A Dying Art

The descriptions of Israel Hernández-Llach are either glowing or demeaning, and in some cases both. From the Miami Herald:

At just 18, Israel Hernández-Llach was already an award-winning artist, on the threshold of acclaim in Miami Beach art circles. He was a sculptor, painter, writer and photographer whose craft was inspired by his home country of Colombia and his adopted city, Miami.

And in the next paragraph:

He was also a graffiti artist, known as “Reefa,” who sprayed colorful splashes of paint on the city’s abandoned buildings while playing cat-and-mouse with cops, who, like many property owners, consider graffiti taggers to be vandals, not artists.

But according to Miami Police Chief Ray Martinez:

Hernández-Llach was confronted by officers about 5 a.m. as he was vandalizing private property, and he fled, leading officers on a foot chase. It ended at 71st and Harding when he was cornered by police and ran toward the officers, ignoring commands to stop.

Whether one views graffiti as an urban art form or criminal vandalism tends to color one’s view of what happened next. It shouldn’t. Regardless of the artistic merit of graffiti, it has two insurmountable counterpoints: first, it’s illegal. Second, the “canvas” is someone else’s property. And it’s not like Hernández-Llach didn’t appreciate either point, as he did his tagging in the wee hours of the morning and had a lookout to warn him. He took his chances in the name of his “art.”

If he wanted to make the argument that tagging was an art form that shouldn’t be criminalized, then he should have been prepared to be caught and argued the merit of his actions. Instead, he fled. That ends the debate. If Hernández-Llach was unwilling to take the weight for what he was doing, then he cannot avail himself of the argument that what he was doing should not be a crime.

But neither is that the issue, because after cops caught up to him and cornered him, things took a turn for the worse.

[Lookout] Félix Fernández said he saw about five police officers chasing Hernández and shoving him against a wall. Then he saw his friend on the ground, surrounded by police.

“He is a very skinny guy, very small” Fernández said.

According to the police, this is what happened:

“The officers were forced to use the Taser to avoid a physical incident,’’ the chief said.

He was hit once in the chest and collapsed, Martinez said, at which point officers noticed he was showing signs of distress. He was transported by fire-rescue to Mount Sinai Hospital, where he was later pronounced dead.

Note the subtle but critical aspect of the police explanation that serves to change the story from the facile and wanton use of a Taser to an attempt to manufacture justification, that cops were “forced to use the Taser to avoid a physical incident.”

The phrase “physical incident” is a tricky one. While it says little about what actually happened, it says more about what did not happen.  No cop was threatened with harm. No cop feared for his life. The First Rule of Policing was not invoked. At most, there was the potential that the police might have to touch Hernández-Llach, though the sub rosa implication is that, having already been forced to run through the streets and work up the dreaded sweat, the police might have been put through more grueling physical activity to catch him again.

Most cops aren’t in shape for so much physical activity. All that running makes them unhappy, and when they’re unhappy, they tend to seek a means of stemming further unhappiness. A Taser comes in handy at that point.

One reaction to the death of Hernández-Llach was that no one should die for graffiti, which would be relevant had the cops executed him purposefully, but that’s not what happened here. Rather, this was a far more banal use of a Taser, a quick and easy way to end the unpleasantness of a chase, that shouldn’t, according to Taser International, do any harm, unless of course the target was on drugs (because drugs are evil and make anything that happens to drug users an acceptable by-product as their own fault) or had some underlying pathology for which no one can be blamed. Either way, you can’t blame the cops or Taser International for their use of less-than-lethal force.

And therein lies the rub. Use of a Taser is use of force. Use of force has limits for a good reason. It’s not be used for convenience, for the benefit of fat cops who are too tired to give chase and too lazy to manage their perp. What’s missing here, even from the police perspective, is that Hernández-Llach employed force of any sort that justified the use of force in return.

The worst that might have happened, had Hernández-Llach taken off again and left the cops in the dust, is that a vandal got away. From a law enforcement theory perspective, it’s understandable that police don’t want to create an incentive for anyone violating the law to flee, and so they shouldn’t condone flight as a viable method of eluding arrest. And yet, tagging is not a crime that puts others at risk of harm, and therefore not a crime warranting use of force in the absence of a threat of harm.  Grab him if they can? Sure. Corner him? Why not? Put out an APB and get half the Miami police force as back up? Whatever.

But do not use force to subdue a person who threatens no one with physical harm.

As it happens, 18-year-old budding artist Israel Hernández-Llach died. Even if he hadn’t died, but merely suffered the pain of being tased, feeling the dart penetrate his body, hitting the pavement as his body contorted from the debilitating shock, it would have been wrong. Tasing isn’t benign in itself, but the infliction of substantial pain on a human being that can only be justified because force is met with force. The fact that it’s not non-lethal, but less-than-lethal, drives this point home. If a cop wouldn’t have pulled his Glock and aimed at center mass, then he had no business pulling his Taser either.

18 comments on “A Dying Art

  1. C. N. Nevets

    So, in cop-speak, tasering someone isn’t a physical incident?

    Is there a dictionary somewhere that would help us civilians understand their non-standard use of the English language, because I’m pretty sure that Hernández-Llach felt like he got physical incident-ed.

    1. SHG Post author

      I think the “physical incident” language wasn’t referring to what the cops did to Hernández-Llach, but what they are trying to cobble together as the potential of what he would have done to the cops.

  2. Dallin Smith

    Well thought out article. It’s very nice to see someone approach this with LOGIC rather than sensationalism and agendas. I completely see your point, but I do disagree with one thing – the restriction on using non-lethal force to subdue a fleeing criminal or one resisting arrest. We have to remember something here – tasers are almost always completely non harmful to the individual past incapacitating them for a short time. Cops are often shot themselves with tasers when entering the force so they know what it feels like. They used it on an individual who had resisted arrest completely and WAS putting others in danger. What most people don’t realize is when you run from the cops, you are putting a lot of people in danger. Chasing a criminal involves high speed driving which puts pedestrians and other vehicles at risk. It puts police officers at risk when they have to do things like jump over chain link fences onto cars. Hundreds of police officers and civilians are injured every year in this manner. Another thing you have to admit is you don’t know the shape of these cops. You are only assuming they were fat and out of shape. That’s a generalization. All in all, if you resist arrest, even non-violently, you understand that you may get tased and rightfully so. There’s nothing wrong with using a non-lethal highly temporary force to subdue a resistant criminal. Tasers are a highly valuable tool for cops and should be used to stop non-lethal criminals who do not cooperate. Lets stop giving free passes to criminals resisting arrest.

      1. Dallin Smith

        I’m sorry, I thought we were having an intelligent conversation. Please excuse me if I’m incorrect. You don’t know who I am. You don’t know if I have a PhD in criminal justice. You know almost nothing about me other than my opinion differs from your own. What a way to respond!

        Why has our country degraded into one where instead of discussing things civilly and trying to come to compromises and see other points of view, we immediately dismiss others with different opinions as idiots and demean them? You’ll never convince others of their errors by doing this (nor will you ever be humble enough to realize any errors in your own logic). If you want to continue in a more intelligent way, please tell me which of my opinions you don’t agree with and explain, using the actually laudable logic I sincerely credited you with earlier, why I could be wrong in my opinion.

        1. SHG Post author

          No, we were not having an intelligent conversation. No, you don’t have a PhD in criminal justice. And no, you are not entitled to be taken seriously when you post a comment of such mind-numbing stupidity. There is a rule here, that no one is allowed to make people stupider. You have violated that rule. You’re gone.

    1. Gloria Wolk

      Dallin, do a little research. You will find tasers can be lethal. There are numerous lawsuits filed on behalf of families who lost a loved one due to police using tasers incorrectly and/or on the wrong person. One example, from Burlington, VT, was a man who police acknowledge should not have been tasered because their department procedures prohibit using tasers on people who are cognitively impaired.

      Put that electric charge directly on the chest of someone who may have an invisible pacer maker or another heart condition, or use too strong a charge for the body build of the victim, and you have a homicide.

      The medical examiner in Vermont called it death by homicide.

      Why should innocent citizens expect to be tasered for resisting arrest, when resisting arrest may be nothing more than expressing Freedom of Speech?

      1. jakee308

        And especially given that the police have a very “flexible” definition of what constitutes resisting arrest.

  3. Dallin Smith

    You’re right, we’re not having an intelligent conversation because you’re not willing to converse. It’s an immature, grade-school tactic to dismiss someone publicly as an idiot so you can avoid acknowledging their opinion or having to use actual facts or sound arguments (which you may not have) to contradict them. It’s how people suppress free thought and speech. Did you ever consider that by not allowing differing viewpoints on your blog, YOU are the one making people stupider? Or did you ever consider you might be wrong? I seriously doubt it. You were right about one thing though. I am gone.

      1. AP

        What happened to the good ol’ days when people would leave a comment telling you they found your blog informative and would bookmark it for future reference? I’d take that over Dallin Smith’s “intelligent conversation” any day of the week and twice on Sundays.

  4. Dallin Smith

    OK, I’ll try one more time. What was stupid in my original post and why? You never know. You might convince me.

    1. SHG Post author

      First, it’s not your choice to give one more (or ten more) tries. This is my home. You comment at my sufferance. Second, what brand of narcissism makes you think I care to convince you or anyone else of anything. But most importantly, I allowed your comment to post, despite its content, for whatever it’s worth. You aren’t entitled to any more of my time or bandwidth. This will be the last comment of yours to see daylight here.

  5. Dallin Smith

    I don’t expect you to post this – I am posting it just to address you. I apologize if you felt I attacked you in your home. I was not trying to be narcissistic. I just assumed you wanted your comments section to be a place for public conversation. I have to admit though, I laughed at being called narcissistic. Just before calling me that, you had said “You comment at my sufference.” Perhaps we can laugh at this incident together and go on our merry way.

    As a final note, you may be interested in this article which illustrates what I was trying to say: [Ed. Note: Link deleted per rules]. From the first line in the article: “More bystanders are injured or killed during high-speed police chases than by stray bullets.” In other words, you could be putting just as many people in danger by running from police as by resisting arrest violently. Thus why use of a taser, which the cops never imagined would be lethal, might be warranted to stop putting more lives in danger.

    1. SHG Post author

      Against my better judgment, I allow this final comment to post. There is nothing new about the dangers of high speed pursuit. What you miss is that (1) this need only have involved a foot chase, but more importantly, (2) there was no reason to put anyone at risk over the petty offense of vandalism. Your assumption that the police are somehow entitled to engage in a high speed pursuit, thus putting people at risk, over a puny offense is absurd. Risk lives to catch a graffiti vandal? That’s utterly insane.

      Turning to tasers, as Gloria notes, tasers are hardly non-lethal, but properly characterized as less-than-lethal, meaning that they do not inherently kill. But there are, at present, about 500 dead bodies attesting to the fact that they do, indeed, kill at times. And even when they don’t, they are a use of force, and the only justification for the use of force is to prevent harm from the use of force to someone else.

      So you have a petty vandal, no use of force, no automobile chase, no threat of harm to anyone, against whom force is used without any justification which results in his death. There is no set of facts that could conceivably justify killing people, anyone, to catch a vandal.

  6. John Jenkins

    Qualified immunity is just the greatest thing ever, apparently. Normal tortfeasors whose use of force ended up being excessive are liable for it (you take your victim as you find him). But, put on a badge and follow the correct amorphously defined “policy” and all of that falls away. I am not sure it’s the right policy in general, but exempting police from it sure seems wrong.

    1. SHG Post author

      Without qualified immunity, police would have to use intelligence, patience and exercise sound discretion. They might hesitate before killing someone. It just can’t happen.

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