Crossland II: Sit Back and Enjoy It

If a police officer, for no particular reason, decided to put his handgun to your temple and inform you, with a wry smile on his face that he was going to pull the trigger and blow a hole in your head, he was would certainly be wrong.  But if you were to, say, kick him in the nuts in order to stop him from doing so, you would be committing an assault on the officer. Afterward, you would be properly convicted of the assault, while the police department would consider investigating the officer’s conduct to determine whether it violated department policy.

It didn’t have to be this way, but when the law elevates the protection of police over the right of a person to defend themselves from police misconduct, as reflected by United States v. Crossland, that’s what happens.

Yesterday,  we discussed how Judge Florence Pan, employing the tired default rationale of finding the cops’ story credible absent conclusive proof to the contrary, found against Crossland and his witnesses on the issue of whether he physically fought back after cops approached him without reason, stood him up against a wall and began to search.  No one, not even the compliant Judge Pan, contends otherwise.

The government presented evidence that on the evening of April 24, 2010, Metropolitan Police Department (“MPD”) Officers Brandon Baldwin and Kim McCue were engaged in an “aggressive high visibility patrol” in the area of Third and Bryant Streets, N.E. The officers, who were in full uniform, stopped appellant and his cousin Joseph Womack, both of whom were standing near the corner, as part of their effort to gather information about a rash of recent shootings and drug sales in the area. Officer Baldwin acknowledged that neither man was “doing anything unlawful” when the officers stopped them. The officers instructed both men to place their hands on a nearby fence for a weapons pat-down. Appellant “initially” complied, but quickly became “agitated,” telling Officer Baldwin words to the effect of “Fuck this shit. I’m tired of this.”

Only after this point is there any contested issue of fact.  What is uncontested is that Baldwin and McCue used their shields to deliberately violate Crossland’s constitutional right to be left alone, to refuse to be seized and searched, to tell the “aggressive” officers in whatever language he chose to go away.

As  Radley Balko noted with incredulity:

Both the trial court, the appeals court, and even the prosecution acknowledge that because Crossland was doing nothing wrong before the incident, it was illegal for the police to stop, detain, and search him. Nevertheless . . .

 . . . as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) . . .

So even if the police illegally stop you, detain you, and beat you, you aren’t permitted to resist. Just roll over and take it. Submit.

District of Columbia law specifically provides that forceful resistance to an unlawful order is unlawful.  The rationale behind this is that in the scheme of an orderly society, where questions of the lawfulness of a police officer’s order may not be conclusively known until a post-hoc determination by a court, the officer should not be put at risk of harm by forceful resistance.  In other words, it’s the flip-side of the First Rule of Policing, get home for dinner.  Cops will do whatever they have to do to make sure they are not harmed. If that means harming you, so be it.  And the law backs this up.

The problem, however, is that the rule elevates a policy to protect police officers from resistance over the right of a citizen not to be harmed or abused.  The underlying assumption is that a police officer would never use his authority to do so.  Some of us see this assumption as flawed, bolstered, perhaps, by the thousands of videos conclusively showing otherwise.

At WeLoveDC, the question is raised in the extreme:

In other words, once that officer tells you you’re under arrest, shut up and take it. In 2008 the Dolson case upheld that law when it was applied to a man who held a gate shut against an officer – after telling the officer he did not consent for the officer to enter without a warrant – and, after the officer forced his way in and reportedly began choking him, broke the officer’s nose. Whether or not fighting back against an officer while being raped is similarly illegal – assuming they are simultaneously arresting  and assaulting you  – is still an open question.

Of course, there is a practical aspect to fighting back to prevent your being raped or murdered by a cop, that being the concern over arrest for forcible resistance pales in comparison to being raped or murdered.  Conceptually, however, a police officer engaging in illegal conduct, whether merely choking a man (who might well have been killed had he not fought back) is, under the rule, entitled to engage in crimes without fear of challenge. 

It’s not an open question, but an assumption that police officer would never do such a thing.  There is no conceptual basis to distinguish a police officer who uses his authority to rape or murder from the police officer who merely seizes a person without basis, puts him against a fence and searches him.  There is no line of demarcation where some misconduct can’t be resisted while other can.

In his concurrence in Crossland, Judge Schwelb writes:

As Judge Thompson points out in her opinion for the court, we are of course bound by the trial judge’s credibility findings, and I fully agree that Crossland’s convictions must be affirmed. But if anything good is to come from this unfortunate street encounter between the police and a citizen, it should be an end to the unconstitutional police conduct revealed beyond peradventure by this record. If this hope is naive and unrealistic, then to that extent we are less the land of the free than we would otherwise be.

While he is, to a large extent, bound by the trial judge’s credibility findings, that Crossland physically resisted, his lament over the flagrantly unconstitutional police misconduct is bittersweet. At least he bothers to say something about it. But the words are empty and meaningless, made all the more so by the fact that the panel majority couldn’t be bothered.

To call this naive and unrealistic is a bit of judicial arrogance.  It’s far worse than that.  The check on unfettered and unlawful police power is the legal system.  We give these folks cool robes and a high bench, and expect them to use it to enforce the law, parts of which demand that agents of the government not harm us.  A good whine about police misconduct may make for a nice read, but the job is to stop it.  When the best a judge or court can do is complain about its impotence to stop police from engaging in illegal conduct, then it has failed miserably.

And what is a court to do?  The D.C. law that a person cannot physically resist unlawful police conduct smacks of unconstitutionality.  Consider, we have a fundamental constitutional right to be left alone, to not endure the unreasonable searches and seizures, and to defend ourselves from harm.  The government does not have rights, but authority.  Its authority ceases when it steps over the line of lawfulness; the government has no authority to engage in unlawful conduct.

Does a law the deprives people of their fundamental constitutional rights, in order to give the police a free pass on engaging in conduct for which there is no authorization, pass muster under strict scrutiny?  The governmental interest is the avoidance of escalation of police/citizen encounters into violence and the protection of police officers from harm in the performance of their duty. 

The contrary interest is the protection of people from harm at the hands of police.  The facile historic judicial and government assumption, as expressed in Judge Florence Pan pathetic finding, that cops just don’t go around randomly harming people, is false.  Sometimes they do.  And it happens with sufficient regularity, sufficient normalcy, that the governmental concern for the safety of its cops over the safety of its citizens cannot be tolerated.  It’s not that cops don’t deserve to be protected, but that the people do as well, and the protection of the people is a primary function of government. 

And yet Terrance Crossland is the guy convicted.

8 thoughts on “Crossland II: Sit Back and Enjoy It

  1. Dan

    “Consider, we have a fundamental constitutional right to be left alone, to not endure the unreasonable searches and seizures, and to defend ourselves from harm.”

    Not only that, but don’t we have a right to bear arms? I’m not a 2d amendment guy, or a gun rights guy, but I thought the second amendment was at least somewhat rooted in the notion that a citizenry without arms can’t protect itself from the likes of King George, i.e., those in power. I’m not saying the Constitution gives you the right to open fire on a federal agent inquiring at your door, but it appears we’ve gone from a right to bear arms, to loss of the right to punch, kick, bite, scratch and pull hair in defense of your person, never mind your property.

  2. SHG

    The the right to keep and bear arms is the manifestation of the right to defend oneself from attack, including attack by the sovereign’s agents, perceived by the founders as a very real threat, if not the greatest threat. So yeah.

  3. Frank

    Rhetorical question: What happened to US v John Bad Elk. Like most of the Bill of Rights it seems to be a dead letter.

  4. SHG

    John Bad Elk v. United States  was a decision under the English common law, which applied at the birth of our nation.  The English common law was subject to change by statute, and has been, in this case specifically by D.C. Code § 22-405 (b). There’s nothing rhetorical about it.

  5. Don

    When I wrote that it was still an open question what I meant was that no court has yet upheld such an insane over-reach of this law. I certainly do not assume that a police officer would never misuse his or her authority that way; sadly we don’t have to look far to see such things. Hollaback DC recently published a woman’s account of being repeatedly sexually harassed by an officer and subsequently shrugged off by the appeals board. Other sexual assaults in other districts aren’t hard to find note of either.

    However I’m certainly inclined to think they’d keep toeing the line on this; the law says you don’t get to resist and if physical assault to harm is forgiven why wouldn’t they uphold the prosecution? Across the nation we see a refusal to allow anyone to hold prosecutors responsible for misconduct so egregious that it puts people in jail for a decade and ruins lives. What’s a little rape or fondling by comparison?

    Thanks for keeping the subject alive.

  6. SHG

    Don, this is a law blog, where most of the readers are lawyers and law students. This isn’t a political blog, or a local D.C. blog. We deal with these issues. We read the caselaw. We don’t expect non-lawyers to either be aware of or, frankly, understand the scope of the law or the inherent legal issues. We understand. 

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