There’s a significant difference when someone is on the receiving end of cop love because he’s engaged in an act of malevolence, as opposed to an exercise of a constitutional right. But this also provides a rough Rorschach test for the degree of deference due law enforcement, or better yet, how highly we value order as compared with freedom.
Following yesterday’s video of the arrest of Amy Goodman, another video has emerged from St. Paul showing a lone officer attempting to arrest one person in the midst of many.
Orin Kerr at Volokh describes it thusly:
Based on the video, it looks like a single officer was arresting a protester when a crowd surrounded him and starting yelling to let the protester go. The protester being arrested went limp to make the officer drag him away, and then another protester ran over and knocked over the officer so the officer would let go of the protester being arrested. At first the officer responded with pepper spray to try to keep the angry mob away. But the crowd kept coming at him, so he let go of the person he was arresting and backed away to his squad car. The crowd then cheered their victory. Lovely.
What’s curious about this, and notable from Orin’s description, is that the basis for the arrest is unknown, and can’t be discerned from the video. While it’s possible that the person was seized for having snatched the chain of an innocent bystander, a tourist from Manitoba perhaps, it seems unlikely since such conduct rarely garners much support from the crowd. Instead of going the zebra route, let’s assume it’s a horse and deem the basis for arrest to be the protester’s refusal to obey the order of the officer to step onto the sidewalk.
After the protester goes limp, another person from the left appears to jump the officer, who adeptly dodges the effort. The officer then sprays an arc of some chemical substance, likely pepper spray, into the faces of people to his right. You see people (other than the fellow who tried to jump the officer, who is now out of the frame) holding their eyes. The officer may have sprayed the jumper, but he clearly sprayed the crowd of people to his right who did not jump.
This video presents three events, each of which tests our tolerance for order versus freedom. First is the arrest itself, which is in issue because it comes as a result of an exercise of a constitutional right. Even if we assume that the officer issued a “lawful order,” and arrests the protester for his failure to obey, some (like me) take issue with a police officer’s authority (remember, police have no “rights”) to order to citizens to exercise their constitutional rights in a manner that pleases them, provided that they do not exercise it in a manner that causes an independent bad act, like smashing car windows or burning storefronts.
Second is the jumping of the cop. At first blush, this would seem to be precisely the type of independent bad act that mandates police action. But, if one considers the action of the cop in arresting a protester for the basic protected exercise of a constitutional right, then one might view the officer’s seizure as a crime, and the jumper as a good Samaritan simply trying to protect someone from a criminal act. Cops are no more entitled to commit crimes in uniform than anyone else.
Third is the spraying of the crowd, following the jumper. At this point, the officer likely fears the crowd, as one jumper can embolden a mob to act similarly. His fear seems quite reasonable. But he sprays a bunch of people who are merely standing there, watching. They’ve done nothing individually to pose a threat to the officer. They had nothing to do with the jumper. They were just standing there. And they were subjected to a chemical spray to their faces. Does the officer’s reasonable fear authorize him to spray innocent bystanders? Do innocent bystanders have the right not to be sprayed in the face by a police officer? Who trumps who?
Orin, in response to a comment to his post that question his view, offers a very clear statement of where along the spectrum he falls:
If you think a police officer is arresting you wrongly, the proper response is to wait for your post-arrest preliminary hearing, get out when the police can’t make out probable cause, and then sue the crap out of the police for wrongful arrest.
The improper response is to assault the officer. That just makes you guilty of assault.
This is the official position, the one taught by lawprofs to law students when they question how to respond to adverse situations. It’s true when the judge orders you to do something you firmly believe you should not have to do (comply now and appeal later), and it’s true when a police officer orders you to do, well, anything.
Aside from the very practical aspect of putting far too much faith in the system for vindication, there is another aspect that doesn’t seem to find its way into Orin’s response: Does beating the criminal prosecution, and even pocketing some cash down the road, provide an adequate substitute for the immediate exercise of constitutional rights?
What if the government was to hand all the protesters $100, but deny them the right to free speech? Would that be a constitutionally acceptable trade-off? Would $1000 do it? More?
If I’m from the government (note that the government gets its lucre from the People) and can buy off constitutional rights that annoy me or interfere with my ability to put on a play, then this would seem like a really good deal. The play goes on without a hitch, and no voice from the crowd spoils the song and dance routine.
Is this really the proper way to deal with the exercise of constitutional rights?
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I’m pretty sure that you’re both wrong. Here is another view of the same incident. Issues of interpretation aside (more on that later) and assuming that it is the same incident, as it appears to me to be, it may be worth noting that the cop stops spraying — and walks away — not only after the crowd stops rushing him, but after a sheriff’s deputy drags the protester away / takes him into custody.
J-dog, I think the issue under discussion is less about what happened in this particular instance than the propriety of protesters’ and police reactions to each other.
And, watching the video frame by frame, it appears that someone from the crowd pulls the arrested protester away, and there is no other cop in sight as the officer walks off, away from the crowd.
No doubt the police will also review the video frame-by-frame but I doubt they will be able to identify the person that assaulted the officer from the video. On the other hand if there are witnesses that will testify they might be able to charge that subject.
I noticed a bus in the background and I wonder if this if it was under attack by the crowd. If that was the case it would explain why officer took action with no back-up.
Why would you wonder about whether someone can be identified and charged? Why would you wonder about a bus?
As to the first, definitely. I think it’s an interesting subject, and one that I’m probably going to comment on, after I think some about it.
As to second: yup. I was wrong; frame by frame, it’s clear that it’s somebody else from the crowd, although I would have sworn that it was a sheriff’s deputy doing the pulling.
Good points about the money, Scott. Because my impression, from having been to many of these protests (at the conventions and other big protests), and reading detailed reports from many more, is that the police higher-ups have a policy of violating protesters’ constitutional rights. They know that lawsuits will follow and that 5-10 years down the road the municipality will pay a settlement to some protesters. There will be hearings at the City Council and many articles in the local papers about how the police were wrong. But they keep doing it, virtually every time, so I can’t help but think it’s a policy decision that the benefits of violating our rights outweigh the costs. We need to somehow increase the costs.
If people able to see exactly the same video clip over and over, and they still have different interpretations, it’s easy to see why witnesses seeing it only once, and from different angles, would give conflicting testimony. Now send in a cop or a reporter to interview the witnesses, and just imagine how many different versions of the event he could come up with depending on who he talks to.
Anyway, we can have a philosophical argument about whether it’s proper to use force to stop an illegal arrest, but as for the cop spraying innocent bystanders, I have no doubt that the innocent bystanders had every moral right to forcibly stop the cop from assaulting them with pepper spray. That’s pure self-defense, and it shouldn’t matter if the cop mistakenly believed he was acting in self-defense as well. (I wouldn’t want to be hauled into court over this, however.)
As for the larger question of when it’s right to use force to stop an unlawful arrest, I tend to fall back on the social contract that establishes government. We give up certain of our natural rights—the right to vengeance, some of the rights to self-defense and self-determination—to a neutral authority, with the understanding that that authority will act to protect all our other rights. This is why governments are instituted among men.
A single breach, a single officer making a single unlawful arrest, isn’t enough to void that contract—we recognize that no system can be perfect, and the contract provides means for redress, so resistance to lawful authority is improper. Instead, as Orin says, “the proper response is to wait for your post-arrest preliminary hearing, get out when the police can’t make out probable cause, and then sue the crap out of the police for wrongful arrest.” Even if the “contractual” means for redress doesn’t work every time, it’s still the right thing to do.
However, if the prescribed means for redress is consistently and systematically thwarted by the people in whom we have placed our trust, if they refuse to police themselves, then at some point the social contract is void. They cease to be the lawful authority, and we have the right of insurrection.
In theory, this should happen all at once. If we become fed up with our government, we should rise up as one and overthrow it. In practice, the country is not that homogenous and the issues aren’t that clear. So perhaps from time to time we have to probe the boundaries. Perhaps from time to time we have to vandalize a speed camera, nullify a law in the jury room, or tear an arrestee from a police officer’s grasp.
(I don’t usually like to get this abstract and philosophical in your comments, but you did ask the question.)
Take a deep breath. Let it out. Again. There ya go. Now don’t you feel better?
No! I don’t feel better! Christ, if deep breathing was all it took to feel better do you think I’d spend so much time reading libertarian literature, ranting on my blog, and posting 450-word screeds in other people’s comments?!?
Journalism 101: Don’t Get Busted
A common complaint of the media is that it has a liberal bias, which of course is a reflection of where the complainer is standing.
Journalism 101: Don’t Get Busted
A common complaint of the media is that it has a liberal bias, which of course is a reflection of where the complainer is standing.