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Friday, July 24, 2009


by digby

I have been reluctant to really delve into the Gates story because well ... it just seems so obvious. And it's clear that it's just taking the wingnut bait. But since I write often about police abuse of power, particularly with tasers, some readers seem to be interested in a larger discussion of this incident so here goes.

First, I think that there is obviously a racial component here, but I don't see it as classic "profiling" at least in the traditional sense that someone is targeted for a police stop solely because of their race. The circumstance as I understand them are that the police responded to a call of a possible burglary with two black suspects. The idea that they wouldn't have responded to that call if the description had been two white suspects is not believable. It's what happened after that fits the racial narrative.

One racial component is the reflexive angry defensiveness that white people often feel at being called racist when they don't believe (rightly or wrongly) that they are. This cop, a man who we are told teaches other cops how to avoid racial profiling, may have felt he was being unfairly targeted as a racist and he got angry. The "angry black man" syndrome, whereby blacks' sensibilities in such situations are discounted as being a "chip on the shoulder" or somehow a function of an inherently angry temperament adds to the mix. Black people are assumed to be "dangerous" in situations where whites get the benefit of the doubt. I really don't think that's debatable.

Having said that, to me, this situation actually has far broader implications about all citizens' relationship to the police and the way we are expected to respond to authority, regardless of race. I've watched too many taser videos over the past few years featuring people of all races and both genders being put to the ground screaming in pain, not because they were dangerous or threatening and not because they were so out of control there was no other way to deal with them, but because they were arguing with police and the officer perceived a lack of respect for the badge.

I have discovered that my hackles automatically going up at such authoritarian behavior is not necessarily the common reaction among my fellow Americans, not even my fellow liberals. The arguments are usually something along the lines of "that guy was an idiot to argue with the cops, he should know better," which is very similar to what many are saying about Gates. He has even been criticized for being a "bad role model," thus putting young black kids at risk if they do the same things.

Now, on a practical, day to day level, it's hard to argue that being argumentative with a cop is a dangerous thing. They have guns. They can arrest you and can cost you your freedom if they want to do it badly enough. They can often get away with doing violence on you and suffer no consequences. You are taking a risk if you provoke someone with that kind of power, no doubt about it.

Indeed, it is very little different than exercising your right of free speech to tell a gang of armed thugs to go fuck themselves. It's legal, but it's not very smart. But that's the problem isn't it? We shouldn't have to make the same calculations about how to behave with police as we would with armed criminals. The police are supposed to be the good guys who follow the rules and the law and don't expect innocent citizens to bow to their brute power the same way that a street gang would do. The police are not supposed wield what is essentially brute force on the entire population.

And yet, that's what we are told we are supposed to accept. Not only can they arrest us merely for being argumentative as they did with Gates, they are now allowed to shoot us full of electricity to make us comply with their demands to submit.

There is a philosophical underpinning to all this that I am only beginning to fully understand. It was discussed in this very interesting guest post over at Crooked Timber by a police officer and philosopher who went through the various elements of the case and offered his perspective. Much of what he wrote was very thought provoking and made me think a bit about my reflexive recoil against police behaviors in so many of these situations. But some of what he wrote reinforced my belief that something has gone wrong:

The judgments of policing are obviously difficult and subjective, and are often marred when they are made in the face of people issuing inflammatory comments even as the police are rendering routine services with an obvious cause. It is in the collective interest of citizens and police to promote an environment where the police can conduct an investigation calmly and with mutual respect. It cannot become commonplace for people to be allowed to scream at the police in public, threatening them with political phone calls, deriding their abilities, etc. Routine acts like rendering aid to lost children, taking accident reports and issuing traffic violations could be derailed at any time by any person who has a perceived grievance with the police. The police service environment is not the best venue for the airing of such grievances.

This is a form of blackmail similar to the CIA threatening to let terrorists kill us if they are held accountable for lawbreaking. It says that the police will not be willing to rescue lost children if they have to put up with yelling citizens. That is an abdication of their duties and the idea that they should then be given carte blanche to shut up all citizens by means of arrest, because it creates a social environment where someone might cause a distraction in the future, is Orwellian double talk.

And it makes a mockery of the first amendment. If police are to be shielded from public criticism when they are acting in their official capacity then we have an authoritarian state. If yelling at the authorities is a crime then we do not have free speech.

He goes on:

The police should not be cowed by threats of phone calls to people such as mayors, police chiefs and presidents of the United States, along with allegations that “you don’t know who you’re messing with.” It is traditionally whites who have had this type of crooked access and influence. These appeals to higher authorities are often meant to exempt the ruling castes from following the rules and laws that the rest of the community will be expected to follow. It happens, it is unfortunate, and it is not in the interests of justice for it to continue. Nobody trying to do their job fairly deserves to hear the equivalent of “My daddy donated fifty million to this university, and you’ll be getting calls from everywhere in the administration about raising my grade enough for this class to count as a distributive requirement.”

It is very rude of citizens to do that, to be sure. But it is not a crime. The idea that people should not get angry, should not pull rank, should be rude to others is an issue for sociologists and Miss Manners, not the cops. Humans often behave badly, but that doesn't make it illegal. For people with such tremendous power as police officers to be coddled into thinking that these are behaviors that allow them to arrest people (or worse) seems to be to far more dangerous than allowing a foolish person or two to set a bad example in the public square.

He continues:

It is possible for a person to commit disorderly conduct by unabated screaming and verbal abuse in a public setting. Without drawing conclusions about the Gates case, there comes some point where a person is genuinely causing public alarm, and where he is acting with a rage that exceeds what we can expect from a reasonable person in a heated moment. The mere presence of the police conducting a legitimate investigation should not provoke continuous rage and epithets from such a person. One response is that the police should just leave if the investigation has been conducted successfully, and that this will calm the person down. In practice, this is indeed often the best thing to do. On the other hand, it should be noted that it is just as much the responsibility of the citizen to see that his actions are an inappropriate way to relate to police officers who have not, in the specific case at hand, acted unreasonably. This point may be hotly contested, but I believe it is true: there is no obligation for the police to hurry in their activities or to leave as soon as possible because they have incited the rage of a person who is acting unreasonably. There is a distinction between hanging around to show them who’s boss and working at a steady, professional pace, to be sure. But in the end the mere presence of the police cannot be seen as an acceptable reason for disorderly conduct, and should therefore not spur the police to leave a scene simply to de-escalate it. A police strategy of “winning by appearing to lose” emboldens citizens to attempt to get the police to lose in more and more serious matters, including walking away from situations where a person is genuinely guilty of a crime.

At this point we are seeing a tipping in the other direction. Police are emboldened when they repeatedly get away with using bullying, abusive tactics against average citizens who have not been convicted of any crimes. This is the kind of thing that results:

Police say they struggled to get inside the home to speak with the man. When police managed to get inside the home, the suspect was placed in handcuffs. The complainant alleged that he was Tased three times by police - once to his wrist, the second to the small of his back and the third to his buttocks.

The ombudsman's report states that the suspect was tased only two times after an investigation. One of those tases, however, was in the buttocks.

The use of force "was after he was handcuffed," said Ombudsman Pierce Murphy. "And it was in the most senstive, private areas, and accompanied by threats."

The suspect can be heard pleading to the police several times that he couldn't breathe when officers were on top of him.

"I can't breathe - just let me up, I want to breathe," he says.

The officer quickly replied, "If you're talking - you're breathing."

The report also states that the officers used excessive language.

"If you move again, I'm going to stick this Taser up your (expletive) and pull the trigger," the complaint said. "Now, do you feel this in your (expletive)? - I'm going to tase your (expletive) if you move again."

It was determined that the cop had the taser literally pushed up against the man's anus.

In an earlier portion of his essay on Crooked Timber, the officer talked about how we need to allow police to have discretion and explained that it works as often as not in the favor of the suspect as a matter of common sense. (Police often let people go with a warning, for instance, rather than adhere strictly to the letter of the law.) And that's reasonable.

But when it comes to race we've got a terrible history of discretion not being extended in favor of blacks --- and the increased use of tasers is turning this concept of discretion into a license to torture. A policeman using his discretion to arrest a man in his own home because he was not deferential enough is just one more incident along a long road of creeping authoritarianism.

I said the other night that I thought Gates was lucky he didn't get tased and I really think he was. People all over this country are "subdued" by means of electricity every day, probably more blacks than whites, but it doesn't seem to be particularly limited to race. We are accepting this kind of thing as if it's just an inevitability because of the attitudes this police officer very thoughtfully lays out in his essay: we are told that we must defer to authority or risk all hell breaking loose.

And I would suggest that it is just that attitude that led to people in this country recently endorsing unilateral illegal invasions, torture of prisoners and the rest. You remember the line --- "the constitution isn't a suicide pact." To which many of us replied with the old Benjamin Franklin quote: "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

The principles here are the same. Sure, we should treat the cops with respect and society shouldn't encourage people to be reflexively hostile to police. They have a tough job, and we should all be properly respectful of people who are doing a dangerous and necessary job for the community. But when a citizen doesn't behave well, if not illegally, as will happen in a free society, it is incumbent upon the police, the ones with the tasers and the handcuffs and the guns, to exercise discretion wisely and professionally. And when they don't, we shouldn't make excuses for them. It's far more corrosive to society to allow authority figures to abuse their power than the other way around.

Henry Louis Gates may have acted like a jackass in his house that day. But Sergeant Crowley arresting him for being "tumultuous" was an abuse of his discretion, a fact which is backed up by the fact that the District Attorney used his discretion to decline to prosecute. Racially motivated or not he behaved "stupidly" and the president was right to say so.

* And by the way, if anyone wants to see some real incoherence on this subject, consult the right wingers who are defending the policeman today, but who also believe that anyone has the right to shoot first and ask questions later if they "feel" threatened in their own home. By their lights, Gates should have been arrested for behaving "tumultuously" but would have been within his rights to shoot Sgt Crowley. This is why conservatives have no standing to discuss anything more complicated than Sarah Palin's wardrobe.