The First Rule of Policing: A Demonstration

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. 

27 thoughts on “The First Rule of Policing: A Demonstration

  1. Jim Majkowski

    I believe you’re giving cops like this one too much slack when you say it wasn’t really contempt of cop and he was genuinely concerned for his own safety (or is your tongue that deep in your cheek?). There seems also to be a second rule of policing, which is “always be in charge of any situation.” As Kennedy implied, direct challenges to an officer’s authority are anathema, regardless of whether that authority extends to that situation. Any complaints are to be presented later, in court, if at all. Where people like Kennedy and Alito will rule in a neutral and detached manner.

  2. SHG

    No tongue in cheek.  I’m not suggesting that the officer actually felt threatened, but that he wasn’t going to take any risk regardless.  But I don’t see this as a contempt of cop issue; that he was teaching Harper a lesson about insolence toward police.  Granted, the two are very close, and it could easily go either way.

  3. Marc R

    That video is disgusting. Absolutely no reason for the cop to keep screaming at him to turn around. All the cop had to say was “I pulled you over for having your tag crooked 4 degrees off center; it’s a $15 no points, non-moving fine. When you stand up like this I cannot get in my car and write a ticket because it would look like I’m retreating.”
    The guy pulled over was in the wrong by getting out of his car, but the cop aggravated the situation. Tasering him was out of line. The cop could have simply waited the 15 seconds for backup if he was so scared of the ski bum.
    There’s really nothing to do differently since SCOTUS thinks cops are angels.

  4. Aaron G

    The only thing the victim did wrong was fail to give the cop power over him.

    If cops are so worried about getting home for dinner, maybe they should stop detaining citizens for nitpicky bullshit like crooked license plates.

  5. Dannyj119

    “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?”

    To answer both questions:
    1. At 0:36 the cop radios to dispatch that he has the suspect at gunpoint. You can see the tip of his barrel at the edge of the frame. You can also see him holster his gun on his right side after one of the other officers on the original officer’s left side fires their taser. You can also notice that the taser is pulsed/zapped multiple times while he is still holstering his gun.
    2. If he had a taser, he would have used it before backup arrived. What he needed, however, were two additional corroborating witnesses to testify on his behalf after they deliver the standard punishment for ‘contempt of cop’ under the guise of resisting arrest due to uncontrollable muscle spasms while electricity is being forced through the body.

    Really, I believe this cop didn’t have a taser. His only two options, since de-escalation apparently is not in his vernacular, was to have backup tase and dogpile, or blow his head off. “You will comply.”

  6. SHG

    Actually, the question was posed as more of a rhetorical.  That said, your assumption in number 2 is likely, but still an assumption. Maybe he just wasn’t as big a dick as it appears, pointing his gun for defensive purpose but not inclined to taser as Harper did nothing to warrant it.  Unlikey, but people can be like that sometimes. They aren’t necessarily malevolent when they just want to make sure they make it home for dinner.

  7. James

    I think you give a lot more credit to the cop than some other commenters, but I have to disagree with a few key points. First is the idea that what Harper did was reasonable. It wasn’t. Thousands of drivers are involved in vehicle stops every day and don’t IMMEDIATELY jump out demanding to know why they were stopped. Sometimes people do get out because they don’t know they’re not supposed to, but comply when told to get back in. Second, an order to get back into a stopped vehicle is not an unlawful command. An officer has the ability to control the stop with this regard and does so for legitimate safety concerns, both his and the suspect’s. Failure to comply with that order is a crime. Third, I completely disagree that the officer’s fears would dissipate because the suspect “only” wanted to know why he was stopped. Harper continued to get more and more aggressive, including advancing on the officer and yelling/cursing. One might argue that this is a reasonable response to the officer’s aggressiveness, but that would do nothing to alleviate the fears of an officer placed in this situation. Some have suggested that the officer could have just explained the reason for the stop and it would have made everything better. Obviously these people have incredible foresight that neither I nor the officer have. MAYBE it would have made everything better. Or maybe it would have just led to the next line of argumentative non-cooperation. Is the officer expected to stand on a dark deserted street and play twenty questions with an aggressive and uncooperative suspect he’s trying to arrest? The point is, the officer – any officer – never KNOWS that a suspect isn’t a threat. When officers die in traffic stops due to the actions of someone they’ve stopped, it is almost always because they underestimated a threat or believed that a person wouldn’t hurt them. Backing down or trying to reason with someone uncooperative and screaming at you is downright unsafe. This officer exhibited a huge degree of restraint, probably aided by his fears of using an inappropriate amount of force and winding up as a “bad cop” news story. He didn’t deploy his taser until he had backup and continued applying if after (what sounded like) Harper became physically resistant. Harper’s “pain and suffering” were a direct result of his own poor choices, illegal ones at that.

    Also, Aaron G, which laws would you like the police to not enforce and which ones would you like them to? Apparently you believe that cops should “know better” than to enforce the laws you don’t consider important and you think that their expectation of safety can be compromised when enforcing said laws.

  8. SHG

    Stop at the point in your comment where you note that “thousands of drivers are involved in vehicle stops everyday” and don’t do what Harper did.  So what?  That may well be true, but does that give rise to a reason to tase (or shoot) Harper?  His “crime” is failure to obey.  Whether it’s a lawful order has to do with whether it was a good stop, which I can’t dispute since I don’t know Utah law, but at worst it was a minor infraction.  It was a crooked license plate, for crying out loud.  Let’s not forget that.

    So he disobeyed the order. What if the officer had just told him why he stopped him and then, if he didn’t comply, would have had far better reason to be concerned.  But to conclude that the harm was justified because he disobeyed a command is the type of rationale only a cop could love, where disobendience of their command, no matter how trivial the justification or how easily they could have diffused the situation, is good enough reason to harm someone. 

    And ironically, even cops feel otherwise when it’s them or their loved ones on the business end of the taser.  Suddenly, they get religion too.

  9. James

    At the point that the stop is legal (which we assume for the sake of argument), the “seriousness” of the original offense goes out the window. Harper responded to a common driving event – getting pulled over – with an uncommon and threatening act. Does this alone justify a use of force? Of course not. But it prompted a lawful order which was made out of concern for his and Harper’s safety. And Harper’s response to that lawful order led to what happened next. If you’re thinking of this in terms of, “guy gets stopped for crooked license plate, then gets tased,” you’re just being willfully ignorant of what happened between those two events. My first point was in disagreement of how you characterized Harper’s initial actions, not a lone rationalization for everything that followed. To claim otherwise is a straw-man argument.

    I’m glad you phrased your question as a “what if.” Because that’s just what it is. What if he had just answered that question and then the follow up? We don’t know. But we do know that Harper refused one lawful order after another and began screaming at and advancing on an officer who was trying to arrest him. There’s a reason why the officer was telling Harper to turn around and put his hands on his head. It’s because approaching someone who you intend to arrest is dangerous in general, much more so if that person has already demonstrated a refusal to cooperate and is being aggressive. Making them unable to see you (turning around) and keeping their hands clearly visible and away from their pockets or waistband (hands on head) makes that approach substantially safer. Since Harper refused to cooperate with these commands he was tased so that officers could approach him. Would he have drawn a gun or swung at the officer if he’d approached without incapacitating Harper first? The officer has NO WAY of knowing that.

    Again, you oversimplify the rationale for the use of force that occurred. It wasn’t just because some command went ignored. It’s because specific commands issued in the course of a (presumptively lawful) arrest were ignored. You have the luxury of Monday morning quarterbacking this police officer’s decisions knowing the final outcome of the stop. But to the officer every minute that he spends entertaining Harper’s questions and standing out on that street makes the situation more and more unsafe. The *possibility* of a peaceful resolution had the officer answered Harper’s question does not and should ameliorate the officer’s very reasonable real-time fears that it could also make things worse.

    Lastly, does anyone care that Harper was simply being an asshole? No one likes being stopped by the cops, especially if you truly believe you’ve done nothing wrong. But that doesn’t excuse acting like this. Taking your fundamental rights to heard and inquiring why you were stopped does not require you to be aggressive and uncooperative. Forgive me for such a pedestrian belief, but at some point being this stupid should hurt.

  10. Bob Mc

    If the ONLY reason Mr Harper was stopped was the misaligned license plate, then based on my reading of the Utah Statute quoted below, (and no IANAL) it would appear the stop was not legitimate.

    41-1a-404. Location and position of plates.
    (1) License plates issued for a vehicle other than a motorcycle, trailer, or semitrailer shall be attached to the vehicle, one in the front and the other in the rear.
    (2) The license plate issued for a motorcycle, trailer, or semitrailer shall be attached to the rear of the motorcycle, trailer, or semitrailer.
    (3) Every license plate shall at all times be:
    (a) securely fastened:
    (i) in a horizontal position to the vehicle for which it is issued to prevent the plate from swinging;
    (ii) at a height of not less than 12 inches from the ground, measuring from the bottom of the plate; and
    (iii) in a place and position to be clearly visible; and
    (b) maintained:
    (i) free from foreign materials; and
    (ii) in a condition to be clearly legible.
    [b] (4) Enforcement by a state or local law enforcement officer of the requirement under Subsection (1) to attach a license plate to the front of a vehicle shall be only as a secondary action when the vehicle has been detained for a suspected violation by any person in the vehicle of Title 41, Motor Vehicles, other than the requirement under Subsection (1) to attach a license plate to the front of the vehicle, or for another offense.[/b]

  11. SHG

    The escalation is relative to the initiation.  You don’t shoot people for littering, even if they disobey orders.  And screaming the same “order” over and over doesn’t escalate the encounter into a serious threat.  As for Harper’s being a jerk for not complying, Harper has the right to ask. The cop could have answered.  That doesn’t make Harper the jerk because most people would just comply, and certainly doesn’t mean that “being stupid should hurt.”

    If that were true, there would be an awful lot of hurt people around, and a lot of them would be cops.

  12. SHG

    3(1)(a) says the plate should be in a horizontal position, which means not crooked.  But it regulatory and trivial, the sort of stop a cop makes when he’s bored, and not the sort of thing that any person would believe he would be stopped for.

    Had the cop just said, “I stopped you because your plate was crooked,” it would have been over.  Had Harper been cool long enough to hear this, it would have been over.  But this is what happens when trivial things happen and personal rights meet the First Rule head on.

  13. Aaron G

    The whole “omg I felt threatened” thing is tiresome. Most law enforcement officers go their entire careers without the need to draw their weapon.
    And saying it’s about the driver’s safety puts an equally bad taste in my mouth. It’s as if the driver, not the officer, is responsible for any aggression he causes in the officer, like taunting a bull.
    Even if we assume police officers can justify as prudent the act of pulling someone over for a junk violation and exercise complete dominion over them when they question the officer’s authoritah, it doesn’t in any way justify the officer’s escalation of force to less-than-lethal (but sometimes actually lethal).

  14. Bob Mc

    I agree it’s trivial and I that this whole thing was needlessly escalated.

    My point is that 3[b]{4} says “Enforcement by a state or local law enforcement officer”…”shall be only as a secondary action when the vehicle has been detained for a suspected violation by any person in the vehicle of Title 41, Motor Vehicles, other than the requirement under Subsection (1) to attach a license plate to the front of the vehicle”

    In other words even the legislature thought it so trivial they don’t allow it to be the primary reason to pull someone over, and allow it’s enforcement only when you’ve already been pulled over for something else.

  15. Jesse

    It’s hard to understand where there is a lack of malevolence in this incident. If the cop merely wanted to “make it home for dinner”, well, there’s nothing stopping him from getting back in his car and leaving the situation. The potential punishment for failing to prosecute a crooked license plate is almost certainly zero.

    The reason this happened was simply because police do not de-escalate. They bark orders, and people comply, case closed. The citizenry will simply not be permitted to get away with disobedience toward a police officer.

    Besides, what if this officer had actually answered the guy’s question? While pointing a gun at the guy he says that it was because his license plate is crooked? He’s going to look pretty thuggish and foolish when his dashcam video gets released to the media.

    What I’d like to know is why the act of sitting behind the wheel of a car makes cops go nuts. If they stopped a pedestrian for jaywalking and that person started asking what they did, this would never happen. But man, you open that car door and you’re lucky if you don’t get ventilated. What’s the problem getting out of the car and discussing things face to face?

  16. SHG

    The police are trained to control the situation, that the most dangerous thing they can do is cede control to the suspect.  But you hit the nail on the head when you write:

    Besides, what if this officer had actually answered the guy’s question? While pointing a gun at the guy he says that it was because his license plate is crooked? He’s going to look pretty thuggish and foolish when his dashcam video gets released to the media.

    You bet.  But that wasn’t what was going through his head at the moment.  He just had to maintain control at all costs, no matter how absurd the scenario was.  Only afterward, when he was getting ribbed in the locker room by the other cops, would it dawn on him that he could have handled it better for all involved.  Even now, he’s looking both thuggish and foolish.  He put himself in a no win situation.

    Of course, had there been no dash cam, no one would have believed it.

  17. Pete

    I thought he was waiting for backup, but immediately after the first taser ‘deployment’, the guy was rushed by the original officer and two other uniforms. Maybe one of those guys was riding passenger in officer McFirstOnScene’s car, but if so, I didn’t hear him screaming.

    I think the arrival of backup likely emboldened him, and locker room talk of ‘lighting suckers up’ came into play, maybe.

    Because a minimum presence of three armed and uniformed law enforcement officers isn’t enough to peacefully subdue a citizen who is merely asking questions while empty-handed. No, they have to subdue him no matter what it takes. Thank goodness for tasers, the less-lethal alternative only used when an officer would otherwise use his sidearm!

  18. Blind Guy

    Lawful stop. Lawful order. Lawful use of force. I wonder how much all that lawfulness cost the county?

  19. Shane

    You have a right to be told why you are being detained. A moron cop who yells orders after being asked to justify those orders does not become right by continuing to yell orders. Those are five sadistic sociopaths who need to take off their badges and see some prison time. When Americans “get on their knees” whenever they are told, then America is gone.

  20. SHG

    Be careful with this one. While you do have the right to know why you’re being detained/arrested, you do not have the right to the information upon demand, nor do you necessarily have the right to be non-compliant until you’ve been told.  This gets into a grayer area that might be confusing and dangerous in other scenarios.

  21. Sam Whittemore

    As a black guy, an executive, a family man and a taxpayer, I have zero faith in the Legal or Justice system in this country. I suspect one day I will be shot for the following words: 1)” no, I do not consent to a search of my..”, 2) “On what probable cause do you want to search my…” 3) On what grounds am I being detained? 4)Am I free to go? 5)Get your hands off my 13 year old daughter, you pervert with a badge!

    Having traveled all over the world, including in Russia, China & Mongolia during the cold war, I have to say the most frightening, rude, and unfortunately, deadly bureaucracy I have ever dealt with, as a law abiding citizen, is the US law enforcement. they are far more menacing than the Russians, East Germans or Chicoms ever were. They will kill you in an instant because “they felt threatened”.

    What has happened to the concept of Liberty? Service? That the government worked for us, and was subservient to we the people? Now in the name of “Safety” we have to demonstrate subservience, including having them grope our intimate parts, in order to not be shot? I prefer the “risk” of Freedom.

  22. Sean

    The reason the first officer on scene didn’t deploy his own taser was likely b/c he’d drawn his service weapon (gun) as soon as he felt threatened by the subject. He simply could not re-holster the gun and draw the taser before the ‘suspect’ could rush him and overcome him.

    Essentially, once he pulled his firearm, he either had to de-escalate the situation (which obviously wasn’t going to happen) or wait for backup to arrive so that he could have one of the other officers tase the subject.

    Look up “the 21 foot rule” if you’re having trouble understanding the concept.

    Regardless, if you’re this terrified of doing the job of a cop, you shouldn’t be one. Period. Full stop. There’s no excuse for this kind of crap.

  23. CSAcitizen

    How did you get posted here ? I’ve sent in two posts with their message that the approval would show up in my inbox – but none ever are sent. How does one get their message on here as you did ?
    I like your post by the way. I agree.

  24. SHG

    Comments that are nothing more than rants that add nothing to the discussion are tossed. The is a law blog. If you have something meaningful to lawyers, please feel free to comment. If you want to spew pointless anger, then others blogs would be a better place for you to comment.

  25. Clint Richardson

    Actually, we barely missed recording three of our finest Multi-Jurisdictional, Unified Police District police a week ago laughing and foaming at the mouth about how fun it is to tazor people. So don’t assume they aren’t out looking for people to do this to.

    Remember, Salt Lake County no longer has a lawful Sheriff’s department – it was transferred over to this district. We are a police state now.


  26. Pingback: How to Tell the Difference Between a Police Raid and a Home Invasion (Hint: Sometimes You Can’t) | Cryptic Philosopher

Comments are closed.