Orin Kerr, GW criminal lawprof at Volokh, parses the Utah Taser video shown here to explain why he believes it can be reasonable (and unreasonable) based upon perspective. It’s important to remember that Volokh is a conservative libertarian blog, and that Kerr is reputed to be a scholar on the subject of criminal law, and has many lawyerish young minds to mold.
Initially, Orin runs through what the cop did wrong, and how from the taser victim’s perspective he did nothing wrong beyond being noncompliant. Orin notes that the cop failed to inform the driver what was happening and what the consequences of his actions would be if he failed to comply. Ultimately, the cop fails to warn the driver that he is in imminent fear of being tasered (tased? As in “don’t tase me bro?”).
Then we get to the interesting part of Kerr’s analysis.
Watch the video again, and this time focus closely on the 2:30 to 2:40 window. The officer has just ordered the driver out of the car so he can arrest him for failing to sign the ticket promising to pay or appear. The driver sees that the officer has the weapon out and is ordering him to submit to the officer’s authority. But the driver makes perfectly clear he is not going to submit.
Already, there are a few flaws in the description. Orin projects reasoning onto the cops orders, but the cop doesn’t tell the driver why he is being ordered out of the car or that his arrest is imminent. So how does Orin know the cop’s purpose? Maybe he ordered him out of the car to teach the driver a little lesson in obedience?
Next, Orin notes that the cop has his taser out. To Orin, this indicates that the cop is sending the message to the driver that he should comply or bear the consequences. Does a show of force send that message to an ordinary person, who presents no threat to the officer? Or just a cop prop that no reasonable person would suspect would ever be used in the absence of any threat to the officer.
But here’s where Orin’s analysis goes seriously wrong:
Watch the driver’s hands during this dialogue. Police officers are all about the hands during traffic stops; they want to see them, and they want them out in the open where they can’t be grabbing a weapon. When an officer is pointing a weapon at a suspect, his greatest fear will be that the suspect has a weapon on him that he’ll try to use; getting control of the situation is essential. So he’s going to be paying close attention to the driver’s hands.
It’s true that a cop always wants to see the person’s hands. So where is the direction to take his hands out of his pockets? Where is the explanation of why the cop may have any reason in the world to be concerned about the driver’s otherwise normal actions under a stressful situation? It is not reasonable to expect the driver to read the cop’s mind. Nor is it reasonable to expect an ordinary person to think about such matters under stressful conditions. Nor is it reasonable to expect an ordinary person to suspect that common, everyday motions (putting one’s hands in one’s pockets) will evoke violence from a police officer. Normal people don’t think this way.
In this case, the driver does everything wrong with his hands. At the 2:30 mark, he puts his right hand in his right pocket; his right arm is opposite the officer, so the officer can’t see what he’s doing. Even though the officer has the taser drawn and is pointing it directly at the driver, the driver turns to face the officer and then starts walking away, yelling “what the heck is wrong with you?” and keeping his hand near his pocket. At 2:36, the driver seems to be fishing for something in his pocket while still walking away from the officer to get more distance between himself and the taser. Two seconds later, the officer fires the taser.
This is where it becomes clear that the academic’s view lacks practical connection with reality. It’s not just the hands. It’s the bulge. The minutes the driver exited the vehicle, the cop eyeballed the guy for a bulge, the telltale sign of a weapon. Guns are big and heavy. People who have never seen or held a gun don’t realize that they are big and heavy. Check the waistband and the pockets for the bulge. Check under the arms. No bulge, it’s safe.
The cop isn’t afraid that the driver is going to reach into his pocket and throw loose change at him. The only reason for a cop to be concerned is a weapon. There could be a small pocket knife, but the cop already has the taser out and aimed, so he’s not worried that the driver will reach him with a pocket knife. There’s no chance of that happening. But most importantly, and regardless of what the driver is doing with his hands, there’s no bulge.
Why does it matter that a known criminal law scholar like Orin makes such rookie mistakes in his analysis? Because there are a lot of lawyers, and some of them will be your judge someday and others may be on your jury, who think they are learning about “real-life” criminal law from him. Orin, in a tone so reasonable that it’s difficult not to even conceive of challenging, says:
In sum, what makes the video so interesting is that the driver and the officer seem to be inhabiting totally different worlds. The driver is in the first world and the officer is in the second. I think we would all agree that the officer did a terrible job in the traffic stop on the whole; that guy needs a desk job pronto. But I tend to think that reasonable people could disagree on whether the use of force itself was unreasonable.
Was the use of force “reasonable” from the officer’s perspective? Only if one lives in a fantasy world where one deliberately closes one’s eyes to both the reality of police work and the fundamental expectation that police do not go around using force against citizens because they, the cops, are screw-ups. No Orin, I can’t agree that it was reasonable. And I can’t agree that your efforts to “explain” the cop’s perspective demonstrate that you take a fair and reasonable view of police/citizen encounters. You blew this one big time.
Addendum: Orin Kerr replies here. If there’s anything in there, or in the comments, that you would like to address, leave a comment here and we’ll do what we can.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
The “different worlds” thing makes a lot of sense to me. The driver, knowing he intends no harm, doesn’t realize his actions could be a perceived as a threat. The officer, knowing nothing about the driver, can’t be sure. It’s a situation that could easily go bad, as it did.
Now which of the two people in the video (a) created the situation, and (b) has supposedly been trained in handling such situations?
That’s a very cogent analysis assuming arguendo that the cop’s “different world” is reasonable. I still don’t buy the premise that the cop felt threatened in fact, or was reasonable in feeling threatened in theory. Regardless of the hand in the pocket argument, I believe that the cop tasered the sucker because he just wouldn’t do what he was told. And as noted in the previous post, that’s just one of the really great perks of being a cop.
More on the Taser Video — A Response to Scott Greenfield:
Over at Simple Justice, defense attorney Scott Greenfield has an interesting objection to yesterday’s pos…
No, the officer here was just being a JERK!!! And guess what, since IDIOTS ON JURIES, AND JUDGES almost ALWAYS BELIEVE the cops — THEY GET AWAY WITH IT.
WHAT THIS MEANS IS THAT SINCE THERE’S NO ACCOUNTABILITY FOR COPS, THEY DO WHATEVER THE F$#@#$ THEY FEEL LIKE!
WHAT’S WORSE, since 9/11, the cops constantly perceive us, the common citizen, as the BAD GUY!
And this isn’t just happening to blacks or Hispanics (although there’s a BIG propaganda against Hispanics), it’s happening to the AVERAGE ANGLO CITIZEN!!
WHEN ARE WE GOING TO DO SOMETHING ABOUT IT? WHEN ARE WE GOING TO SAY ENOUGH!! WHEN ARE JUDGES AND THE DA’S GOING TO DO SOMETHING ABOUT THIS HORRIFIC ABUSE THAT IS TEARING THE MORAL FIBER OF THIS COUNTRY AND CAUSING DEEP DISTRUST IN AMERICA’S CITIZENS?
WHEN????
Scott
Your criticisms about the lack of a “bulge” are off the mark, as there are many small handguns that would not be visible.
But, read the 10th Circuit decision yesterday in an excessive use of force case: Casey v. City of Federal Heights. I think it supports the argument that there was an excessive use of force (although the facts in that case are more egregious).
You can find it here:
http://ca10.washburnlaw.edu/cases/2007/12/06-1426.pdf
While there are guns that are small, you don’t assume reasonableness based on the absence of any indication to believe someone is armed. By that assumption, every person is armed and dangerous and should be shot (or tased, as the case may be). There must be an affirmative objective indication to believe that someone is going to pull out a gun to make tasering the person reasonable, not the absence of any reason to believe he’s armed because there are the rare, odd weapons that could be invisible.
This isn’t about whether the officer was reasonable from our prespective, but from (per Kerr’s view) the officer’s perspective. Did the officer tell the driver to take his hands out of his pocket, showing at least the minimal concern that he had a weapon? Nope. Was there anything to indicate, from the officer’s point of view, that he was in possession of a weapon? Nope. This isn’t about invisible weapons, but about the lack of any observable, articulable reason to believe he was armed.
And, there aren’t “many” guns that would not be visible. A few, and they are almost never seen on the street in typical enounters. These are “zebra” arguments, and it is unreasonable to assume, in the absence of any basis, that the driver has a “zebra”. Remember, this is about reasonableness, not the most bizarre and unjustiable assumption. Those are arguments made by people desperate to find any excuse possible, no matter how farfetched, to justify unreasonable actions.
Reasonable Is as Reasonable Does
It seems that we’ve cut Orin Kerr to the quick with
Reasonable Is as Reasonable Does
It seems that we’ve cut Orin Kerr to the quick with
Reasonable Is as Reasonable Does
It seems that
I’ve watched the video several times and spent considerable time thinking about it. I’m definitely not a fan of the troopers’ demeanor nor his communication skills, but I’m not convinced that a more calm manner would necessarily have mollified Massey into signing the ticket and taking the matter to the court. If you listen to the tape after Massey is handcuffed and sitting in the police car, he was still arguing and questioning why the trooper stopped him in the first place. Whatever the trooper’s manner, the place to have a long debate about a traffic violation is not on the side of the highway.
When the trooper ordered Massey to get out of the truck, what was unsaid was “so I can handcuff you and take you to jail”. But Massey clearly was still imagining that he could somehow argue with Gardner and convince him that there was not an earlier temporary speed limits sign – as evidenced by how he walked up behind the trooper and was pointing off in the distance.
Trooper Gardner had taken a poor tactical position by turning his back on Massey and as he realized the violator was right behind him with his arm raised he knew he was in a position where he was not really in control of the situation. He might be a badge heavy cop, or he might have misunderstood Massey’s actions, but he made a decision to order Massey to get into a position from which he could be handcuffed safely.
No matter if you believe that Gardner is a total screw up or was just having a bad day, at that point he had made a decision to arrest Massey and it was a lawful arrest. Massey was presented with a law enforcement officer giving him commands and showing the intent to use force. His choices were limited to comply or refuse, and by turning and starting to walk away he was saying “No”.
What were Gardner’s choices? Holster the taser and attempt to restrain Massey? Gardner might not win that battle – handcuffing a resisting suspect is not an easy thing. Let Massey go and call for backup – which could entail a vehicle pursuit that endangers the lives of other officers and motorists? Not a smart choice at all. Use the taser? An effective option as it turned out.
As far reaching in the pocket the presence or absence of a bulge means nothing. At best it was a sign that Massey was not complying and Gardner did not have control over the suspect. At worst it meant Massey was reaching for his car keys so he could leave, or going for a weapon that was not readily visible.
I still have to disagree. One sentence before the use of force would have changed everything: “Freeze or I am going to shoot you with this taser.” I’m not saying the officer would have right to do so, but that he never, at any point, forewarned the driver. There were numerous points during the developments preceding the use of force where an explanation would have de-escalated the situation. That’s as much a part of the officer’s job as giving out the ticket. Just because he has weapons doesn’t mean he is entitled to use them at will.
And, there aren’t “many” guns that would not be visible.
Again, respectfully, I disagree. If you’re ever out this way, and of a mind to, sit through one of my carry classes — on me.
The snubby — Smith & Wesson 642; nothing exotic — I almost invariably carry is effectively invisible. Throw it in a decent pocket holster and the pocket holster in a pair of Dockers or the equivalent and it won’t be detected in anything short of a pat down.
I was doing an HR218 class for a bunch of retired cops last year — average time on the street easily close to two decades — and the only one who spotted the snubby in the pocket was the friend of mine who knew just how and where I carry.
I also had a semiauto on my hip. When I was discoursing on the virtues of the pocket snubby, one of the guys gave a snort. “So why are you wearing that instead of carrying a snubby in your pocket?” Several nods of agreement.
Life sometimes hands you a softball.
“I am carrying the snubby.” Out came the snubby (yes, pointed in a safe direction); a dozen pairs of eyes got very wide.
That aside, as I said, I agree with you about the cop in the video. He zapped the guy to punish him for not complying quickly enough, although he may — may — have also been nervous about the passenger, but not very. (If he was, he had about three obvious moves, none of which he made, before or after the zapping. He easily could have take a couple of steps back and drawn his pistol, for a starter; he’d have had no problem explaining that away.)
Joel,
If you put your snubby in your pants pocket, no jacket, etc., and walked around, are you telling me it wouldn’t show? Whether it’s the bulge (which your cops are telling is what they are trained to look for to determine if someone is armed), or the shifting weight, that’s the norm. Having done literally hundred of gun cases over the years, I can think of maybe 5 that involved pocket guns, and in each of those cases the cops saw the bulge. And what is the likelihood that the sort of fellow who is going to fire on a cop will have a Keltec?
There are no doubt far more guns around than I’m aware of, and I have no doubt that you are more familiar with guns than I am. But do we disagree that cops are trained to spot the bulge? Why is that? Or should cops assume that every one is armed because, like you, they can’t see a weapon and should just shoot first and check later?
Let’s assume that my experience with guns in New York, a place where people are generally not allowed to carry, skews my view because the types of guns illegally possessed tend not to be legally purchase and high tech types. Are the people you train, who purchase handguns legally and obtain carry permits, the general sort of folk who kill cops? So the weapons they carry aren’t in the “reasonable” universe of weapons cops are afraid of.
The point is, I stand by the bulge because that’s what a “reasonable” cop looks for. They may not be thrilled by a guy with his hands in his pockets, but the remedy is to tell the guy to pull his hands out, not use force and then claim he believed he had a gun. That’s my point, and the entire big guns debate has been a tangent that moved the discussion away from the main point.
And if I’m ever in your neck of the woods, I’ll take you up on that class.
If you put your snubby in your pants pocket, no jacket, etc., and walked around, are you telling me it wouldn’t show?
Yup; I am. Which has saved me from some serious inconvenience on a couple of occasions.
And a J-Frame snubby isn’t exotic. (Not unrelated: one concern that street cops I know of have about modern urban dress is how loose the pants are, and how they could be faced with a guy who has damn near anything in his pocket and not see a bulge.) As to what folks buy on the streetcorner, I don’t think they generally get the same variety of choices that those of us who can shop legally do, sure.
You’re quite right that the folks I train are unlikely to kill cops, or pull guns on them at all. Which is one of the reason that, by and large, nervousness about permit holders has dropped dramatically during the past few years, hereabouts.
As to what cops look for, and what they think they look for, I think it’s often two separate things. And when you add in what they say they were looking for, I think you’ve got yet another thing going on.
Most of the time, I think they’re keying off body language, rather than bulges.
Easy check: a PDA or wallet in a modestly tight pocket (say, in jeans) will have about the same bulge as a J-Frame in a pocket holster. In Dockers, or any reasonably loose pants where the pocket is sewn to the belt line? Effectively nada, in all three cases.
As to what the remedy is, we’re in agreement; I’m not disputing your main point, which which I whole-heartedly agree, but, rather, am quibbling about the details.
Then I’m going to defer to you on your quibbles.
if the officer felt in danger or the possibility of danger why did he break the cardinal rule – he turned his back on the person he was arresting. Further, when he turned back, there was no assessment of the situation. He was reaching for the taser as he was turning. He seemed intent on showing the man who refused to sign the ticket who was boss. When he was being arrested, is it a requirement to have the Miranda rights read during or immediately after arrest. This officer seemed to refuse to read them just because this motorist (aka citizen)demanded they be read. The police and the ‘investigative committee’ may have found the officer’s actions ‘reasonable’ and ‘justified’ but I believe the citizens, the everyday people, who will sit on the jury of an expected law suit will find otherwise.
#1- I am a Law Enforcement Officer.
I have seen this video and the other news videos including the one on CNN interviewing the suspected speeder and the UHP spokesperson and have watched them several times.
This Officer is totally in the wrong. He should no longer be a police officer and Utah needs to train and select their officers better.
Is it normal for the UHP to initiate a traffic stop before the infraction occurs?
You can clearly see the 40 MPH sign in front of the officers squad car in the video before Mr. Massey passes the UHP squad car. The CNN video shows Massey stating that he had not passed the 40 MPH zone and thought the officer was pulling somebody else over because he had his lights on BEFORE the posted sign and before the suspected speeder passed the UHP squad car.
Also, since when are UHP squad cars “see through”?
You can definately see the posted sign (40 MPH) in front of the squad car prior to the UHP officer iniating the traffic stop. How can Mr. Massey see the 40 MPH sign when the UHP car is in front of it, blocking the sign from on-coming motorists?
Is it UHP’s standard, to iniatiate “Use of Force” even though it is “non-lethal force” on an individual because they are pointing at a sign? You can clearly see Mr. Massey pointing at the sign when the Officer draws down on the subject with the Taser Gun. At which point during this situation did Mr. Massey show threat to the officer? I believe that when the Officer drew the Tazer and drew down (pointing it at the subject) severely escalated the situation which threw Mr. Massey into a fight or flight instance, which is normal behavior.
I think this officer acted very un-profesionally, and should of stated that by signing the ticket does not mean admission of guilt. I think the Offcier has an EGO problem and should not be an Offcier of the Law.
Also, forcing a person to sign a ticket is against your constitutional rights. 5th Amendment….
No person shall be compelled in any criminal case to be a witness against himself (herself). A signature on a ticket is a witness of a person being present at the scene of a crime (violation), and therefore represents a statement or admission of presence at a crime scene. This thereby is, though not necessarily an open admission of guilt, is an admission to proximity of a crime scene and is therefore, prejudicial against a person and thereby, a testimony against ones self.
Wow. You present exactly the right attitude for a law enforcement officer, one whose purpose is to serve and protect. JL, you are the type of cop who deserves to wear the shield and carry the gun. Most importantly, your comment proves that there are people out there who can be trusted to fulfill their duty. You deserve the public trust.
A truly appreciate your stopping by and leaving a comment. We get far too jaded around here, since we see so many things go wrong and tend to focus exclusively on the bad things that cops do. I don’t know where you work, but if I ever need a cop, I hope you (or someone who shares your views) is the one who responds. Thanks.
Notice how the police officer traps Massey into the ticket. They do that a lot here. Speed limits will randomly change since we are ALWAYS under construction. Right as the limit changes he breaks while awaiting the car to pass him and immediately goes after the kill. My father served as a firefighter for 37 years and I have respect for police officers who don’t abuse their position. This guy DID. Even my father is disgusted at what SLC/Utah police have become.
Furthermore, if the police officer was competent he would have known that you’re allowed to leave a speeding ticket unsigned in the state of Utah. If he knew his job he never would have asked Massey to step out of his vehicle. At that point, the officer violated his rights according to Utah State Law. Why wouldn’t the police officer read him his rights or tell him why he was being arrested? Utah troopers are egotistical nazis for the most part.