It seems that this critique of Orin Kerr’s explanation of the reasonableness of his “cop’s perspective” post has generated a lot of comment over at Volokh. Orin’s eply parsed my critique to focus on the “bulge” aspect, omitting the rest of the reasoning. I wish he had included the rest of my argument, but I guess he focused on the part that mattered. Although, Orin could have done the cut and paste a little more artfully.
Orin has now updated his reply as follows:
UPDATE: The commenters to the thread who are firearms owners or otherwise very familiar with firearms appear to agree that Greenfield is incorrect, and that there are several popular types of handguns that would fit in the driver’s pocket without causing a visible bulge. If that’s right, I suppose it shows the dangers of characterizing disagreement as a contest between “reality” and an ivory-tower “fantasy world”; that kind of overblown rhetoric is fun to write, but it seems a bit silly if the ivory tower ends up being right.
Now this is a little disingenuous, but let’s play with it for a moment. Of course there are some guns that are small, but this wasn’t about whether there was a tiny gun out there somewhere that could be invisible. It was about what indicators a cop looks for when he reasonably believes that there may be a weapon involved. My point was that hands in the pocket aren’t the key, and that cops look for the bulge.
So let’s cut to the comments, since they are relied upon heavily:
Occasionally, when I teach carry classes, I carry more than one gun on me, just to demonstrate how easy concealment is. It can takes a bit of time to set up, and the more guns I wear, the longer it is, so when I do it, I normally do it as part of dressing before I leave home.
This one time, I had seven guns on me in various places, ranging from a little KelTec to my .44 Magnum snubby , and found that I’d left the house a little early; I stopped off for a cup of coffee at a local coffee shop. I ended up chatting with a local cop — not anybody I knew, and while I know a lot of the locals, nobody I know was there — and we ended up chatting about the carry law, which had just changed in Minnesota from “may issue” to “shall issue.”
“I’m not worried about it,” the cop said. “We’re trained to spot guns.”
“Really.”
“Sure.” He pointed at my range bag, which I’d made a point to keep near me. “If you had your gun on you instead of in there, I’d know.”
And that, in my experience, is what constitutes reasonable to a cop. Police are trained to look for certain indicators. Yes, it isn’t foolproof, but it’s what a cop believes to be reasonable.
Let’s go to another comment:
The telling point for me in this episode is that after the officer had tased the victim and was handcuffing him while the victim was on the ground, and the victim was painfully complaining and questioning why the officer had tased him, the officer in responding never said that the victim shouldn’t have reached in his pocket because that raised the fear in the officer’s mind that he might be going for a gun. (And why didn’t the officer simply order the guy to take his hand out of his pocket before firing away?) Instead, the officer said in so many words, repeatedly, that the victim should have obeyed him. It was all about asserting the officer’s authority. The claim that the officer feared that the victim was going for a gun stinks of a made up after-the-fact excuse for inexcusable conduct.
And so it appears that not only was there no objective reason to believe the driver was armed, but there was no subject belief either. This is significant in that the idea that the officer “might” have tasered the driver because he feared he was about to pull a gun out of his pocket was rank speculation. But this discussion is theoretical, so we address the speculative as if it were true.
Most of the comment that Orin relies upon miss the point. It is not reasonable for a police officer to assume that a person is armed based upon the absence of any indication that he has a weapon. That there may be guns small enough to be hidden does not convert the tasering of an apparently unarmed person into a reasonable use of force.
By that logic, it would be reasonable for a police officer to taser, or shoot to kill if he only had a gun, every citizen who put his hands in his pockets, or in his jacket, or anywhere that someone could argue a weapon could be hidden, despite the absence of instructions to the contrary and the absence of any indication that the person is armed. The bulge was just the indicator that cops are trained to look for. There could be other indicators that would serve the same purpose. But the absence of any indicator at all is not sufficient evidence of a concealed weapon to taser someone, from my practical perspective. Do I misunderstand the argument?
Sure, it would be a very protective rule for police officers. But there would a lot of dead citizens on the ground. And this is the message that many Volokh fans want to send. One reader posted this question:
I have a sincere question to those who think the officer could have reasonably believed the driver was reaching for a weapon: Doesn’t that mean that if the officer didn’t have a taser, it would have been reasonable for him to shoot the driver dead?
Another answered:
— I know that if that had happened, I would have shown the video to my three 11-year-old sons so that they would learn a very valuable lesson about the importance of being civil and not disrespecting authority.
This statement is disturbing on a number of levels. But is it to protect his kids from vicious officers, or to teach his children to be supplicants? After all, the importance of being civil and not disrespecting authority is the most important thing a child can learn, right?
I could be wrong (and no doubt many Volokh fans will readily say “yes”), but is this really the message you want to send, obey the cops or die? I sincerely hope not.
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I think the most damning evidence in the video against the “reasonable conduct” position is the fact that the officer doesn’t immediately search the tasee. When the officer kneels down next to the guy on the ground, his hands are obscured but it is clear that he is removing the taser prongs and respooling the threads. If, in fact, the officer was concerned with the presence of a gun or weapon, why doesn’t he detach the holder on the guy’s belt or search his pockets after cuffing him? Most notably, the officer turns his back on the tasee without searching him for weapons, even allowing him to get to his feet and approach the officer from behind.
This belies the officer’s reasonable belief in the presence of a weapon and goes directly to the “obedience enhancement” theory that you posit and with which I agree. I’m surprised that neither yourself nor Kerr have pointed out what appears to be this most damning evidence against reasonable belief from the video itself.
Yes, the government does treat us as “supplicants,” because if we argue or don’t “respond with alacrity” to a government official we must be armed and willing to shoot a cop? The officer unnecessarily escalated the situation. I found that 99.9% of the time, a little patience and talk with a suspect will result in compliance to the officer’s commands. Almost always, a little patient explanation by the cop works wonders. Immediately “pulling” a taser or gun escalates the problem. If the man had been armed, there was *more* of a chance that the cop would have been shot.
There was never any question that the “reaching for a gun” explanation was a post hoc rationalization to justify his use of force, and I think I made that clear in the initial post on this video. But the subsequent posts addressed the non-existence of objective reasonableness rather than subjective. In other words, I was way past the issue of whether the cop tasered the driver because he actually feared that he had a weapon, but whether there was an “objectively reasonable basis” to construct this false argument to justify the tasering afterwards.
As to the officers subjective purpose, there is a ton of evidence that this was nothing more than the use of force to force to show the driver who was boss. But remember, what is most fascinating isn’t what was shown in the video, but the reactions to what was shown and how some people will see anything to come out on the cops side, or just approve of the use of force because cops are always right.
The message I give my kids — and my carry permit students — is pretty close to “obey the cops or die.” It’s “if you’re stopped by the cops, be overly polite, lawyer up, and shut up because if you don’t, your chances of getting hurt are large, and your chances of getting justice are small.”
Not because I think that’s the way it should be, but because I think that that’s the way it easily can be. If the cop’s in the wrong — and, yup, that can easily happen — it’s not something you’ll be able to fix on the street, and the more wrong the cop is, the more dangerous it is to try to fix it on the street.
Yup. If the cop had been acting on good training and out of basic professionalism, there’s almost no chance he would have tasered this guy, this time.
I conclude that he wanted to zap the guy for being mouthy, and got his wish.
As a practical matter, it’s the same advice I (and most) criminal defense lawyers give our clients. We vehemently disagree with the concept, but the time to argue it is in court (or on blawgs), not on the side of a road. When you explain your purpose as being practical, not because it is the American thing to do, we are 100% agreement.
The sick part about this is that we, the good, normal, non-criminal American public, are constrained to “obey or die.” It should not be this way. It is fundamentally wrong that this is this way we are forced to behave for fear of our lives. And if we don’t talk about it, argue about it, discuss it, whatever anybody wants to call it, then we are resigned to allowing the lowest common denominator with a gun and shield dictate the way we behave.
What is fundamentally American is to be able to question, challenge, disagree, or even dispute a police officer. We should be able to demand an answer to why they are ordering us to do something. We should be able to insist on engaging them in a normal conversation. And they should not feel entitled to shut up an annoyance by force with impunity. And they should not be encouraged to do so by the knowledge that most Americans believe that they are entitled to use force against a person because the person isn’t obeying them quickly enough, or obeying them precisely enough. They are entitled to respect. So are we. That this nation has succumbed to the notion that the police must be obeyed or die is one of the most horrifically unAmerican developments that could happen.
And yet, I give the same advice as you. But I cannot and will not state that because it’s practical, it is just and proper. It is wrong, and I cannot watch a police officer do as he did in the video and excuse it.
Well, sure. One way to fix that would be to make it easier for cops to lose their jobs for bad behavior, but that doesn’t look to be on the horizon where I live, and I doubt it is where you live, either.
It’s bad, but I, as a father and self-defense instructor — and you, as a criminal defense attorney — need to be telling folks about how things are, and not just how they should be.
Reasonable Is as Reasonable Does
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