The Solution of Firing James Frascatore

Fire James Frascatore?  The New York Times says so. Ken Womble says so. It’s not just for his needlessly forceful takedown of James Blake. His resort to force was well established before it hit the front page, though few knew or cared until they saw it for themselves. Some still refuse to see a problem.

Fire James Frascatore?  The Times says that Police Commissioner Bill Bratton and his sidekick, Mayor de Blasio, need to “make an example of him,” which is another way of saying they should send a message.  But communication isn’t so simple. The message transmitted isn’t necessarily the message received.

To the rank and file police officer, Frascatore will be a scapegoat, and his firing will be taken as a lack of support for their self-perceived risk in doing a job that the City wants done, but lacks the courage to admit.  While the numbers fail to support a “war on cops,” the war they perceive isn’t just a body count, but a lack of respect and appreciation. They believe it’s their due.

Forget the “respect is earned” retort, because they believe they have earned it, as they talk amongst themselves and recount their bravery and efforts. They’re absolutely certain that if only the public could appreciate how the cops protect them from the criminals, they would buy a cop lunch every day.  To a cop, it’s the public that’s blind, that’s biased, and can’t see what they do to save them.

Fire James Frascatore?  After Daniel Pantaleo killed Eric Garner, Bratton promised to retrain cops to exercise greater restraint.  Retraining is the ordinary response to soothe the public’s fears, but it never seems to change anything. Of course, that’s because the public remains blissfully unaware of the indoctrination to the job that comprises the mindset beneath any effort to retrain. They must take charge. They must be in command. Their life depends on it. Your life depends on it.  There is no room for hesitation, empathy, second-guessing. The cop who hesitates is a dead cop. A dead cop helps no one.

Fire James Frascatore?  There are mechanisms in place which, officials explain, exist to protect us from that one bad apple.  Like the Civilian Complaint Review Board, with the power to investigate and “substantiate” complaints, and then send a piece of paper to 1 Police Plaza. The CCRB had paper on Frascatore. Frascatore survived.

Fire James Frascatore?  The Police Benevolent Association, by its glib president, Pat Lynch, will go to the mats for this officer.  The New York Times asks:

What will it take for the union boss Patrick Lynch to stop reflexively defending excessive force and admit that Officer Frascatore and Daniel Pantaleo, the officer who led the group tackle that smothered the life out of Mr. Garner, reflect a larger problem?

Why would anyone think the union’s interest aligns with the public’s?  Why would anyone think it should? It’s the police union. It exists to promote the interests of its members, and its members want their union to protect and defend them at all costs.  That’s its job.

Some might argue that the long term interests of the union rank and file would be furthered by ridding its ranks of bad cops, officers who resort to force unnecessarily, and thereby undermine public confidence and support for the police.  And, indeed, it’s a fair argument. Except the union members fear the sacrificial lamb, knowing that it could be them at any moment.  They demand that Lynch let no cop go undefended, and Lynch is good at his job. He wants to keep his job. Lynch has a very good job.

New Yorkers deserve policing carried out with “Courtesy, professionalism, respect,” painted on the sides of patrol cars. Officers Frascatore and Pantaleo make those words a farce.

Fire James Frascatore?  Will that change the marketing slogan applied, at taxpayer expense, to cruisers that speed police officers to wherever they’re needed, whether the scene or a crime or the donut shop?  Will a police force without Frascatore, without Pantaleo, be courteous and respectful?

Of course Bratton should fire James Frascatore. He’s a bad cop.  And all the other cops who can’t restrain their violent urges, their anger and hatred of the people, their compulsion to bully the public because of the bravery of having a gun strapped to their hip.  But that’s just one cop.  How many more James Frascatores are getting NYPD paychecks? Ten? One hundred?  Thirty thousand?

One line in the Times’ editorial, referring to Bratton’s beloved broken windows approach to policing, stands out:

But “quality of life” should also mean the freedom to stand on the sidewalk without worrying that a plainclothes officer will attack you.

Whose “quality of life” do cops think they’re protecting?  They envision some amorphous happy public, the good folks whom they meet at backyard barbecues on their days off, the parents of their kids’ friends from school, their aunts and cousins.

But it’s a lie they tell themselves to support their belief system that they do their job to save us.  Sure, these are people whose quality of life they’re supposed to protect.  But so too the young black man on 125th Street. So too the Hispanic guy in the old Toyota with a ridiculous spoiler.  So too the mother trying to protect her child’s bicycle from seizure, knowing that if the cops take it away her child will have no bike to ride.

The cops are protecting lives, of course. Their own. Firing James Frascatore? Yes, of course fire James Frascatore, but do not for a moment believe that it’s going to accomplish anything more than one less violent cop who lacks the discretion to do his job without harming the people he tells himself he’s protecting.  And once he’s fired, the message sent to other cops is that we, the public, just don’t get it. We don’t deserve their devotion to our quality of life.

21 thoughts on “The Solution of Firing James Frascatore

  1. Peter Orlowicz

    Accountability has to start *somewhere*. Sure, firing one bad cop with poor impulse control and bad judgment won’t fix the systemic problem of training and police warfare mentality. One isolated firing may indeed send the wrong message, and more cops will turn their backs on Mayor de Blasio at the next gathering. If we don’t weed out problem individuals when we do identify them, though, there’s no way to gather momentum for larger cultural changes later. That’s the hard part, is sustaining progress toward the cultural change.

    One less Officer Frascatore now is one less Sergeant Frascatore, or Captain Frascatore, or Deputy Chief Frascatore later. Instead, maybe the department ends up with a sergeant more in the mold of Steve Anderson in Nashville or the late Joseph McNamara. Maybe the next crop of new cops includes a few more young idealists who take their responsibilities to the public seriously, and who resist indoctrination into the negative aspects of police culture long enough to have an impact from the inside. Maybe the next Adrian Schoolcraft doesn’t get pushed out (or involuntarily committed, for that matter.) A journey of a thousand miles starts with a single step, and so forth.

    1. SHG Post author

      “Assault” is a legal word, a crime under New York law. Like all crimes, it’s defined by statute. The lowest level assault under New York Penal Law is Assault in the Third Degree, P.L. 120.00:

      A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor.

      Frascatore did not intend to cause harm, but to seize the person of James Blake in order to arrest him, so it fails on the mens rea requirement. It also fails on “physical injury,” defined in Section 10(9) of the Penal Law:

      9. “Physical injury” means impairment of physical condition or substantial pain.

      Blake suffered a scrape. It does not rise to the level of impairment or pain to constitute physical injury. So while Frascatore did wrong, he did not commit a crime.

      It’s a no-brainer.

      Is it?

      1. Ted H.

        You could make a case for recklessness under the statute i.e, he should have known that his seizure of Blake could have caused harm if it indeed caused ‘physical injury.’

        1. SHG Post author

          No, you can’t. Aside from there not being physical injury, the statute requires specific intent. That doesn’t mean “intent, or any other culpable mental state you feel like tossing in.” Reckless is a different mens rea. You can’t “make a case” for something that isn’t an element of the offense.

          1. Ted H.

            Perhaps I misread the statute. I thought the ‘or’ between the numeration in the statute outlined lower levels of mens rea, along with differing actus reus, requirements that might also be sufficient for a 3rd degree assault charge.

            1. SHG Post author

              Nope, you were right about “reckless” being in there, and I was wrong. I was looking at sub 1, and you were absolutely right under sub 2. He still wouldn’t be reckless, as it was an intentional act, but it is definitely in there.

            2. Ted H.

              I don’t mean to belabor you, but I’d think that while the seizure was an intentional act, one is deemed criminally reckless when they intentionally ‘do something,’ but do so without regard, and in spite of, their reasonable knowledge of the risk to the safety of another or others. Here, the officer’s purpose likely wasn’t to cause ‘physical injury.’ However, the use of an ambush take-down, like many instances of borderline excessive force, foreseeably could cause injury. But like you said, there likely was no ‘physical injury’ here, and there is little practicality in charging a cop acting in the line of duty with such a small crime.

            3. SHG Post author

              I see your point, though when the product of the putative reckless act was itself the intentional act, I don’t see how it can be reckless. Frascatore charged Blake for the purpose of physically taking him down. His intentional act, the physical take down, can’t cause reckless harm, as it’s purpose was a physical take down. To the extent any harm followed, it was his intention to cause it in the course of the take down.

              Anyway, it would still fail the physical injury element, so there is no crime.

            4. Sgt. Schultz

              Not that Ted seemed to notice, but I did. For all those assholes whining that you never admit you’re wrong, you just did, without equivocation or making a big deal of it.

              This is why it pisses me off when you stand your ground (and almost always rightly) and they complain that you never admit your wrong. You do. It’s why I have always trusted your word. You just don’t cave in to make some douchebag stop whining.

            5. SHG Post author

              When I’m wrong, I’m wrong. When I don’t think I’m wrong (and when I think the comment is idiotic), no reason to do anything else.

            6. Ted H.

              I noticed Sgt. I just didn’t think it required any recognition, because there was a more interesting point to be discussed 🙂

      2. Tom Wyleth

        Police apologists will always apologize for police. Sort of a catch 22.
        Sort of Omerta, too.
        No coincidence that a lot of these cops being protected are Italian-American also.
        Mafia-style silence.

        1. SHG Post author

          Yes, us criminal defense lawyers kinda know stuff about police apologists, but thanks for restating the obvious. That said, your bringing Italian-Americans into this is asinine. Take your prejudice elsewhere.

  2. Osama bin Pimpin

    I always go back to one simple solution to police brutality: outlaw police unions. They cannot be reformed, they are not part of the problem, they are the problem. Federal law bans military unions for the same reason: bad things happen when all the guys who have the legal right to shoot guns at people get together and start organizing and lobbying for their own ends.

    This is why I think no prominent Democratic leader will ever solve this problem.

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