We have a constitutional right to be left alone. We have a right to walk away. We have a right not to answer questions or comply with demands. Much of our jurisprudence is grounded in these rights, which the Supreme Court reiterates in justification of creating exceptions. And how does that play out on the street?
This video, via Bad Lawyer, provides one of the best teaching tools around when it comes to showing the reality of police/citizen encounters. First, the set up.
Maybe you recall this story, a Utah man was pulled over by the City of Bountiful, Utah police. He got out of his car, unarmed, hands at his sides and implored the police officer to tell him why he was stopped. The cops deployed the TASER on him, mmmmmmmm . . . 8 or 9 or maybe 10 times.
The man, Bruce Harper, was pulled over for having a crooked front license plate. Whether this is in violation of some Utah regulation is unknown, but let’s assume, arguendo, that it’s a heinous vehicle infraction.By the glory of the dash cam, we see what follows:
There is an obvious reaction, that had Bruce Harper merely done as he was ordered, what followed never would have happened. It’s likely correct. The officers weren’t on the road looking for people to taser. They weren’t looking to make Bruce Harper’s life miserable. If only he had been compliant.
Some people, however, haven’t figured out that the safest route in a confrontation with police is to do as they are told. There’s a bone in their head that says when they aren’t criminals, have done nothing wrong, and been stopped nonetheless, they are entitled to be indignant. They are entitled to ask questions. They are entitled to stand upright and invoke their right to be left alone. If the cops aren’t going to leave them alone, they expect a response to the question “why?”
Does this seem unreasonable, for a law-abiding person to expect a police officer to explain why he has been seized and is now subject to the officer’s commands? Society is quite divided on the answer to this question. The Supremes believe that police, being the new professionals they are, will react without violence, but rather demonstrate courtesy and restraint. Regular folks, particularly those inclined to comply first and question later, think this is absurdly foolish. Still others believe that once we surrender the right to assert our freedom from seizure, questioning later is worthless. Either we have rights or we don’t.
But the video demonstrates the overarching First Rule of Policing: Make it home for dinner.
A traffic stop is viewed by police officers as a potentially life threatening situation, regardless of the impetus for the stop. The cop doesn’t know whether the driver of the car stopped for some trivial reason is the nicest guy in town or a mass murderer. He is not about to take any chances finding out.
To the officer, the “threat” initiates with the refusal to comply with commands. There are some basic rules of a safe encounter, that the driver remain in the vehicle with his hands where they can be seen. No, the officer has no reason to believe he has a gun or the inclination to use one, but he’s not willing to take any chances finding out.
When the driver alights from the vehicle, the cop immediately feels threatened. When the driver refuses to comply with commands, the sense of threat is elevated. When the driver argues, the threat reaches an untenable position.
What makes this video so instructive is that it went on long enough for the fear to dissipate. Harper was demanding to know why he was stopped, but the concern wanes as the interaction goes on. Harper wasn’t a real threat, but a guy who believed he was wrongly stopped and exercised his right as a citizen to know why he wasn’t left alone. It gave rise to a curious conundrum: If the officer didn’t have a Taser, would he have pulled his weapon? If Harper persisted in asking why he was stopped, would the cop have blown his head off?
The answer won’t be found in deconstructing Harper’s motivation, which seems patently clear, but in the cop’s, which is equally clear. Harper, from the officer’s point of view, had committed two wrong, the first being a crooked license plate. Hardly a sufficient reason to kill a man. The second can be characterized as contempt of cop, but that’s really not the case. The officer wasn’t angry with Harper for being insolent in his refusal to heed commands. The cop merely applied the first rule of policing: If someone was going to die on the street that night, it wasn’t going to be him.
This rule isn’t going to change. Fiscal watchdogs notwithstanding, I’m unaware of any police officer who believes that he’s paid enough to die in order to comply with the strictures of the law. No Supreme Court decision is about to leave his child fatherless. To the extent any justice is confused as to what this means, it means that a police officer will always err on the side of his own safety. If that means a citizen gets tasered, so be it. If that means a head gets blown off, well, that too.
Need evidence? Consider Justice Kennedy’s majority opinion in Sykes v. United States :
“The attempt to elude capture is a direct challenge to an officer’s authority,” Justice Kennedy said. “It is a provocative and dangerous act” that “places property and persons at serious risk of injury.”
It’s not that Sykes caused any actual harm, or even had a potential to harm anyone, but that the act of disobeying an officer is inherently dangerous. There’s no way to reconcile this with Brandeis’ dissent in Olmstead.
Lower court judges know this, even if they won’t put it into writing. Some will support it, covering it up to allow the appearance of the police officer being legally justified in putting his own safety about all else. Some will adhere to the law, the harm having already been done and incapable of being undone. There are more of the former that the latter.
What this serves to do is shift the burden of choice to the citizen, to the Bruce Harpers. Do we comply with the unlawful commands of the police officer, who has no lawful authority to tell us how high to jump in order to apply the first rule of policing, or do we assert our right to be left alone?
Make no mistake about it: Should you be bold enough to believe that law-abiding citizens are entitled to go about their lives without seizure by the police, or acquiescence to their commands, and thereby challenge the first rule of policing, there will be a price to pay.
On the other hand, it may come to pass, long after the fact, that there is some compensation for the pain suffered. Harper and the City of Bountiful, Utah, settled his civil suit for an undisclosed amount. Whether it was worth it is unknown.