The fact that we have something like a video to allow us to even discuss what happened on a Utah highway shoulder is a remarkable thing.  Before the advent of dashboard videos, we would have a defendant’s version and a cop’s version.  If this gave rise to any discussion at all, it would be a leap of faith as to which version we believed. 

Most people, in fact the vast majority, would buy the cops version.  Some would believe the cop because that’s what they are incline to do.  Others would simply go with the odds, and the odds are that the cop’s version would be more credible than the defendant’s, who we would presume to have a greater self-interest in denying wrongdoing.

Instead, we can debate what we see on the video and the reasonableness of the officer’s conduct.  This is a miracle.  It’s not perfect, as demonstrated by the many disagreements in what we see and what it means, but a miracle that we have something to see to generate debate.  If nothing else, it shows that no side is always right and that jumping to conclusions is unwarranted. 

Many of the comments here and elsewhere have questioned why, in my discussion of whether the video supports the argument that the officer had an objectively reasonable basis to believe that the driver was armed, did I ignore the many portions that demonstrate overwhelmingly that the officer had no such subjective belief.  They argued that this was a show of police bravado, the use of force to shut the driver up and impose obedience, and the entire discussion about whether he could have been armed was a silly waste of time.

The best answer I can give is that there was never any doubt, at least in my mind, that the officer used his taser to teach the driver who’s boss from the outset.  This was a given, and didn’t merit prolonged discussion.  It was clear from start to finish that once the driver refused to comply with the cop’s direction, he was going to be tasered into submission.  End of discussion.

That point decided, I turned to the more interesting issue of how so many otherwise “reasonable” people could bend over backwards to find a way to justify the unjustifiable.  Orin Kerr approached this from the purely legal perspective, employing the test that would be used by a court in assessing the propriety of the officer’s use of force.  

Orin’s focus, and that of his readers, was whether the conduct found an objectively reasonable basis, even though it was subjectively nonsense.  Mind you, they weren’t giving ground on the subjective intent piece, which was no longer in play as far as I was concerned, but the miracle of a videotape allowed us to sit back, munch on popcorn and decide whether there was an objectively reasonable basis.  It was great fun, since we weren’t in the line of taser fire. 

From a real world perspective, the defense need only address the rationale put forth by the prosecution, unless the judge is particularly activist and decides to superimpose his own views on the issue.  Of course, the defense would then be denied the opportunity to address the issue, since it would never be argued and come out of left field in the decision to smack us upside the head.  As a practical matter, we don’t raise issues against us that haven’t been raised by the prosecution, thus giving them additional ammunition to argue their position.  I have doubts that a prosecutor would argue that the tasering was justified by an objectively reasonable belief that the driver was armed because the evidence that there was no subjective belief is so overwhelming.  Thus, this entire discussion has been largely academic.

Still, we learn from all of this.  And we learn a lot.  All lawyers tend to see the world as an “us versus them” proposition, as do cops, lawprofs, and just about everyone else.  But as a criminal defense lawyer, I feel compelled to better understand what “them” is thinking and why, and then what I can do about it.  If I don’t get it, I can’t deal with it.  What I think means very little.  It’s about what others think that teaches me to be a better lawyer and allows me to be more effective.

And so the discussion raged, and I appreciate Orin’s help in making it happen, even if I get overly snippy or snarky in the process.  As a lawprof, it doesn’t matter as much to him since he won’t find himself in the trenches dealing with some cop and driver like this someday.  But I have, and very likely will again, and so will many of the other criminal defense lawyers who inhabit the practical blawgosphere. 

In addition, the many readers of Volokh, which is one of the most popular and widely read blawgs around, are part of the legal dialogue that influences what happens in our real-life practices.  While it would be easy to just blow the readers off as being inconsequential, it wouldn’t be true or helpful. 

We are all part of the “system” and discussions like these which may have some impact on how people in the system think and view the world can make a difference.  We expose others to different points of view than their own, and maybe get them to crack a little on their belief that cops can do no wrong, or that blind obedience to police is a moral imperative.  Plus, we have some fun in the process.   Welcome to the practical blawgosphere.