We The State, Not We The People
Out Of Date Warning
Languages change. Perspectives are different. Ideas move on. This article was published on November 21, 2011 which is more than two years ago. It may be out of date. You should verify that technical information in this article is still current before relying upon it for your own purposes.
By now, most if not all of us have seen the graphic images from UC Davis, where students were pepper sprayed at point blank range by two officers of the campus police force. These images have become more and more commonplace in our society, which is quite sad. The news seems more and more consistently filled with stories of police actions that cross the boundaries of what we might consider acceptable, and the reality is that technology has made it easier to catch these officers “in the act.” But what is terribly heinous is not the actions themselves (though they are); it is the systematic setting of internal policies that allow these activities to take place – and often, go unpunished.
A few months ago, I had the privilege of serving on a jury. The case was simple: a single misdemeanor charge of disorderly conduct. The facts were equally simple: the defendant, after walking out of a bar, was struck by another man who had just left a different bar. Bouncers from the second bar immediately forced the assailant into the parking lot, and made sure that the defendant was alright. After a few minutes, he proceeded to the parking lot to get his car; the assailant again assaulted him. The defendant this time defended himself; he easily overpowered the assailant and by the time the police arrived, had the altercation well in hand.
This is where the story gets bizarre. The officer, arriving on scene and observing the defendant on top of the assailant, orders the defendant off and then immediately uses his Taser to stun the defendant. Dazed, the defendant asks the officer why he’s “been shot”, while the officer yells at him to get on the ground and actually uses the Taser a second time. The defendant is arrested, booked, and charged with a misdemeanor charge of affray. During his first trial, the judge doesn’t buy the affray charge, but convicts him of disorderly conduct. He appeals, which is how we (the jury) get involved.
As a jury, we decided that in the midst of a heated fight, it’s entirely plausible that he never heard the officer’s instructions. In fact, it’s entirely possible the officer never gave the defendant an opportunity to stop; you see one man beating another and you don’t wait patiently for him to respond to your demands. Certainly the officer took an action that was immediately and likely appropriate. And arresting the defendant was also probably appropriate; he had to be detained and questioned about what was going on.
But charging the defendant with a crime was unconscionable to us. Did the defendant not have a right to self defense? Of course he does; the law affords him that right. But Montgomery County police apparently have a policy of charging any person against which they use force as a means of ensuring that they are protected from liability in unlawful or unnecessary force cases. This is what the judge who presided over the jury trial told us, the jury, after we returned our verdict. This policy is designed to ensure that anyone who sues the police for excessive force is under a cloud of legal suspicion, because they were charged with a crime in connection with the force. It automatically discredits them.
This highlights the fact that we have experienced a complete and fundamental shift in the role of the police and the adversarial judicial system. Decades ago, the police and prosecutors protected citizens from those in society who would be a hazard to everyone. But slowly, citizens were changed into subjects. And the organization the police and prosecutors were sworn to protect was no longer society, but the government itself. Especially from people and activities the government doesn’t like.
The costs are extraordinarily high for this kind of system. Take for example my defendant. He was arrested, booked, cited and released. His case was turned over and an attorney was asked to review it and then prepare it for trial. A judge was required to hear the case, and he was required to retain an attorney to defend him. He lost, but appealed requesting a jury trial (because jury trials in Maryland for misdemeanors are not automatic, but only come after you’ve been convicted by a judge). Another prosecutor was required to prepare; witnesses had to take the day off; the officers had to be paid for their time to testify. The defendant had to pay his attorney and attend another trial, six months after the date of the incident. Forty five people took the day off and were called in and questioned during voir dire. Twelve people had to hear the case. All of this, just to immunize the police against a lawsuit.
This defendant was lucky enough to have a trial by jury – a right still guaranteed to most defendants under the Constitution. That’s not to say that there aren’t efforts underway to undermine this right: the decision to try “enemy combatants” before military tribunals is one of the ways. The right to a trial by jury is fundamental in a system that says “a crime is against all people; therefore let the people decide.” But when the crime isn’t against the people anymore, having the people sit in judgement becomes far less important.
Which brings us back to the UC Davis incident. The police claim they were surrounded by students and lacked a route of escape. I refuse to comment on whether or not that is true; I wasn’t there, I don’t know the logistics of what actually happened. What I do know is that a dozen students received a dose of pepper spray at close range that made many of them sick (11 were treated by medical personnel). I know that many of the students involved were arrested. I know that cooler heads did not prevail, particularly in the police force. And I know that while the students who were sprayed and arrested will be dealing with the consequences of their injuries and arrests for months if not years, the police involved are unlikely to be fired, charged, or disciplined in any way.
Police are an integral part of society. It’s their job to arrest people who commit crimes, to protect people who are innocent, and to deal with difficult and stressful situations. Many police officers are hard-working and honest. It’s even possible that the officer who applied the pepper spray at UC Davis is a good, hard-working honest man who truly believes that he was doing the right thing. I doubt he goes home at night and fantasizes about pepper spraying children and small animals. Yet the act he undertook is indicative of the fact that we’ve lost our way; we’ve lost the common sense that used to be part of policing, that would say “talk to these people, work out a solution.” Instead, their decision was to exercise the state’s prerogative, to end the discourse and to show that they had the better weaponry. And society is worse off for it.
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