On blogs, in classrooms and most notably in courtrooms, we discuss the way things should be. We argue that the fantasies and aspirations that appear on the pages of court opinions should be the way they happen on the street. We can reason out intellectually the right way, the lawful way, interactions between law enforcement and citizens ought to be framed.
And then there’s this.
While very little actually happens in the video, it’s jammed with issues, questions and problems that, but for a poor choice and finger twitch, could have led to a very violent end.
Washington State is an open carry state, meaning that no license is required to carry a weapon in open view. In other words, it’s like the Wild West, where any person can strap on a gun and walk about. At the same time, this is likely proscribed for felons and the insane, though how one distinguishes the law-abiding person with a gun in plain view from the felon or crazy with a gun on his hip isn’t clear.
Here’s the problem: if the person with the gun on his hip is lawfully entitled to walk around that way, he has a constitutional right to be left alone, as he’s doing nothing suspicious, no less giving rise to probable cause. Contrary to what’s said in the video, probable cause isn’t required for the police to inquire as to identity, but reasonable suspicion is. So is there or not?
Officer Daniel isn’t going to wait to find out. The First Rule of Policing kicks in and he’s going to make sure that either way, he’s going home for dinner that night. So he draws his weapon. The rule is that an officer doesn’t draw his weapon unless he is prepared and lawfully authorized to use it, but that rule is down the list from the First Rule. Way down the list.
As other officers arrive, however, Officer Daniel speaks magic words: Gun, gun, gun.
This is where the potential for everything to go horribly wrong is at its strongest, as these magic words are a warning to officers who know nothing about what’s happening at the scene, have no clue whether a crime is happening and, most importantly, whether their lives are endangered. They now have only one bit of information: gun. As information goes, this is a big one, perhaps the gravest motivator of action there is for a cop.
In this video, no one gets crazy, rushes the scene with guns drawn ready to fire or, if the “perp” was down to get in a few cheap kicks to the head long after any excuse for doing so has dissipated. But the new officers on the scene could just as easily have reacted very differently. When a cop yells “gun, gun, gun,” it’s tantamount to a command to fire. There is a reason why the First Rule is first, and that’s because no risk of harm to a cop is worth shooting second.
Notably, when the camera pans left, you see another office on his cellphone, perhaps calling for a supervisor. He doesn’t look concerned. His hand isn’t on his weapon. His body language is relaxed. He’s neither ready nor interested in shooting anybody. He realizes there is no threat to his safety, and that Daniel over-reacted and is now stuck, refusing to back down for fear it will diminish his authority.
As for the person taking the video, note the timber of his voice, how it rises. His words suggest that he’s prepared for a confrontation, running what he would say through his head if the police confront him, but the calm assertion of rights gives way to the realization that although he may be doing nothing unlawful whatsoever, he remains a heartbeat away from a bullet.
Law-talking guys are usually able to string together some very persuasive and official sounding arguments of law in a courtroom, often in a stentorian basso voice that carries inherent authority. But had that been me behind the video camera, I can similarly imagine my pitch rising to an alarmingly high tone, and my words failing to be as artful as I might hope. You see, I would be scared to death of an officer with his gun drawn, regardless of whether I was right or wrong about the lawfulness of my conduct. It’s not how I envision myself dying.
And then the supervisor comes.
Aside from the standard “what do you have to hide,” perhaps the most effective line police have in their arsenal of persuasion, and his “explanation” that allows the cops to save face for having over-reacted, improperly drawn a weapon against citizen engaged in lawful conduct and created a potentially explosive situation, the supervisor diffused the tension, allowed the man taking the video to go on his way and everyone made it home for dinner that night.
No court will ever review what transpired here. No judge will watch these videos, except perhaps here, and be required to determine what wrongs occurred and whether extant search and seizure law makes any sense or has any reasonable chance of adequately addressing this scenario. The outcome was that the video-taker, the open carrier, was not arrested, searched or shot, so it falls into the dark hole of no harm, no foul.
But it’s really not. There was a harm. A person who had a constitutional right to be left alone from the outset was not left alone. A person who could lawfully take a video, lawfully carry a gun in plain view (regardless of whether you think that’s a good idea or not), was seized for a while and put in risk of his life.
And in fairness, nobody knows, based on the video, whether the open-carrier was a felon or insane, and therefore lawfully entitled to open carry a weapon. But since there was no reasonable suspicion to believe he was a felon or insane, there was no way for Officer Daniel to find out and he still had the First Rule of Policing to consider. That’s how things really happen on the street, and it’s kismet that this interaction happened without anyone being harmed.