Following the Pike pepper spraying of UC Davis students for violently sitting and adamantly refusing to ask “how high,” Brian Tannebaum writes that it’s time for a national conversation about law enforcement.
It’s almost a daily exercise, watching video of law enforcement conduct that raises eyebrows. The responses are always the same: 1) The video doesn’t tell the entire story, 2) We don’t understand the “adrenaline” that causes police officers to beat the living crap out of suspects after they are securely in custody, and 3) So what, the guy’s a criminal anyway.
We as criminal defense lawyers, civil libertarians, and yes, even some prosecutors and judges, watch these videos and know that there is a large segment of the country that finds this conduct just “part of the job.”
After some quotes from Alexis Madrigal at the Atlantic, which provides some historical context to police use of force to quell political protest, but also shifts blame from the individual cops who pull the trigger to the amorphous “them,” thus making no individual personally responsible for his actions, Tannebaum goes on to say:
It’s time to have a real conversation about this. It’s time for the media, government, civic and business leaders, and law enforcement, to sit down and talk about this.
Things need to change.
Now.
Fair enough. Let’s turn the floor over the Ken Lammers, former criminal defense lawyer turned prosecutor, seduced by the money and prestige of being a Virginia Deputy Commonwealth Attorney. If anybody on the other side is going to give this a fair shake, it’s Ken. So what’s Lammers’ view?
Yawn,
Is that it? Well, no. There’s more.
Here’s the tactic: Find a public location which you know police will be forced to clear, make sure others are around to take pictures/video, interlock in a way to make it very difficult for police to move you, and wait.
It works. There is absolutely no way for the police to look good when they clear the area as they have been ordered to. Tons of videos show up on the internet.
Police are being ordered to clean out the various “Occupy” camps. Nothing too surprising there. Those among the “Occupy”ers who are dedicated or professional protesters or among the group of people who look at it as a right of passage to get arrested by the police while in college have resisted. Nothing surprising there. Videos are all over the internet and news.
So if Pike wasn’t willing to spray them on his own, they would have to find some cop on the take and pay him off for a quick and dirty pepper spray, to make their radical bones? Otherwise, they won’t let them go to the anarchist’s ball?
In the end, the police cleared the sidewalk and the protesters got their moment of glory for standing up to the cops. They also got something to put out there to justify themselves.
So this was really a win-win? Cynical much? But Ken’s reaction to what happened at UC Davis is that it wasn’t a problem at all but rather part of a pre-scripted melodrama where all the players performed their roles. What’s to discuss?
Mark Bennett has also offered his thoughts to the conversation. While noting Madrigal’s point, that this isn’t only about Lt. John Pike (who has since been rewarded with a leisurely paid vacation), but we can’t ignore that it takes a finger on the trigger to make the pepper shoot out of the can.
The idea is symmetry itself. These officers are men and women who were to serve and protect the people. By attacking peaceful protesters they failed to protect those who needed their protection, and they instead served the political class by using violence against the people.
The people are insecure: they cannot trust the police because the police have shown themselves to be the enemy. That the people can’t fight injury with injury (the police are better-armed, and pepper-spraying a cop is likely a felony) does not mean that the people can’t fight back.
He suggests that every day, for the rest of his life, Pike should worry about whether a waiter spit in his food, or whether the guy who collects his garbage will forget to stop at his house. Again. The battle need not be fought with violence, but with fear that the basic conveniences of life may never be his again.
The idea of sabotage can be as crippling as physical sabotage. I remember reading once of a saboteur who left empty sugar bags on the ground near the open gas caps of his adversary’s vehicles. He hadn’t added sugar to the gas, but the idea that he had forced his adversary take the vehicles out of service. Not every waiter need spit in UC-Davis police officers’ food. Not every check they send need be “lost in the mail.” But these officers should be forced forever to wonder what, out of the million things that anonymous people can make go wrong, will go wrong for them next.
He’s a devious fellow, that Bennett. Let’s contrast him with the equally, maybe even more, devious Bill Otis at Crime and Consequences.
<sounds of crickets chirping, image of tumbleweeds blowing through deserted town>
While tough on crime thinkers like Kurt Scheidegger has crafter his very own Nancy Grace-esque name for the occupy protestors, which he calls the Collective Tantrum, Bill and Kurt were apparently too busy thinking about more important things to notice this happened.
Because I’m a generally fair sort of fellow, I gave some room to UC Davis Police Chief Annette Spicuzza’s explanation of events, which was followed by my explanation of why she was wrong. It’s not just me who says that it’s wrong to use force when there’s no threat of harm, but (thanks to Bennett’s commenter Mike Parr) the 9th Circuit Court of Appeals as well.
Because the officers had control over the protestors it would have been clear to any reasonable officer that it was unnecessary to use pepper spray to bring them under control, and even less necessary to repeatedly use pepper spray against the protestors when they refused to release from the “black bears.” It also would have been clear to any reasonable officer that the manner in which the officers used the pepper spray was unreasonable. Lewis and Philip “authorized full spray blasts of [pepper spray], not just Q-tip applications,” despite the fact that the manufacturer’s label on the canisters of pepper spray defendants used “ ‘expressly discouraged’ spraying [pepper spray] from distances of less than three feet.”
The problem with having a national conversation is that we all need to be talking about the same thing. Some of us want to talk about cops using force to harm people instead of serving and protecting, while others want to talk about why we just can’t follow orders. And others just don’t want to talk at all, because their team has the weapons.
Of course, John Pike will never be certain, as his waiter brings him his big, greasy burger, what’s in that special sauce. Maybe then he’ll want to talk about it.
Update: Via Balko/Gawker, here’s Fox News’ contribution to the national conversation.
“I don’t think we have the right to Monday-morning quarterback the police,” O’Reilly says, “particularly at a place like UC Davis, which is a fairly liberal campus.” God forbid! We’d never want to question Lt. John Pike’s decision to generously and indifferently dust peacefully sitting protesters with pepper spray from only a few feet away. Especially given that Davis is, you know, a liberal campus! And, gosh, even if we were going to Monday-morning quarterback the police, shouldn’t we remember, as Megyn Kelly tells O’Reilly, that pepper spray is “a food product, essentially”?
Tasty. Who doesn’t appreciate some fresh pepper on their Caesar salad? If only someone would develop a parmesan and anchovie spray.
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I keep reading comments by cops that this was acceptable given the “continuum” of force. Who decides what an acceptable continuum of force is? Given the outcry, it doesn’t seem that many, if most people who are not cops agree that this was acceptable at all. Is that one of those situations where the agency is given great deference to determine and implement? Somehow, it doesn’t seem like a good idea to allow the cops to decide the appropriate continuum of force. To me, the cops who are saying that this was appropriate are crazed.
The universally accepted norm for use of force has two prongs:
1. The first rule of policing, what gets them home to dinner safely.
2. What allows them to avoid bending over or otherwise exert time and effort.
One of the points that is lost in these discussions, (and this is why I want a national conversation and am happy to supply the wine) is that we have lost sight of the definition of “safe.”
Since 9/11 we have determined that anything, particularly any law enforcement conduct, that allows us to, or is propagated to us as allowing us to, go through our day remembering that we haven’t had a terrorist attack since 9.11.2001, is perfectly fine.
When we look at the UC Davis situation, people like me ask “how we’re we unsafe? What would have happened if those kids kept sitting there? Would people have gotten hurt? Would our safety be threatened?
My guess is that those kids would have elevated their conduct to 1. getting up to pee, 2) getting up to go get coffee, or 3) getting up to go sit somewhere else.
But the cops told them to leave, and therin lies the issue – contempt of cop.
The national conversation should be centered around what we as the public are ok with law enforcement doing whatever they want to accomplish the goal of effecting their orders, or whether the “last resort” philosophy should be used for tools like pepper spray, and other uses of force.
We have lost the notion that professionals (and I include cops in that category) have obligations to behave a certain way. When a judge tells me “no,” I’m supposed to object or do whatever the rules allow me to do to advocate. But at no time can I say, “judge, go f*uck yourself you moron,” even though I may want to.
There are consequences when professionals do what they want as opposed to what they are expected to do.
Those kids were annoying people. Shit, for that matter, I’d run out of pepper spray hourly.
Do what the cops tell you to do and they won’t have to use force. Problem solved. Pass the wine.
Exactly. So the question will always remain what “can” the cops do, not what “should” they do. The issue is always whether they were legally justified, not whether they could have done something less invasive.
And they will never tolerate any roll back of that premise.
JD Tucille had a perfect quote on this which I don’t have memorized. Paraphrased: If the cops insist on acting like an army of occupation, don’t be surprised if The Maqui play their role in return.
Until politicians, police, and “financiers” fear, or at least are seriously inconvenienced by OWS protestors there won’t be systemic change.
Madison and Jefferson would weep at seeing our protests for fairness versus the “uneducated” muslim world. Even the Greeks and Canadians throw down with more authority.
There are examples of use of force policies on the web but you will have to ask your local LEA for a copy of their policy because there is no standard. However they may not be willing to give you a copy.
I asked for a copy and reviewed it found several things I thought needed to be changed and was able to get some of them altered. I think a use of force policy should be subject to peer review as well as review by the city council.
What gets me are the seemingly self-appointed experts who are “consultants” and whogive media comment about what is appropriate use of force. I saw a story today where a man pulled over thinking some cops wanted to get around him and they, believing that he was in the area to traffic in drugs accosted him. The cops yanked him out of the car (after one told the other he so intended before giving a command to the man) and slammed him onto the pavement causing broken ribs and a smashed up face. The consultant said: “Despite how violent all this may look to a good deal of the public, independent police procedure analyst, and former Bellevue police chief, Don Van Blaricom, defends SPD’s actions as “appropriate.” He reviewed the videotape before speaking with KIRO Team 7 Investigators.
“Had they shot him or something of that nature, I think we’d all be saying that was excessive, but what they did was they took him into custody, using physical force, no question about that, and he was injured in the process. I think that’s unfortunate, but it’s not unreasonable under the circumstances.”
They found no evidence on the guy but arrested him for obstruction. He also appeared to have been trying to comply with the cops and was slammed to the ground within 6 seconds after the cop excited his cruiser.
The “consultant” sounds like a psychopath to me. How did he get any credibility? How did we reach the point where the servants are telling the masters how things are going to be done instead of the other way around?
The media finds someone who can be put on the air to fill up time with something they think is interestintg, then calls them an “expert” to justify their being there. Remember, the media sells commercials, not information. Everything in between commercials is filler.
John, policies exist to be trotted out to show someone you have one. They aren’t there to be used, but for show. It doesn’t matter what they say, but rather what the chief or superior officers tolerate. And the last thing any of them care about is what the city council thinks, but then, most city council-folk will happily defer to the “experts,” since they know best.
Sorta off-topic, but has anyone asked what the point of a college campus having its own individual police force is?
In most cases, major crimes that occur on campus are going to be turned over to bigger agencies anyway, so the campus cops are left to deal with a lot of minor stuff like this.
I’d be asking why UC Davis needs its own police force, but given the actions of police elsewhere, city cops probably would have done the same thing.
Most decent sized colleges and universities have their own police force, often called by a variant name but police nonetheless. They are small cities, and need patrol. though investigative service usually comes from the outside. One additional rationale is that the college police are more sensitive to students, their behaviors and needs, and will follow the policy dictates of the university. Not always, though.
It depends on where you live. It would not be a shock to learn you are correct in most cases. It does make a difference if you have people watching the police.
While I do see the rationale behind it, campus police usually just wind up being mall security with (a) guns and (b) the authority to make arrests.
The fact that not a whole lot happens on college campuses, in terms of major crimes, means that campus cops usually just blow minor alcohol and drug offenses way out of proportion. Then again, this characterization may just have to do with a campus police agency that a couple of clients of mine have dealt with.
Basically, I see the need for campus patrol but don’t see why they need to be full-fledged police officers.
To vague a comment to be meaningful.
Put 10,000 kids in one place, with occasional drinking and drug use, and the need for some policing and emergency servicing is understandable. Why make them full fledged cops? Because they can.
A university police department is an expense and there is no chance of getting grants to help pay for the department. A university president is responsible for the department but they have no background in law enforcement and the normally have them managed by a subordinante who is equally ignorant. If the cops mess up it could result in the president being fired.
They get a very poor return on their investment because they hire people with the wrong training and do not retrain them for what they actually do.
The university president doesn’t run the police. While everything in the university ultimately falls under her control, there is always a chief, who either is or isn’t sufficiently trained for the job, but neither more nor less competent than any other chief of a small force. The cops are academy trained like any other cops, but happen to work for the university force rather than another force. It’s a good job, little chance of getting shot.
No, it’s not a money maker, but they are part of the responsibility of having a university with a sufficient number of kids.