While the Occupy Movement has failed to provide any clear message of purpose, it’s provided abundant video footage of police at work, allowing many to see, and hence judge, whether the cops’ use of force meets expectations and societal approval.
Another opportunity arose at Occupy DC yesterday.
While unlikely to cause the visceral outrage of other images that have come out of the protests, it provides an exceptionally good opportunity to consider the acceptability of force by police. At Volokh Conspiracy, Orin Kerr posted a poll as to whether the officer tasing the protester acted “appropriately.” As of this writing, the poll reflects that “no” votes are slightly ahead of yes, with neither mustering a majority. The comments to the post are even more illuminating.
On one end of the spectrum, Musing Jester thought the answer was clear :
Where is the option – Occupiers are not considered to be people and therefore have no right…?
On the other end of the spectrum, self-proclaimed ethical vigilante Jack Marshall similarly thought the answer was clear :
Gee, would you rather they clubbed him? He was interfering with legitimate police work, he was resisting a lawful arrest, he was agitated. It was a good use for a taser if I ever saw one. Why should police officers be put at any risk at all by these defiant jerks?
It was obvious early on that this pointless Occupy nonsense would end in violence, and I only hope the media and the Obama administration pays a high price for encouraging, enabling and trying to legitimize the most juvenile, incoherent and narcissistic protest I’ve ever seen….and I’ve seen a lot. Even been in one or two…
A former prosecutor, Anteus, gave the official response :
As a former prosecutor of police brutality cases, I can say without a shadow of a doubt that this force was justified. Short version: do not resist arrest. Longer version: do not ever resist arrest. You can contest the arrest later. An arrest is not the opening of a discussion. The police are trained to use overwhelming force as a means of minimizing injury. Sort of like shock and awe. Absent overwhelming force, the fight goes on and people get hurt really, really badly.
Still others pondered the police “use of force” policy, suggesting that as long as the cops complied with their own rules, the question was answered.
Curiously, a great many who thought that the police rushed to force, whether for failure to warn, to make any effort to talk the protester off the ledge before seizing him, saw this as a very gray situation. Some saw the protester as drunk or unbalanced, while others had issues largely because of the over-wrought assumption that Tasers are non-lethal.
There seems to be two basic mindsets at work here, the first of which falls along the spectrum of police compliance and the second along the spectrum of whether you are decisively for or against the cause, a point made by commenting lawprof Dan Kahan.
two other options
_______yes, unless he was actually protesting abortion outside an abortion clinic, in which case no
______ no, unless he was actually protesting abortion outside an abortion clinic, in which case yes
As to the latter, there isn’t much to discuss; it’s essentially a matter of rooting for your team, regardless of anything else. As to the former, however, very few of the people inclined to comment gave much thought to the question of why police are allowed to use force at all.
As one person commented, Tasers have become a crutch for police, a quick and easy means of bringing any confrontation to a close consistent with the First Rule of Policing. Rarely causing death, or permanent scarring, and likely to put an end to any resistance before it devolves to the point of a police officer being forced to break a sweat or get a headache from having to think too hard, the Taser has become the go-to tool for compliance enforcement.
But it’s force. It hurts the person tased.
If we removed the Taser from the equation, and instead the officers threw the protester to the ground and punched and/or kicked him, would it be an acceptable use of force?
The protester, after proclaiming that he’s done nothing wrong and without being told otherwise, “resists” by pulling his arms away from the seizing officers. While this is rarely a good idea, given that the cops are never going to back down as a result and, invariably, will escalate the seizure, this is compliance from the cops’ perspective rather than from any sort of rational basis for the use of force. The police won’t allow their quarry to win, regardless of right or wrong, and from a pragmatic point of view, the escalation to violence is inevitable.
Missing from this discussion is any rational concept of whether this is how it should be. The protester was not violent. Granted, he called the police a nasty name, and, according to reports, ripped down their notices. But he affirmatively touched no one, cop or civilian, and there was no indication whatsoever that he would engage in violence but for the police having forcibly seized him. Even then, he pulled away, but did nothing that would suggest an attack against the police or give rise to any fear of harm by an officer.
It seems that we’ve lost all sight of the use of force along the spectrum of options for police confrontations. Few would dispute that the police are entitled to use force to defend themselves or others, but few are concerned that force is used when there’s no threat of violence at all. Once we’ve divorced violence on the part of the protester from the use of force by the police to compel compliance, thereby excusing them from making any effort to de-escalate the situation or, worse still, address the situation without anyone getting hurt, we’ve accepted force by police at will and without any rational basis as justification as a legitimate method of obtaining compliance.
And it seems remarkably untroubling, even to those who voted “no” in Orin’s poll but still see gray when it comes down to it. It may be that the best advice is to comply if you want to avoid getting hurt, but that is practical rather than doctrinal. It used to be that the police couldn’t use force at will. It appears that we’ve not only given up the expectation that cops try to avoid the use of force against non-violent people, but that we’ve come to accept it as a legitimate means of compelling people to submit to their authority.
The fact that someone was hurt doesn’t seem to bother people very much any more when it’s at the hands of police. That’s a serious problem.
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“While the Occupy Movement has failed to provide any clear message of purpose,”
Really? The ignorance of that statement made the rest of the article a little hard to read, my eyes kept going back to that first line… Really?
If you’re willing to dismiss all reference to the financial crisis and the frustration over lack of accountability which has been abundantly referred to (outside of Fox News), then I wonder where else you might apply this lack of perception.
Really. As much as your wonderment deeply distresses me, I will nonetheless march on without your admiration.
I have not seen the conversation over at Volokh, though I imagine I will be depressed when I do. How on earth anyone can think this tasering was justified when the cops already had his arms behind his back. The cop who pulled the taser evidently had intended to tase him all along — she is reaching for the taser as soon as the other two grabbed him. How distressing that the self-styled defenders of “freedom” (the libertarians) are so quick to defend the police state. And how distressing that post-9/11 we as a society have become inured to violence by the state. If Kent State happened today, people would probably say, “Hmph, they should consider themselves lucky they didn’t shoot more.”
I wonder when did “failure to obey a verbal command” in and of itself become an acceptable license to employ violence. It has become so ingrained in everybody. I guess, if Terry stop/search is constitutional, this kind of behavior should necessarily follow. It is kind of ironic that reflexive defenders of police always insist on one hand that they are brave and on the other hand “they fear for their safety” at the drop of the hat.
In any case, non-violent protests need massive crowds to be resistant and effective. Law enforcement is so jumpy these days, I wonder what they will do if they are faced with a million man march.
That’s a great comparison, Kent State. It’s a very real question whether that would have been disturbing today, or people would have yawned and said, “well, they didn’t listen.”
Time to pull out the machine guns. There are just too many of them.
The protester has been quoted in the media around here as saying that he was a bit out of control and should have complied. I get the sense that looking back on it, he thought he should have handled the situation differently.
I don’t think anyone would dispute that. I haven’t heard anyone suggest he was a model of gentility and grace.
Dignity would not have helped. I can not believe that he would not have been tazed if he stood his ground (wearing something more dignified than clown pants, of course), looked the officer in the eye and said, “Officers, please refrain from sullying my self. It is my right and privilege, granted to me by God and man, to be apprised of the charges and offenses alleged against me before I shall succumb to your physical custody in this matter.”
Had he been a wee bit calmer as the officers approached, there’s a chance that they would have spoken with him first rather than seized him. Can’t say for sure, but his demeanor didn’t help. Not that it justifies force in the least, but he wasn’t well-behaved either.
Perhaps I missed it, or you just can’t tell from the video, but I never saw the police give him an order.
I’m pretty sure running away from the police is generally legal.
I never saw the police give him an order either. In fact, I didn’t even hear it. But there is a difference between running away and, having been grabbed by an officer, pulling one’s arm away. The latter is provocative and strikes fear for their safety in the hearts of officers everywhere.
I do not know the local law but it does not appear from the tape that the police gave the person any instructions or orders before they assaulted him. The pivotal moment seems to come at 1:32 in the video where one officer grabs the man from behind. I understand that in some rapidly evolving situations the police cannot talk to people before taking action but in this case they surrounded him and he repeated very clearly that he did not want to interact with them.
It would be hard to call this a Terry stop as he did not look out of place (strange as he was). So if they were arresting him, do they have to tell him “you are under arrest” or at least order him to “stand still and place his arms behind his back”. All I can see on the tape is an officer grabbing a person with no apparent cause. Can any officer come up to me and throw me to the ground without cause or warning under the authority of their badge? Would this be legal?
What happens after is somewhat inevitable based upon the attitude of the police, not the person being tased. The actions of the police make them look like a roving gang of thugs rather than people maintaining order and protecting the public.
As for the appropriateness of the tasering, it seems people are focusing on the exact instant the taser was fire at which point it may be a grayer picture. In my opinion the officers precipitated the entire event. It ended like it did because that is how they went about their business. As long as their standard procedures is to assault first and talk later, then citizens will get tased.
Perhaps officers should attend some sort of Police Academy rather than NFL Kicker Training Camp.
I wonder no longer…
“Can any officer come up to me and throw me to the ground without cause or warning under the authority of their badge?”
Yes. Exactly like how if you’re speeding, a police officer can drive his car up behind you and perform the pit maneuver without ever turning on his lights of otherwise signaling that you need to pull over.
At least you aren’t too narcissistic about it.
I had the sense, by the way they walked past so many other people, that they may have been looking for him in particular. And not just for wearing those pajamas in public.
My gut says that the story is incomplete, and that there may have been a precursor of some type.
The precursor, as far as the backstory goes, was that he was ripping down notice to vacate, so they were looking for him in particular, but it’s neither sufficiently interesting nor criminal to change the situation much.
Then again, you civil guys always try to find a way to explain the cops.
I think this video distracts from real videos of actual police abuse.
Still, I am glad ppl are posting about it. It is interesting to see that this video splits people.
I think it is the “wrong hill to die on” as far as arguing that the police be punished for what they did in this particular vid.
Back in the day, even Operation Rescue taught that you either co-operate with the police, or, at the very outside go spread eagle, face down and limp when the time comes.
Different videos serve different purposes. Not every one is intended to push a particular issue.
I think it is precisely the right “hill to die on” — the video is a clear example of the evident policy of the police to use extreme force in the first instance, rather than using their professional judgment as to whether a situation requires the use of extreme force. (Of course, any episode of “Cops” illustrates the same.) This is the kind of policy we expect in countries with little or no rule of law — to wit, the Egyptian police in Tahir Square. The advent of the ease of video recording incidents like these shows how much closer we are to Tahir than Mayberry.
I wasn’t alive in the 70s so I’m asking this as a child on the knee. Did some people have a view at the time that the survivors of Kent State actually were lucky that the National Guard didn’t shoot more people? It’s gone down in history as a massacre but was that unanimous when it happened?
I absolutely agree that someone would tweet that within a couple of minutes of it happening today but is that just because we have Twitter now and other people can see it? I think “distressing” really is the word.
The idea of the national guard shooting and killing protestors went beyond anything anyone could imagine. There were plenty of protests, buildings seized, property destroyed, but we didn’t kill our own, until then. Even those who thought the kids were horrible and wrong were shocked that at the killings. We just didn’t kill our own children, no matter how badly they misbehaved.