age. Some of that could be explained by the greater tendency of black people to commit crimes — they are being shot more by cops because they are more likely to present a threat — but I don’t think that would explain the higher rate of unarmed black people killed by police.

Once you’ve ruled out justified killings, you’ve shown that a problem exists. Identifying the cause might be harder. It could be that enough cops are straight-up KKK-style racists to cause the statistical difference. Or it could be that white cops just have a harder time identifying with young black men: They might see belligerent young white men as troubled kids who need straightening out while seeing equally belligerent young black men as hardened criminals that deserve no mercy. Or given the reports that Officer Loehmann had a poor record as a police officer, perhaps the problem is caused by something as banal as police commanders giving less thought to the quality of the officers they hire to to patrol black communities.

As I said at the top, I don’t know enough about the Tamir Rice shooting to know if officer Loehmann should be thrown in prison. (People who followed the case more closely than I may have reached more certain conclusions.) But I do know that when it comes to police officers killing black people without justification, throwing the officers in prison is not the primary goal. Throwing the officers in prison is at best a means to an end, and maybe even a necessary means, but the primary goal should always be to get cops to stop killing so many black people for no good reason.

Because that shit has got to stop.

The Argument For Pulling the Trigger

New York Times reporter Matt Apuzzo has a fascinating story about Dr. William J. Lewinski’s work as an expert witness in police shooting cases.

When police officers shoot people under questionable circumstances, Dr. Lewinski is often there to defend their actions. Among the most influential voices on the subject, he has testified in or consulted in nearly 200 cases over the last decade or so and has helped justify countless shootings around the country.

Apuzzo’s story is reasonably balanced, but I’d like to talk about a number of red flags when it comes to Lewinski’s work.

His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story.

My guess is that most police shootings are justified — at least from the point of view of the officer pulling the trigger — but if Lewinski is reaching the same conclusion every single time, then what exactly is he bringing to the table? How much expertise is he contributing when you could replace him with a guy holding up a sign reading “The officer acted appropriately”?

Consistently finding that the officers acted appropriately also raises the issue of bias, which is the next red flag:

He has appeared as an expert witness in criminal trials, civil cases and disciplinary hearings, and before grand juries, where such testimony is given in secret and goes unchallenged. In addition, his company, the Force Science Institute, has trained tens of thousands of police officers on how to think differently about police shootings that might appear excessive.

That’s a pretty big conflict of interest. He runs a company that gets most of its money from police departments to train police officers, and then he offers expert testimony on police conduct in court cases which could send police officers to jail and cost police departments millions of dollars in damages. If he testifies against an officer in a shooting, he risks alienating the sources of his income.

Many policing experts are for hire, but Dr. Lewinski is unique in that he conducts his own research, trains officers and internal investigators, and testifies at trial.

When it comes to the credibility of an expert, doing original research can go either way: On the one hand, it can be a good sign because making original contributions to a field of knowledge requires you to understand it in great detail. On the other hand, it can be a bit of a red flag because it’s easy to cross the line between original science and making up your own special science. (See, for example, forensic bite-mark “expert” Dr. Michael West.)

Lewinski’s personal “About” page says this about him:

Dr. Bill Lewinski is one of the world’s leading behavioral scientists whose work has focused primarily on the intensive study of the human dynamics involved in high stress, life-threatening encounters.

And his Force Science Institute “Who We Are” page describes his research this way:

Dr. Lewinski is conducting the leading research on human behavior in force encounters. His current focus is on action/reaction parameters, perception, attention & memory and judgment. His research has been published in national law enforcement publications, websites and e-news lines. This research has been highlighted on 48 Hours Investigates and the BBC’s Panorama.

Those are not exactly scholarly publications. In fact, of the nineteen published research papers listed by Dr. Lewinski, sixteen are in law enforcement publications. On the other hand, the remaining three papers appear to be genuine research published in legitimate peer-reviewed journals. The man has a Ph.D. and he taught college courses for decades. He’s been involved in some real research.

Still, this is not the research output of “one of the world’s leading behavioral scientists.” For instance, a quick search shows that his most-cited paper was referenced 23 times. By comparison, my old college adviser has a paper that was cited 94 times, and while he was a great teacher, he wasn’t a leader in his field either.

It’s also hard to say what Lewinsky contributed to his two most-cited peer reviewed papers because he wasn’t the lead author for either of them. That was Professor Joan N. Vickers from the University of Calgary Kinesiology department. She has dozens of peer-reviewed publications, many of which have been cited hundreds of times, which means she probably is the kind of scientific leader that Lewinski wants people to think he is.

Apuzzo’s article discusses some criticisms of his research, but I have no way to tell how valid they are. It appears that much of his research is about human behavior under stress in situations typical of police shootings. For example,

In 1990, a police shooting in Minneapolis changed the course of his career. Dan May, a white police officer, shot and killed Tycel Nelson, a black 17-year-old. Officer May said he fired after the teenager turned toward him and raised a handgun. But an autopsy showed he was shot in the back.

Dr. Lewinski was intrigued by the apparent contradiction. “We really need to get into the dynamics of how this unfolds,” he remembers thinking. “We need a lot better research.”

He began by videotaping students as they raised handguns and then quickly turned their backs. On average, that move took about half a second. By the time an officer returned fire, Dr. Lewinski concluded, a suspect could have turned his back.

That seems plausible to me. I don’t know enough about human perception and reaction to know if that particular example is correct, but I do know there’s been a lot of research in this area. We’ve learned a lot about the limits of human perception and behavior, including that we overestimate our ability to understand what happened, and it all gets worse under stress.

That’s why I think it’s wrong to impose severe criminal punishments on people when they make ordinary human mistakes, even when the consequences are unusually tragic, and I see no reason not to extend that principle to the police. Civil damages are a different matter. After all, the officer still made a mistake, and someone still got hurt who didn’t have it coming.

Somewhat disturbingly, Dr. Lewinski doesn’t see it that way. He doesn’t think the officers made mistakes. He the thinks the limitations of human perception and reaction are a justification for a frightening shoot-first policy:

The shooting looked bad. But that is when the professor is at his best. A black motorist, pulled to the side of the road for a turn-signal violation, had stuffed his hand into his pocket. The white officer yelled for him to take it out. When the driver started to comply, the officer shot him dead.

The driver was unarmed.

Taking the stand at a public inquest, William J. Lewinski, the psychology professor, explained that the officer had no choice but to act.

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

That’s not the first time we’ve encountered cops who shot people for doing exactly what the cop told them to do. It seems like a no-win scenario for motorists.

“A batter can’t wait for a ball to cross home plate before deciding whether that’s something to swing at,” he told the Los Angeles deputy sheriffs. “Make sense? Officers have to make a prediction based on cues.”

Lewinski is talking about the generally uncontroversial observation that human physical actions are faster than reactions. A bad guy deciding to shoot a cop has the advantage of surprise, so he can be pulling the trigger before the officer has time to recognize what’s happening and respond. This is a real concern for police officers, but Lewinski’s recommendation that officers should solve that problem by shooting before they see a clear threat is deeply disturbing.

Just imagine what it’s like for the black motorist in this story. A cop stopped him, and for whatever reason he had his hand in his pocket. Yes, the smart thing would have been to hold both hands where the cop could see them, but he goofed, and now the cop is screaming at him. What is he supposed to do?

If we accept Dr. Lewinski’s evaluation of the situation, it doesn’t matter if he keeps his hand in his pocket or pulls it out. Either way, the cop should shoot him, because waiting to see if he has a gun would put the cop at risk. So neither of the motorist’s choices will get him out alive. The simple act of putting his hand in his pocket was a fatal mistake from which there is no escape.

On the other hand, what if the motorist did have a gun in his pocket. Then he might be able to survive the encounter with this cop by pulling the gun as fast as he can and shooting first, before the cop can shoot him.

If someone is trying to murder you, even if it’s a cop, you have the right to self defense. Of course, you can’t be doing something wrong at the time — robbing a liquor store, mugging an old lady, breaking into someone’s home — you have to come into the situation with clean hands. But the only thing the motorist does wrong in this scenario is having a hand in his pocket, which is not a crime.

(The paradoxical thing is that having a gun might violate the law, which might mean he can’t claim self-defense, but not having the gun would leave him clear to defend himself, but he’d have no means of doing so.)

You might argue that the motorist has no reasonable belief that the cop is going to kill him: Just because an armed cop is standing outside his car screaming at him doesn’t mean the cop is going to murder him for no reason. That seems like a pretty good argument, but Dr. Lewinski refutes it for us:

“In simple terms,” the district attorney in Portland, Ore., asked, “if I see the gun, I’m dead?”

“In simple terms, that’s it,” Dr. Lewinski replied.

By Lewinski’s own logic, the black motorist can’t afford to wait too long to decide whether or not the cop is going to kill him. By the time he sees the muzzle flash, it’s too late. Best to shoot the cop first, just to be safe, right?

(Reminder: I’m not a lawyer and this isn’t advice. This is a hypothetical argument in a blog. For God’s sake, don’t go thinking it’s okay to shoot cops!)

You might still think it’s not reasonable for the black motorist to believe that the cop will kill him for no reason. Yet that’s exactly what Lewinski is claiming the police officer should do: Kill the motorist before he sees a clear reason to do so. So not only is Dr. Lewinski providing a self-defense argument for black motorists to shoot cops, he’s also providing empirical justification for believing cops are likely to shoot them for no reason, because that’s what he’s telling them to do.

We could apply Dr. Lewinski’s argument more broadly: If you’re a white guy walking down the street and you see a young black male walking toward you, how can you be sure he’s not going to shoot you? Best to shoot him first, just to be sure. After all, if you see the gun, you’re dead, right?

Of course, if you’re the black guy, and you see a white guy coming toward you, shouldn’t you shoot him first? After all, he’s probably thinking about shooting you first. Or maybe not, but can you afford to wait until you’re sure? Dr. Lewinski doesn’t think so: If you see the gun, you’re dead.

We could follow this line of reasoning as far as we want, until we’re gunning each other down in the streets for not showing empty hands and hurtling nuclear bombs across the oceans because we fear our enemies might do the same.

My real point is this: The reason we can justify so much mayhem with Dr. Lewinski’s argument is that Dr. Lewinski’s argument is morally bankrupt. It fails the “What if everyone did that?” test. He’s not telling cops to kill to protect themselves from danger, he’s telling them to kill whenever they can’t be sure they’re safe. And no one can never be sure they’re safe.

A few years back, I wrote about one of those puppycide incidents that went really bad:, and I asked why police couldn’t use less lethal methods to subdue the dog. Someone defending the police told me it would be nuts to go on a drug raid with pepper spray instead of a gun. (Apparently it’s an either/or thing.) My response was that if this was true, then by choosing to conduct drug raids with gun in hand the police have also chosen in advance to meet all resistance with lethal force: Could be a bad guy with a gun, could be a lady with a baseball bat, could be a 10-year-old boy with a hammer. They all get a bullet.

If that’s really the case, then maybe police shouldn’t be conducting so many raids. And if we accept Dr. Lewinski’s argument that cops doing traffic stops should be able to shoot anybody who might be a threat, then maybe they shouldn’t be doing so many traffic stops.

I think it’s telling that you only really hear this argument as a defense after the fact. No police department issues up front warnings to citizens that they will be shot if they fail to put their hands up as an officer approaches. That’s because they know this is a shameful policy, and they don’t want to claim it unless they have to.

Getting back to my example of cops who run into a frightened 10-year-old with a hammer during a drug raid, despite all the bad stuff we’ve seen cops do over the years, I’m confident most officers would find a way to handle that kid without shooting him. Because nobody wants to kill a child.

So maybe the best way to get police to stop unnecessary killings is to find a way to make them want to stop unnecessary killings. Maybe cops will find better ways to stop motorists that are less risky for everyone. Or maybe when a cop who sees a black motorist with his hand in his pocket, he will just roll with it and hope he doesn’t get shot. After all, that’s what the black motorist is doing.

(Hat tip: My co-blogger Ken helped me to characterize the legitimacy and influence of Dr. Lewinski’s research.)

Racism Detected In Ferguson

New York Times reporter Matt Apuzzo says that the Justice Department’s investigation into the Ferguson, Missouri police has found extensive racial problems:

Police officers in Ferguson, Mo., have routinely violated the constitutional rights of the city’s black residents, the Justice Department has concluded in a scathing report that accuses the officers of using excessive force and making unjustified traffic stops for years.

The Justice Department […] says the discrimination was fueled in part by racial stereotypes held by city officials. Investigators say the officials made racist jokes about blacks on their city email accounts.

This is the official answer to the question of why the protestors in Ferguson were so quick to assume that Darren Wilson was a racist murderer. The department’s racial problems would have been obvious to black people in Ferguson. They would have seen it in the way they were treated, the things that were said at the side of the road when the police stopped them, the way cops treated black people on the street. It would have been a regular topic of discussion in the black community.

So when the story of the Mike Brown shooting broke in Ferguson, this is how it looked: A member of a police department with a history of racism, equipped with a sidearm, possibly body armor, and several non-lethal weapons, confronts an unarmed and comparatively vulnerable black man on the street, and despite having a car which can be used for either cover or escape, he gets out and chases the black man down the street and shoots him multiple times, killing him. You can’t blame anybody for at least suspecting that this was a racially motivated killing.

As it happens, after a thorough investigation, which probably wouldn’t have happened without the protests, it turns out there’s some convincing evidence that Mike Brown attacked Officer Wilson. It appears to have been a reasonably justifiable shooting. But in the early days it only made sense to assume the worst — that the shooting was part of the long racist pattern of policing in Ferguson.

in Police

It’s Probably More of a Dingy Gray…

When I read Spencer Ackerman’s story in the Guardian about a Chicago Police “black site” right here in the city — where CPD supposedly keeps people in secret to interrogate them without access to a lawyer — I was skeptical. Scott Greenfield is too:

How is it possible that this off-the-books facility existed for so long, and yet nobody, no lawyer, no judge, raised its existence, whether in a criminal proceeding following an illegal interrogation, or at arraignment when a beaten defendant appears with no cognizable explanation for the imprint of the Glock on his face?

What about a civil suit?  Where are the § 1983 actions for the deprivations of civil rights?  Even if the state courts were part of some conspiracy to keep this black site out of the courtroom, are the federal courts part of the conspiracy as well?  And what of the family of the “at least” one dead guy?  Didn’t they go to a lawyer to address this little detail, that their father or husband turned up dead?

Scott doesn’t like when people speculate in his comment section, so I’ll do it here.

Part of the answer to Scott’s question of why this hasn’t come out is that this is Chicago and that’s how we roll. Former Commander Jon Burge tortured people for years before it came out. Actually, it came out all the time, but just from criminal scumbags, not anyone that the good people of Chicago were willing to believe.

I’m sure this place really exists, and I’m sure people are occasionally interrogated there. I’m also pretty sure there have been some shenanigans about whether or not somebody’s client is actually there. However, I also think that calling it a “black site” is just hype for the Guardian.

Big city police departments have lots of buildings that aren’t technically police stations — armories, administrative centers, supply depots, specialized units, stuff like that. It’s not hard to imagine that if you’re a cop who’s grabbed somebody up and you want to talk to them without the distractions of a busy police station (or their lawyer) you might want to take them to one of these buildings. It’s police-controlled, but it’s not the first place someone will look.

Or suppose you’re a cop attached to one of those special units that operates out of that Chicago-Police-building-that-is-not-a-station, maybe a unit with some kind of intelligence function. You’re trying to develop an informant, so you pick the guy up and bring him to your office. Or you happen to stumble on a crime in progress and make an arrest.

In any case, meanwhile, somebody trying to help the guy you picked up — perhaps his mother — might call 1-800-LAW-REP4 and a lawyer like Eliza Solowiej (mentioned in the Guardian story) might try to visit him. She can’t find him at any of the stations, but being a somewhat infamous thorn in the side of the Chicago Police, she knows to try Homan Square.

Since it’s not a police station, it’s probably not set up to receive the public, including lawyers looking for their clients. And the cops there are even more surly than usual because they’re not used to people walking up and asking questions. It’s probably not normally used to hold people either, so the folks guarding the doors don’t really know how to deal with it. Easier just to tell the lawyer he’s not there and hope she goes away. Or maybe she gets a cop who knows the rules and he lets her in.

(Both things happen in the Guardian story. Besides, you don’t need a “black site” to make cops lie to defense lawyers.)

By the way, the Chicago Police say that Homan Square houses the Bureau of Organized Crime, the SWAT Unit (which would explain the military-ish vehicles), Evidence Technicians, the CPD ballistics lab, and a few units that have undercover officers. I’m pretty sure it’s also where you go when someone steals the radio out of your car and the police call you to say the found it. And from other information, I think it includes city-wide anti-prostitution and anti-gang functions. Most of these aren’t exactly street cops who arrest people all the time, so it’s not the first place people think of when they’re looking for someone who’s been arrested.

I imagine they all got a memo from headquarters about what to do if a lawyer drops in. Followed by a word-of-mouth warning that there are going to be reporters around, so for God’s sake don’t do anything stupid.

Update: My laptop battery was running out of juice when I wrote this (It went into hibernation in the middle of the page refresh after I clicked Publish!), so it was kind of a rush job. I wanted to clarify that when I say that the Homan Square building isn’t really a station, what I mean is that it’s not one of the 22 district stations that Chicagoans think of when we talk about “going to the police” to report a crime or a car accident or something like that. CPD still calls it a station.

Should It Be a Crime to Hate Police?

One of the implicit assumptions I make here is that the criminal justice system is not exempt from the general principle that social institutions enforce social norms. In a society hostile to minorities, giving authorities another law to enforce is giving them another way to punish minorities. Even a law intended to help minorities can end up hurting them if the intended effect is overwhelmed by oppressive enforcement.

This especially applies to laws against hurting people’s feelings, such as laws that punish “bullying” or offensive (but non-violent) behavior, or even laws that increase the punishment for “hate crimes.” Although these laws are nominally intended to protect the powerless, they are part of a system that tends to protect and support the powerful, often harming the powerless in the process. That latter effect can swamp the intended purpose of the law and do more harm than good.

I think I first really understood this after hearing about Canadian anti-pornography laws premised on the feminist theory that pornography was a form of hate speech which harmed women. Among the first people to be prosecuted under these laws was the owner of a gay and lesbian bookstore — no doubt to protect women from the inherent misogyny of the materials sold there.

I’m  bringing this up because of a recent proposal for extending the federal hate crime law:

Violence against police officers that is motivated by anti-police bias should be prosecuted as a hate crime, the nation’s largest police union is arguing in a letter to President Barack Obama and Congressional leaders this week.

“Right now, it’s a hate crime if you attack someone solely because of the color of their skin, but it ought to be a hate crime if you attack someone solely because of the color of their uniform as well,” said Jim Pasco, the executive director of the National Fraternal Order of Police.

I’ll bet supporters of hate crime legislation didn’t see that coming. It never occurred to me that in the face of increasing complaints about police militarization and rough treatment of citizens, police unions would agitate for greater punishment of people who attack them.

I’m not sure it even makes sense to talk about “anti-police bias.” I know they mean someone who hates cops, but it’s not as if cop is an innate human attribute like race or gender, and it’s not a system of belief or a group you can join like a religion. Cop is a job description. There’s nothing wrong with criticizing either the requirements of a public service job or the way particular employees perform at it.

“Enough is enough! It’s time for Congress to do something to protect the men and women who protect us,” Chuck Canterbury, the president of the union, said in a statement Monday. The group has long lobbied for harsher punishment for those who harm law enforcement officers.

Indeed they have, and very successfully. Anyone who kills a police officer is already subject to the harshest possible punishment, which is often the death penalty, and that’s only if they live long enough to be captured. So what do the union bosses really want?

I assume much of it is just grandstanding for the rank-and-file. That tends to explain a lot of bombast by the heads of any organization. But I think there’s probably more to it.

The FOP newsletter mentions several murdered police officers, and some dodgy news coverage talks about treating “killing cops” as a hate crime, but the language used by the union bosses talks only about “violence” and “attacks.” Furthermore, as near as I can tell, the federal hate crimes laws apply to a pretty broad range of aggressive acts that fall far short of murder, and some hate crime laws apply even to relatively minor property damage (to address things like spray painting swastikas on a synagogue). It sounds like even minor crimes against police could be treated as hate crimes if there was evidence the offenders didn’t like cops.

To me, this seems pretty clearly targeted at protesters. There’s certainly nothing wrong with charging them when they do something violent or destructive, but it’s important to keep a sense of proportion. With the proposed changes, if the laws are interpreted broadly enough — and you know police will interpret the laws broadly — every thrown object, every shove at a riot shield, and maybe even every vandalized patrol car could be charged as a hate crime, subject to the same kinds of harsh punishments we intended for Nazi skinheads and Klansmen who burn crosses on people’s lawns.

Of Protesters and Cop Killers

On Saturday in New York City, 28-year-old Ismaaiyl Brinsley reportedly shot and killed police officers Rafael Ramos and Wenjian Liu while they were sitting in their patrol car. This tragic shooting has quickly become politically charged because it happened amid nationwide protests against police violence in the wake of several controversial shootings shootings of unarmed black people. Brinsley killed himself, so nobody can ask him why he did it, but there is apparently some evidence that he believed he was avenging those killings. The story is still developing.

I knew there would be people who would take Brinsley’s reputed motive and use it to smear protesters and activists who had spoken out against police abuse. I wanted to write about that, so I looked to one of my better sources of stuff to blog about, Jack Marshall at Ethics Alarms, and he did not disappoint. [Update: An earlier draft of this post included several examples of people smearing activists, but the post was getting so long that I deleted them, and through carelessness I ended up with this paragraph that basically calls Jack’s post a “smear,” which is a bit too far. However much I disagree with Jack, his post was a legitimate opinion piece. Sorry, Jack.] He has posted some observations about the shooting that I’d like to respond to.

1. The dangerous escalation of rhetoric and the persistent misrepresentation of facts by civil rights advocates, activists, journalists and pundits made this kind of episode nearly inevitable. You cannot flood the airwaves with constant references to “police shooting unarmed black men” as if there was an organized racist liquidation of blacks by police in the streets and not risk sparking violence from the hysterical, the deranged, the angry, the lawless and the desperate.

There wouldn’t be constant references to police shooting unarmed black men if police were not, in fact, shooting unarmed black men. Michael Brown, John Crawford, Ezell Ford, Tamir Rice, Rumain Brisbon, Dante Parker, Eric Garner, Akai Gurley. All African Americans, all reportedly unarmed, all killed by police. (Police killed Parker and Garner by means other than shooting, and Rice was too young to be called a man, but neither of those things makes it better.) Some of the killings may have been justified, or at least understandable, but they were killings of unarmed black men nonetheless. It’s not like the civil rights advocates, activists, journalists, and pundits are just making stuff up.

2. The irresponsible “hands up” protests did not cause these deaths, but they probably helped create the conditions that led to them. The shootings of the two NYPD police don’t make the false “hands up” lie—which continues to assert that Michael Brown was executed when the evidence indicates he was not, and that there was racial bias involved, when there is no evidence of this at all—any more unethical, reckless or irresponsible than it already was. It was wrong from the beginning. It was wrong to assert these things before what happened in Ferguson had been investigated, and it was wrong to keep asserting them after it was clear that they were unsubstantiated or false.

Jack might have a point about “hands up” now. Although most witnesses do say his hands were up, there’s a reasonable argument that it was a posture of attack, not surrender. And since the grand jury declined to indict Wilson, suggesting that they found the shooting to be justified, it seems likely that they didn’t believe Brown was surrendering.

However, Jack’s assertion that Michael Brown activists should not have made accusations before the investigation was complete is hypocritical nonsense. He is making that assertion in the middle of a post in which he accuses civil rights leaders and activists of creating the atmosphere that motivated cop killer Ismaaiyl Brinsley. In other words, just hours after the shooting — long before the NYPD investigation could possibly be complete — Jack claims to know who the murderer was, why he did it, and the identity of the people whose anti-cop rhetoric supposedly influenced him to do it. Jack is doing exactly the same thing he’s criticizing others for doing. The next time a cop kills an unarmed black man, should we hold Jack accountable for creating the conditions that made the cop fearful?

I think the answer is obvious: Of course not. Jack is entirely justified in commenting on this incident. Vigorous discussion of matters of public interest is not just allowable in our free society, it is necessary for the proper functioning of a democratic government. By discussing these issues, Jack is being a good citizen, as are the people who are criticizing the police.

3. The response to the shootings by those who have continued to suggest racist murder by police in specific incidents absent any proof, and in Brown’s death, in defiance of the known evidence, continues the theme. Al Sharpton, who is a prime offender, wrote..

“I am outraged at the killing of 2 police officers in Brooklyn. That is why we stress non violence as the only way to fight for justice.”

Despicable. “Justice,” in this context, suggests that the killings are in response to injustice, and that the injustice is the intentional and racist killing of unarmed black men.

How much do you have to hate Al Sharpton to get angry at him for denouncing the use of violence against police? Geez.

Sharpton’s use of “justice” of late is well-publicized: “Justice for Mike Brown, ” “Justice for Eric Garner,” Justice for Trayvon.”  This phrasing, setting off the murders of the police with “fight for justice” continues the lies, misrepresentations and manipulation of public opinion, especially among African Americans. There is no evidence that Brown or Garner, or other shooting victims like John Crawford or 12-year old Tamir Rice were shot because they were black, except that they were black, which for Sharpton and others like Eric Holder, is enough.

This is not the first time Jack has criticized activists for claiming there was racial bias in the Michael Brown shooting when “there is no evidence of this at all.” Technically speaking, Jack is plain wrong. As Jack more-or-less admits, the simple fact that a white police officer shot an unarmed black teenager is evidence of racial bias. It’s not very strong evidence, and it’s subject to interpretation and possible refutation by other evidence and testimony. But it’s still evidence.

In addition, shortly after Brown was shot, several alleged eyewitnesses claimed that Wilson shot at Brown’s back, and that Brown’s hands were raised in surrender. These witness statements are evidence too. They are subject to interpretation, impeachment, and refutation, of course, but remember that these statements were undisputed by any other public witnesses for months. (There were some accounts of witnesses making contradicting claims in private statements, but these were second- or third-hand, not on-the-record statements to the press.)

Granted, even if Wilson had shot Brown in the back as he was fleeing, that wouldn’t prove a racial bias — he could have murdered him for some other reason — but it’s not an unreasonable inference. More generally, just because Wilson wasn’t shouting the N-word while shooting a fleeing Mike Brown in the back and wearing a “White Power” T-shirt doesn’t mean that the incident was entirely free of racial bias.

Jack seems to be laboring under a common misunderstanding of what activists are complaining about when it comes to police treatment of black people. Activists are not accusing police of a coordinated conspiracy to murder helpless black people. And for the most part, they’re not even saying that the individual police officers who killed unarmed black men did so to fulfill their desire to murder a black guy. They realize that even the Ferguson police are not the KKK.

(Of course, some people have said these things — the world is full of people saying stupid things — but that’s not the thrust of the main activist movement. Likewise, there certainly have been cops who probably murdered black people out of racial hatred, but those aren’t the people that most police supporters are defending.)

The main accusation against police is not that they are racially-motivated murderers, but that as former FBI agent William W. Turner wrote in The Police Establishment in 1968, “Since its inception, the police establishment has conducted itself more as the agent of the power structure than the servant of a pluralistic society.” Here in the U.S., that tends to play out along racial lines.

In white neighborhoods, police see their role as protectors of the community, cracking down on criminals who would disrupt the peace and harm the good citizens. But in black neighborhoods, so the argument goes, police see their role as keeping the population under control. Thus black people have stories of being questioned while sitting on the stoop of their own homes, or of being stopped for walking with their hands suspiciously in their pockets, or of being ordered to disburse for daring to gather in small groups on the street corners. In the past few months, police in Ferguson arrested black people for stopping while walking on the sidewalk and tear-gassed black people standing in their own fenced-in yards.

Activists argue that this disregard for black people makes cops less hesitant to escalate the level of force. If Tamir Rice had been a white 12-year-old boy instead of a black one, would Cleveland police officer Timothy Loehmann and his partner have approached the scene in a way that gave them more time to assess the situation instead of driving right up to Rice and jumping out to shoot him? If John Crawford had been a white guy carrying a toy gun through Walmart, would the cop who shot him have given him more of a chance to explain himself and surrender instead of shooting him almost immediately?

If Eric Garner had been an overweight white guy like me instead of an overweight black guy, would New York police have taken his complaints about not being able to breath a little more seriously? If Michael Brown had been a white teenager, would Officer Wilson have made the same decision to chase him down the street, knowing that he would have to kill Brown if he resisted arrest? If Ezell Ford had been a mentally ill white man, would police have struggled to control him long enough for help to arrive instead of shooting him?

You don’t have to be a cop hater to think that in at least a few of these cases, things would have turned out differently if the cops had been dealing with white people. That is the essence of the general complaint about racial bias by the police. That is why protesters say black lives matter.

Each of these is also a separate case in which “justice” is a complicated mess of facts and law, with no societal conclusions to be drawn or clarified by considering them together.

That’s true for criminal cases, which must be considered in isolation. But it’s not true for broader concepts of justice when considered as a matter of public policy. In policy analysis, patterns matter. Medical science does not allow us to determine which particular cigarette gave a smoker lung cancer, but we know damned well that smoking causes cancer. Just because we can’t point to a specific cop who killed a black man and say with certainty that it is a racially-motivated murder doesn’t mean that we can’t observe the pattern of cops killing unarmed black men and say that there’s something damned wrong going on.

Similarly, Ferguson protest leader Deray McKesson tweeted…

“I do not condone the killing of the two NYPD officers today. I do not condone the killing of unarmed black people. I do not condone killing.”

Also despicable. He, like the alleged shooter Brinsley, is drawing a false equivalence between what may be legal shootings by police unrelated to color and the killing of the two officers, who were not black, in response.

Jack’s reaction to this is just unhinged. McKesson and Sharpton are both denouncing the killing of police officers. They are saying that killing cops does not serve their cause. And in Jack’s mind, this is linking the police killings to the cause in some sort of false equivalence.

Granted, the cold blooded murder of officers Ramos and Liu is a terrible crime, without question. But some of the things police officers are being accused of are pretty terrible too, even if they don’t quite rise to the level of first degree murder. As Jack points out, the police killings may in fact be legal, but then again, they may not be. (Officer Peter Liang, for example, looks like he might do time for killing Akai Gurley, although that crime doesn’t seem to have any racial component.)

And even if the killings are legal, that doesn’t mean they’re morally right. Lots of terrible things that people do to other people are perfectly legal and yet terribly wrong. This is an argument not that these things are acceptable, but that the laws should be changed.

Another point is that McKesson and Sharpton are not the ones who linked the cop killings to their cause. That was done by everybody from Governor Pataki to former Mayor Giuliani to the head of the NYPD union. Activists like McKesson, Sharpton, and the rest are responding to that by saying they oppose violence against the police as much as they oppose violence against black people. This does not seem like a bad thing.

5. The deaths of police officers in the wake of the ongoing, high-profile campaign to demonize police and the justice system for political advantage were predictable.

It’s always possible that rhetoric will incite crazy people to do terrible things. But censoring yourself because of how a crazy person might respond is a madness of a different kind. No one would ever be able to change anything if they took responsibility for how everyone in the world might react to what they say. That’s no way to live your life.

And if you want to talk about the consequences of rhetoric, the police union appears to have circulated a memo saying that the NYPD is now a “wartime” police department. Remember that the next time an NYPD cop shoots someone.

More such deaths are also likely, unless the rhetoric from civil rights and political leaders becomes responsible and fairly represents the facts and the law. Public figures, activists and journalists who continue  the “hands up” lie or who link Garner, Crawford, Rice, Brown and Trayvon Martin in a manufactured conspiracy of the justice system to profile and kill unarmed black men are accountable for what happens next.

Jack, the activists are saying there’s systemic racial bias and injustice; you’re the one who’s created the strawman of a racist conspiracy.

Further, as with most social movements, unrest in Ferguson started at the bottom, with people from the neighborhood taking to the streets the evening of Michael Brown’s shooting. Sharpton and other national civil rights leaders didn’t show up until later. (A cynical person might even say that they saw a chance to get in front of something that they could use.) When you portray the protesters as blindly following the rhetoric of political leaders like Sharpton, instead of admitting that they might be reacting to their own lived experience, you are denying the agency of thousands of people. We saw the same thing in the 1960’s, when establishment apologists sought to blame black unrest on agitators and communists (really) rather than admit that millions of black people were angry because there was something sick about the way our society treated them.

Ferguson a Week Later

After a pretty good Thursday night, things got tense on Friday. Cops were guarding some stores, but they were attacked by a few of the protesters and several officers were injured. The police then retreated to a perimeter, which resulted in a situation eerily reminiscent of the 1992 L.A. riots, when the police withdrew from whole areas of the city, leaving residents to fend for themselves.

A bunch of teenagers began looting some of the stores, and Ferguson residents moved to block the looters and protect the stores, essentially providing their own police protection. They weren’t entirely successful and some of the stores were heavily looted. At one point a fire broke out in one store, and residents entered it and used bottles of soda to extinguish it, thus also taking on the duties of the fire department.

(I was watching some live streaming video from a guy with a cell phone, and I got to see one of the young black men guarding a storefront get a call from his mother and then turn the phone over to an Al Jazeera correspondent who had been interviewing him. The correspondent then assured the women that her son was behaving “very responsibly.”  The 21st century is a very strange place.)

I’ve since heard that the police retreat was arranged between community leaders and the police commander, but it was weird having cops posted close enough to antagonize people but not doing anything to, you know, fight crime.

Friday, Missouri Governor Jay Nixon declared a state of emergency in Ferguson, and imposed a curfew from midnight to 5 am. I really don’t understand this police obsession with people being out late at night. First of all, it’s Saturday night, and they want everyone to be home by midnight?

And are there no night jobs in Ferguson? I know there’s a 24-hour Walmart, but it looks like that’s in St. Louis. Still, there must be gas stations or convenience stores. And of course bars, although police probably consider them to be part of the problem.

Anyway, I followed events on Twitter last night, and the curfew went about as well as you’d expect. Tell the people of Ferguson they have to be off the streets at midnight, and everybody interprets it the same way: There will be a clash between protesters and cops at midnight. It was like the governor had announced the schedule for a sporting event.

Team Black showed up early in the evening, as usual. Community leaders such as Antonio French urged residents to go home before the curfew, as did the New Black Panthers, who also formed a buffer zone at times between protesters and the cops to try to keep things peaceful.

By midnight there were only a few hundred people in the streets, and a large portion of the press was packed into a sort of First Amendment pit at one end of the protest area. A number of reporters had defied the curfew by moving out into the neighborhood, and the folks at VICE News were live-streaming video from their position in the crowd, thus blatantly documenting their disregard for the curfew.

Team Blue took the field shortly thereafter, as rather a lot of cops with riot gear and armored vehicles gathered in front of the journalist holding area. One of the vehicles had a sniper-looking guy on top, although SWAT snipers also function as observers, so this wasn’t necessarily as threatening as it appeared. They began clearing the street with smoke rounds and then, in violation of an earlier promise made by Capt. Johnson, they fired tear gas as well.

Afterwards, the police explained that as they closed in, someone in the crowd began shooting — seriously wounding another person in the crowd — and the police used tear gas in response. They were unable to capture the shooter.

The night was pretty much quiet after that. The curfew will be in effect again tonight, so I expect everyone to set it off around midnight again.

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Ferguson Turns On a Dime

I tried, I really did. When I first heard about the shooting of Michael Brown by a Ferguson, Missouri police officer, I tried to give them the benefit of the doubt.

A lot of police shootings are perfectly legitimate, stopping bad people from doing bad things. Beyond that, there are cases where the victim didn’t deserve to get shot, but you can understand why it happened — people who were holding toy guns, cops who mistook a harmless object for a gun, accidental discharges, confusing situations, shots that miss the target and hit someone else. These may involve various degrees of recklessness or risk on the part of the shooter, but they aren’t straight-up murders.

The most prominent witness, Dorian Johnson, describes something that sounds an awful lot like a murder:

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

That sounds pretty bad, but there’s no way for me to tell if Johnson is mistaken or even lying. For all I know, he never even met Brown; it wouldn’t be the first time a supposed witness had completely fabricated a story to get attention. It was certainly possible that this was just a terrible mistake. In theory.

Then we all got to see how police work is done in St. Louis County, and in Ferguson in particular. For several nights, peaceful protesters have been met with heavily armed riot cops. On Wednesday, police announced that protests would be allowed during the day, but that a curfew would be enforced at night.

Why? Why should people not be able to go outside late at night in their own neighborhood? As Lt. Max Geron of the Dallas police says,

“Most protesters will meet, protest, and go home when they feel they’ve made their point. If they aren’t breaking any laws, they can be left to express themselves.” Establishing a dispersal time then gives protesters something to rebel against. “When you establish arbitrary rules that have no basis in law, the police then feel they have to enforce those rules or they look illegitimate. They can set these rules with the best of intentions, but they just end up creating more problems for themselves.”

The police in Ferguson did set a curfew time, and to deal with the problems they created, police sent about a platoon of SWAT (-ish) officers, complete with armored vehicles and a sniper on the roof, as seen in this shot by The Huffington Post‘s Ryan Reilly:

As night fell, the police tried to move the protesters off the streets. They started with a sort of Jedi mind trick, thanking the protesters for leaving before they actually left, and then telling the protesters that they should join their friends who had left. It was pretty funny in a sort of creepy not-getting-the-joke kind of way. (“You should probably leave now. All the the really cool people have left. You don’t want to be a loser by staying…” wasn’t actually what they said, but that was the undertone.)

Then came the teargas, followed by a handful of Molotov cocktails from the protesters, followed by more teargas. For an example of what that’s like, check out this video taken a little later in the night by Polarbear Productions of the police trying to drive off a crowd standing in the street. It starts with the loud chirp of an LRAD crowd control weapon in warning mode — followed by a barrage of smoke or teargas and rubber bullets.

This is no way to treat people who are just hanging out in their own neighborhood. “Not disbursing,” regardless of how they charge it, isn’t what you’d call a real crime.

The police in Ferguson also expended a lot of effort trying to stop people from recording them or reporting on what they were doing. Ryan Reilly was detained with Wesley Lowery from the Washington Post while they were hanging out at a McDonald’s restaurant tweeting and recharging their phones. (For God’s sake, somebody get these people external battery packs!) The police told them they were being arrested on trespassing charges, but after Matt Pearce from the Los Angeles Times called the police chief for a statement about it, they were kicked loose without any paperwork.

I think it was probably arresting the reporters (and also St. Louis Alderman Antonio French who was tweeting from the scene) that drew a lot of mainstream media attention. More politicians have weighed in on the matter, and the Missouri State Police have moved in to replace the St. Louis County police.

Stunningly, that seems to have changed everything. The state troopers are led by Capt. Ron Johnson who (a) is black and (b) has really good leadership skills. He seems to have taken a page out of Salt Lake City Police Chief Chris Burbank’s protest playbook, because he and his men showed up in regular uniforms rather than riot gear, they didn’t bring rifles or armored vehicles or tear gas, and they just began mingling with the crowd, talking to them and marching down the street with them. (From some of the reports, it sounds like the police are staged nearby and are keeping an eye on the area, because there were a few minor incidents and the cop cars showed up immediately to deal with the problem.) After a while, a lot of the cops just left the area, and the residents of Ferguson had their streets to themselves. Just a bunch of people hanging out at an outdoor event in the neighborhood.

Maybe I’m just fooling myself, but based on what I’m reading on Twitter, it felt last night like the situation had settled down. The reporters gave up hunting for conflict and shuffled off to their hotels. Obviously, things could still have gone wrong — there are rumblings on Twitter all the timee — and it could still slip out of control with another fatal gunshot, but it no longer feels like that fatal gunshot is imminent.

So the immediate threat of violence has abated, and the long-term solution to American race relations is still a work in progress. That just leaves the original problem that started it all: The circumstances of Michael Brown’s death. To give you some idea of where I’m going with this, up until last night — before Capt. Ron Johnson filled the world with brotherly love — my original title for this post was “Fuck Tha Ferguson Police In Particular.”

Given how badly the police have handled everything else in Ferguson — and I realize it was the St. Louis County cops who deployed their SWAT team, not the Ferguson cops, but it’s all happening on Ferguson’s patch and to the people the Ferguson cops are supposed to protect and serve — I don’t see any reason to think they give a damn about the people of Ferguson. At least not the black ones. This seems like exactly the kind of environment that would tolerate the kind of cop that would someday lose his temper and execute a young black man. And then try to cover up the crime.

At this point, I’m pretty sure the Ferguson police are capable of anything. We know they attack peaceful protesters, I think they’re harboring a murderous cop, and frankly, I’d like to know where all of them were when Biggie and Tupac got shot.

This tweet actually sums it up pretty well:

I had to go to sleep before I could finish this post, and now I see that the night was fairly peaceful, and that the Ferguson police department has made good on their promise to reveal the shooter’s name, which is Darren Wilson.

They’ve also picked this moment to reveal that they believe Michael Brown was a suspect in a what is either a strong-armed robbery or shoplifting at a nearby store. Obviously, as everyone is tiresomely point out, that’s not a reason to kill him. However, if it’s true, it makes it more plausible that he responded violently when confronted by Wilson. Ferguson police also say Dorian Johnson was involved in the same robbery/shoplifting incident, which would cast doubt on his credibility as a witness.

That said, the Ferguson police have not, as far as I know, said anything to contradict Dorian Johnson’s account of the shooting, which is that Wilson shot Brown in the back from some distance and then shot him again while he was surrendering. Nothing Brown did beforehand could possibly justify that.

Which makes it kind of weird that the police would release the report about Brown at this time. It’s almost like they were pissed off at having to reveal the shooter’s name, so they decided to smear Brown’s memory in retaliation, even though it has very little to do with officer Wilson’s behavior.

You know, after Capt. Johnson’s performance at calming things down last night, I was wondering how the Ferguson police would attempt to snatch defeat from the jaws of victory. Sigh. Hopefully the peace will hold for another night.

One other note: Police initially refused to name the officer who shot Brown, claiming there were security concerns, and earlier I said that sounded reasonable. But now that I think about it, I’m not convinced. We’ve known that NYPD officer Daniel Pantaleo apparently killed Erik Garner in New York for weeks, and he’s still okay. Out of all the thousands of officers who have killed people, how many times have any of them been the victim of retaliatory violence? Heck, FBI sniper Lon Horiuchi shot and killed Victoria Weaver at Ruby Ridge, an event which angered an awful lot of people, including a large number of well-armed right-wing nut jobs, and he’s still fine 22 years later.

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