The Legal Protection Of Armed And Deadly Assault By The Police

There are, supposedly, many legal protections to guard a citizen’s interaction with law-enforcement agencies and their officers: you may not be detained without cause (‘Am I under arrest?’ ‘Am I?’ ‘If I’m not, may I go?’); you and your personal spaces and possessions may not be searched without cause (‘Do you have a warrant?’); you may not be coerced into making confessions or incriminatory statements (‘I’m not talking.’); you have the right to an attorney (‘I want to see a lawyer’); heck, you even have the right not to be assaulted or shot dead during the course of an interaction with a police officer.

So say the books. Courts sing a slightly different tune. There, all manner of exceptions may be found: law enforcement officers may detain, search, and question you in ways deviating from the prescribed code and conduct of behavior if they were ‘acting in good faith’; they may suspend their reading of your rights if they were acting under similar motivations and had reason to suspect some law-enforcement imperative could be compromised otherwise; and of course, in the course of performing their duties and protecting their own lives, they may use deadly force in interactions with citizens in many different ways.

The Fourth Amendment’s protections of US citizens are effectively eviscerated by the legal standards used to evaluate police behavior in seizure, search, and armed response scenarios:

The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but whether the seizure (in this case, the shooting) was objectively reasonable to someone standing in the officer’s shoes—and it was.

Excerpt from Smith v. Freland
“Under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”
—excerpted from Smith v. Freland, 954 F2d 343, 347 (6th Cir. 1992)

And so, it must come to pass. Police officers can shoot and kill a twelve-year old boy playing with a toy gun in a children’s playground, two seconds after their arrival, because in their judgement of what constituted ‘reasonable action,’ it was reasonable to shoot and kill such a boy. Such a standard has been in place with us ever since the Supreme Court ruled in Graham v. Connor ruling that “cops can shoot you dead as long as their sense of self-preservation is “reasonable” in the face of your perceived dangerousness.”

The gap such rulings and interpretations have opened have resulted in a chasm, a gaping maw into which we feed, without ceasing, the bodies of innocent citizens–mostly black and brown men–year and year. The feverish fears of policemen are the only regulators of their trigger fingers.

A policeman feels unsafe; he fires. His safety has been addressed; what about ours?

Is “Black Lives Matter” Aiding And Abetting Criminals?

This is a very serious question and deserves a serious answer. It is so serious that the New York Times has asked: Is “police reticence in the face of such protests, some led by groups like Black Lives Matter causing crime to rise in some cities”? The first answers are in. Those honorable folk, “the heads of the F.B.I. and the Drug Enforcement Administration said they believed that this so-called Ferguson Effect seemed to be real.” (The Ferguson Effect, which sounds like an atmospheric condition that produces high winds and heavy rain, is capable of creating law and order crises.)

In general, whenever black folk get uppity, crime increases. See, for instance, the wave of crime that spread through the American Deep South after the Civil War during the Reconstruction Era when freed slaves went on a rampage, killing, raping, and looting. Some folks blame that on white racists worried about the imbalance in the old power equations of the American South, but we should remind ourselves that the folks conducting those terrorist campaigns were riding around on horses while wearing white robes and hoods, so we will never, I mean never, know whether they were white or not.

We need not debate this question for too long. The FBI and the DEA–fine, upstanding defenders of civil liberties, and really, the first folks we should check in with when it’s time to evaluate political protest conducted by minorities–would never speak falsely on such matters. Besides, they have better things to do–like entrapping young Muslims in terrorist plots, arresting folks smoking that dangerous chemical, marijuana, and listening to the phone conversations, and reading the emails of, American citizens. (Some pedant will say I should be talking about the NSA but in this post 9/11 intelligence-sharing era, what’s the difference?)

We should be curious though about what such “police reticence” amounts to. Perhaps it means the following. Police officers will not be able to: fire sixteen bullets–known as ’emptying a clip’, I’m told–at black teenagers walking on a highway even ones with knives; come scrambling out of a car and begin firing, assaulting-a-Pacific-Beach style, at a twelve-year old playing with a toy gun in a children’s playground; shoot black men in wheelchairs; drive around a city with a ‘suspect’ in a paddy wagon, and then beat him to death; place sellers of illicit cigarettes in fatal strangleholds; shoot black men in the back, whether during an undercover drug sting or after a traffic stop; shoot black men who have knocked on doors seeking help; search, randomly and roughly, hundreds and thousands of young black men and women in their neighborhoods for looking suspicious.

The ultimate ramifications of such handicapping of our armed forces–sorry, police–are as yet, only poorly understood, but the contours of the resultant landscape are perhaps visible. Black folks will once again walk the streets; they will stay out late at night; they will go into white neighborhoods and mingle with the populace there. Of all the chilling effects of this new police caution, the last one, surely, is the most chilling. Black folks will be set free among us. The horror.

NYPD: In New York, Protests Are A Terror Threat

There truly can be no police department more tone-deaf, more insensitive, more colossally, thickly stupid and offensive than the New York Police Department. Consider, for instance, its latest announcement, that of the formation of a special anti-terror unit:

A brand new unit of 350 NYPD officers will roam the city with riot gear and machine guns, trained specifically to respond to terrorist threats and public demonstrations, Police Commissioner Bill Bratton announced….

“[The unit] is designed to deal with events like our recent protests or incidents like Mumbai, or what just happened in Paris,” Bratton said Thursday. “It will be equipped and trained in ways that our normal patrol officers are not.”

He added that the unit would be suited up with, “extra heavy protective gear, with the long rifles and the machine guns that are unfortunately sometimes necessary in these instances.”

You got that? The ‘recent protests’ –i.e., those protesting the choking to death of an asthmatic man by a NYPD officer, the shooting of a teenager in Ferguson or a twelve-year old in Cleveland, are just like the killings of innocent people in Mumbai and Paris. That is, citizens exercising their First Amendment rights by marching on the streets, raising slogans, and blocking traffic, are a terror threat just like those who throw hand grenades and gun down men, women, and children.

The announcement of this special anti-terror unit has, I’m sure, has sent the more trigger-happy members of Bratton’s corps into quivers of firearm-induced  tumescence. But before those lads get a little too giddy in anticipation of watching and listening to things that go ‘boom’, and enjoying the spectacle of their targets flopping to the ground in convulsions of pain and agony, I have some questions to ask.

What does Bratton imagine his ‘special terror unit’ doing when a protest gets a little loud, when the slogans of protesters hit a little too close too home, when their die-ins go on a little too long, when their chants of ‘Hands Up, Don’t Shoot’ or ‘I Can’t Breathe’ get a little too aggravating? Will the officers in charge set up special machine-gun nests, arrange their ammunition belts in neat little stacks, and then open fire, making sure they distribute their payloads evenly and accurately so that the thousands of bullets they emit find their targets unerringly? Will they wait till they see the ‘whites of their eyes’? Will they keep firing till the barrels of their machine-guns overheat, or will they stop occasionally to let them cool off? Will they rely on snipers–like the kind glorified recently by Hollywood–to blow out the brains of those who have somehow survived the initial barrage of fire? Will we have to rename Union Square ‘the killing field’?

If Bratton could put down his video game controller and his armament requisition forms for a bit and address these questions, I, and many other citizens of this city, would be most grateful.

Nick Kristof Should Stick To High Profile Rescues

Nick Kristof writes on his Twitter feed:

Activists perhaps should have focused less on Michael Brown, more on shooting of 12-yr-old Tamir Rice in Cleveland

This is the kind of sensible, pragmatic advice that journalists like Kristof, safely ensconced in their opinion pages, are in the habit of handing out to unhinged radicals everywhere: pick your battles, choose wisely, activist resources and public attention are scarce, and on and on. (My guess is that Kristof also finds the activists’ rhetoric ‘incendiary and counterproductive.’)

Except that this advice is vacuous and misguided, and shows a severe lack of political nous.

The reason Kristof offers this second-guessing of activist strategies is because he has internalized some irrelevancies pertaining to the Michael Brown case. To wit: Brown was a ‘hulking young man’, a shoplifter who smoked marijuana and scuffled with a policeman. None of these factors remotely mitigates his shooting in cold-blood by a police officer whose actions that day and afterward suggest if not outright racism, then at least spectacular incompetence. Furthermore, the Michael Brown protests might have started out as protesting a young man’s senseless death, but they very quickly turned into a much larger statement against police brutality. It would have been politically dumb of those who resist police brutality and heavy-handedness to not make a visible statement against the excessive, ongoing militarization of the police that was visible, day after day, night after night, on Ferguson’s streets. And then later, after the grand jury’s scandalous acquittal of Darren Wilson, after a process that has now been shown to be irredeemably flawed and corrupt, protests broke out again, which had the salutary effect of highlighting the almost unconditional protection that police enjoy from prosecutors everywhere.

Michael Brown was shot on 9 August 2014; Tamir Rice was shot on 22 November 2014; the grand jury acquitted Wilson on 24 November. What does Kristof think the activists should have done between August and November? Waited for someone really, really innocent to be shot? A younger man, a slighter man, a man who didn’t smoke weed? Should they have canceled all protests against the grand jury decision, saying “Sorry, we got a a much better case to concentrate on”? Sauve qui peut, I suppose.

The most offensive implicit statement in Kristof’s tweet is that somehow Tamir Rice was ‘more innocent’ than Brown, that his death was ‘more tragic,’ and deserved more attention from activists and protesters. This is morally obtuse. The deaths of both young men were tragedies and they deserve equal attention precisely because the same system–the same deadly combination of systemic racism and an over-armed, trigger-happy, incompetent policeman–killed them.

Journalists like Kristof continue to write weak pablum on this nation’s most prominent editorial pages and persist in offering inane, offensive advice to those engaged in struggles whose dimensions they remain blithely unaware of. They insist that political protests–about issues which are far removed from their lives and experiences–conform to their notions and expectations in form and content and target.

What a waste of a soapbox.

PS: Do read the linked article Kristof provides; it details the criminal negligence that led to Rice’s death.