The one-eyed cop is king. Funny, sad and pathetic, this video (there’s a second as well) of two guys in California, testing the open carry law, via Carlos Miller, provides a graphic illustration of how cluelessness rules the streets.
Breaking down what went wrong here, or who is right and reasonable, might be a fun exercise, except that it would also be a futile exercise. The problem is that two of the guys with guns are testing their rights, while the other two guys with guns also have shields, making the first rule of policing apply. No law, no right, trumps the first rule of policing.It is legal to open carry firearms in California as long as the guns are not loaded and the carrier abides by other restrictions, according to this site.
The officers detained them while they checked the serial numbers on their weapons and for possible warrants on the men.
The men were eventually released with their weapons.
Attempting to follow the officers’ spouting of pseudo-legal mumbo-jumbo will give a lawyer a headache. The toss about phrases that have some sort of connection to what’s happening, and yet make no sense in the context and usage. Are the two cuffed guys supposed to know this? Even if they did, what exactly are they supposed to do about it?
Clearly, the right to “open carry” presents a problem. A cop sees a guy with a gun and no shield and there is no way he is going to risk the possibility that the person may use that gun to harm him. There is no right, statutory, constitutional, natural, that trumps the first law of policing. And there is nothing a citizen can say, neither magic words nor steadfast adherence to principle, that will prevent the officer from using his authority.
Note that the officer tells one of the fellows that he’s a knucklehead, and he’s going to ruin it for everyone, because he’s “not cooperating.” As I learned from reading a t-shirt the other day, the opposite of irony is wrinkly, and the cop’s statement presents a fundamental wrinkle to the assertion of a right: If we have it, then by definition the police cannot abrogate it because it violates the first rule of policing. But nothing comes before the first rule of policing.
“How about you not trying to agitate the situation…” Well, the only way not to “agitate” the situation is to comply with the commands of the police. But then, we’re stuck in a vicious circle, since that leaves people free to exercise their rights subject to detention, search, subjugation and approval by the cops. That’s not quite free exercise, and should these fellows happen upon another set of police ten minutes later, they may well be put through the same “exercise” again. And again after that.
There are many groups reflecting many of the rights in which we believe and of which we hold dear, and they promote the idea that people take to the streets, assert their rights publicly and challenge the police to stop them. They’re taught what to say and how to say it. They’re told the police are not allowed to do the very things that are done in these videos.
Are they? Can the police violate rights at will? In fact, sure. They have guns and shields, and can do pretty much anything they want on the street. And what are you going to do about it?
The two men in this video are eventually released. Had they been arrested, they would be charged with something and would assert that they’ve committed no crime. The best outcome would be that charges are dismissed, an outcome by no means assured, and the upshot is that the cops win because the only party who suffered for the exercise of rights was the guy trying to do so. It’s not party, even if the charges are dismissed.
Some will suggest that they should sue the police. For what? Expensive, time consuming litigation, with a fairly questionable likelihood of prevailing (because the cops have a point about their authority to detain someone who presents a credible threat, even if that threat is a matter of right), may work for public interest groups that are well-prepared and financed for testing the law, but regular guys aren’t in a position to carry this water. And there’s no pot of gold on the other end.
And to be frank, should a court admonish the police, in the sternest possible language, that the conduct observed in these videos reflects a wholesale violation of the right to open carry in the State of California, it won’t change a thing. There is no court decision, no statute, and not even a right enshrined in the Constitution, that will prevent a police officer from making sure that you won’t harm him. Nothing is more important than him making it home for dinner.
On the other hand, the creation of videos like this, and disseminating them widely with appropriate commentary that reflects the fact that the police are regularly engaged in the abrogation of rights provided by law and discussed by judges as if things like this are a figment of the public’s imagination, provides the best opportunity to combat and challenge the first rule of policing.
It’s no magic bullet, but it’s the only opportunity available to keep the cops honest. No matter what legal mumbo-jumbo they spout.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Two bubbas aren’t my picks for testing the law. Who pleads the fifth outside of court? Who twice emphasizes they’re a partially disabled veteran as if it’s some kind of “we’re not criminals” hint?
I don’t think disseminating these videos is going to be much help, especially not by two bubbas who make themselves sound ignorant. I think their cause would be better off if they instead had someone educated and articulate in their stead (then again, I suppose that wouldn’t appeal to their target audience: the average voter).
You’re partially right though, the only way this is going to change is through litigation. Although it’s not the cost prohibition that’ll prevent the desired change. You could have a fancy lawyer who supports gun rights and would love to take on this cause, but it still won’t cause a change. The only way that’s going to get anywhere — precisely because of the judicial myth that cops do no harm — is if one of these guys ended up with some serious cuts and bruises.
Wouldn’t it be wonderful if two Harvard educated lawyers who were also aides to the Pope as part of the duties as Cardinals would carry guns in front of strip malls?
Except things don’t tend to happen that way, much as we might wish they would. Rights are tested by bubbas with feet injured in the Gulf. Or by activists with outlier political philosophies. Or guys with long rap sheets and nasty mouths. Because the rest of us really don’t want to be cuffed and spend a night in jail (or a decade in prison) to make a point.
And I am not suggesting that this is going to change through litigation. You’ve misunderstood. Litigation is game lawyers take seriously, but as the cops’ explication of rights on the street suggests, nobody else either understands or, truly, gives a shit. Court make grand rulings, using such important phrases as exigent circumstances, and some cop on the street spouts them to prove they mean nothing to him or anyone else. Neither regular folk nor cops have a clue what court decisions mean, and the truth is that they mean nothing on the street.
It’s all just words strung together which matter only to a small group of men and women who wear suits and hang out in courtrooms. What matters on the street is making it home for dinner. Everything else can get sorted out later.
The reason the cops are able to make all other considerations take a back seat to the first rule of policing is partly due to the increasing deference that the funny people in robes and wood-panelled rooms give them. Their rulings consistently expand the envelope that police are allowed to operate in.
At one time the robed folks held that it was legal to resist an illegal arrest, even up to the point of deadly force. Now they explicitly rule that that right no longer exists. Not only that but they construct exceptions to definitions, claiming that a detention is not an arrest, a Terry stop isn’t a violation of the 4th or 5th amendment, whatever.
Only if the legal power of the cops is reduced to the point that abusing their authority might result in a violation of the first rule of policing will cause any kind of change. If they think they would likely be subject to legal, forcible resistance, they’d be more willing to let discretion be the better part of valor.
While I’m not sure of the causal connection, you’re certainly right that judges haven’t helped any when the blindly approve whatever allows cops the greatest latitude.
You’re right, I focused on the wrong part of your post. Come on, SGH, I thought you were going to start weeding out stupid comments.
One of two implications result from such a powerful Rule #1. Either cops are jaded in their view that a disproportionate number of citizens are bad actors out to kill them, or they’re so irrationally afraid of the citizens they “serve and protect” that they take an improbable risk and amplify its control into an ethos.
That’s if you believe them. A third possibility: it’s all a bunch of bullshit they use to justify their abuses of power.
As far as Harvard-educated lawyers are concerned, well, they can’t risk breaking Rule #1 without risking their reputations. They’d be seen not as trumpeting their rights, but as disrespecting the law.
What you are calling the “First Rule of Policing” is actually the “Fife Rule of Policing” which involves wetting one’s self whenever an armed non-LEO is present. There are LEO’s that don’t but few that exist in California.
Hear, hear!