November 21, 2011
Law Enforcement Department
Time For a National Conversation on Law Enforcement
I haven't had much to say about the Occupy Wall Street protests, mostly because I don't understand the Occupy Wall Street protests. I think that's because the protesters don't understand them either. That's okay, because building a consensus is a process. and it takes time. There's nothing wrong with that. Here at Windypundit however, I like to talk about ideas and policies, and I can't discuss what I can't understand.
Which brings me to this, which I understand all too well:
That's UC Davis police Lt. John Pike pepper spraying some students who are just sitting on peacefully on the public sidewalk at their school.
Some people have tried to explain this by pointing out that the protesters were blocking the sidewalk and had to be removed, but that doesn't justify using pepper spray. Police have been arresting peaceful protesters forever, and the way to do it is for 2 to 4 police officers to approach each protester, pick him up, and carry him off to the wagon for transport.
What officer Pike did is a chemical variation on what is sometime euphemistically called "pain compliance," which means hurting people until they do what you want. When used to control a violently resisting offender, it's a legitimate escalation step in a police use-of-force policy. When used against non-violent people sitting on the ground, it makes you look like a dickhead.
I wouldn't normally have written anything about this incident because, well, nobody out there seems to care. I don't mean you, my faithful readers, I know you care. But somehow the news media and the American public don't seem to mind that our police forces are routinely doing things that make them indistinguishable from violent street gangs.
Oddly, I was moved to write by, of all people, Brian Tannebaum, who actually took a break from his usual rants about legal marketing to write an impassioned call for a national conversation on law enforcement. That Brian would sound impassioned about anything as nebulous as a "national conversation" is a sign that his cynicism has been shaken.
It's almost a daily exercise, watching video of law enforcement conduct that raises eyebrows. The responses are always the same: 1) The video doesn't tell the entire story, 2) We don't understand the "adrenaline" that causes police officers to beat the living crap out of suspects after they are securely in custody, and 3) So what, the guy's a criminal anyway.
We as criminal defense lawyers, civil libertarians, and yes, even some prosecutors and judges, watch these videos and know that there is a large segment of the country that finds this conduct just "part of the job."
And then something like this pops up.
Brian, in turn, seems to have been inspired by Alexis Madrigal's brilliant commentary in the Atlantic, in which he points out that Pike isn't necessarily an innately evil person. He was probably following orders:
Then came the massive and much-disputed 1999 WTO protests. Negotiated management was seen to have totally failed and it cost the police chief his job and helped knock the mayor from office. "It can be reasonably argued that these protests, and the experiences of the Seattle Police Department in trying to manage them, have had a more profound effect on modern policing than any other single event prior to 9/11," former Chicago police officer and Western Illinois professor Todd Lough argued.
No one wanted to be Seattle and police departments around the country began to change. "In Chicago for example, paramilitary gear such as that worn by the Seattle Police was quickly acquired and distributed to officers," Lough continued, "and the use of force policy was amended to allow for the pepper spraying of passive resistors under certain circumstances."
[Emphasis Madrigal's.]
Madrigal also points to criminologist Alex Vitale's observation that police are using vague laws to re-cast peaceful protest as a crime:
Consider what has precipitated the vast majority of the disorderly conduct arrests in this movement: using a megaphone, writing on the sidewalk with chalk, marching in the street (and Brooklyn Bridge), standing in line at a bank to close an account (a financial boycott, in essence) and occupying a park after its closing. These are all peaceful forms of political expression. To the police, however, they are all disorderly conduct.
I do think, however, that Madrigal goes a little too easy on Pike:
And while it's his finger pulling the trigger, the police system is what put him in the position to be standing in front of those students. I am sure that he is a man like me, and he didn't become a cop to shoot history majors with pepper spray. But the current policing paradigm requires that students get shot in the eyes with a chemical weapon if they resist, however peaceably. Someone has to do it.
No. No one has to do it. The police are not a military organization; there is no criminal penalty for disobeying orders. If Pike had refused to pepper spray those kids, the worst thing that could have happened is that he would have lost his job. If he had any doubts about what he was doing, he decided to ignore them in favor of a paycheck. He made a choice, and he deserves to suffer the consequences of his choice.
Mark Bennett suggests what those consequences might be:
Neither should John Pike be let off scot-free. Fired? Perhaps, though if he loses his job it will be a political move, intended to make people forget the institutional--and, indeed, societal--failures that allowed him to so cavalierly injure peaceful protestors.
But firing is too good for John Pike. John Pike should spend the rest of his life, until he publicly repents, feeling insecure. And so should every officer who followed him at UC-Davis.
They should not be able to go out to eat without knowing whether their food will be spat in, or worse.
Their babysitters should be chronically unavailable.
They should not be able to get their oil changed without knowing whether their drain plugs will be left loose, or park without knowing if they are going to get another door ding.
And the thing is, it seems likely that, contrary to Madrigal's speculation, John Pike may not be a man like the rest of us. From Boing Boing (by way of Scott Greenfield), comes an interview with one of the students:
W. tells Boing Boing that Pike sprayed them at close range with military-grade pepper spray, in a punitive manner. Pike knew the students by name from Thursday night when they "occupied" a campus plaza. The students offered Pike food and coffee and chatted with him and other officers while setting up tents...
"Move or we're going to shoot you," Pike is reported to have yelled at one student right before delivering pepper spray. Then, turning to his fellow officers and brandishing the can in the air, "Don't worry, I'm going to spray these kids down."
From this account, Pike apparently treated those kids like they were little more than a smudge to be wiped away. He sounds like a psychopath. Of course, there's no way to make that diagnosis from one incident like this, but this is definitely a data point in its favor.
Radley Balko has for years been referring to things like this as isolated incidents. That's more or less what every badgelicking police apologist calls them, as if everything is alright with the police except for the occasional isolated incidents by a few bad cops. But these isolated incidents keep happening over and over and over. Part of the problem, I think, is that we have given the police far too much power over us. That would be unwise even if the police were all honest and decent people, but it's downright suicidal given that some police officers are dangerous sociopaths.
Dealing with this reality is one of the central challenges of creating a system of government: The people we put in charge need to have access to enough violent power to perform the basic function of protecting us, but there need to be restraints on that power--legal, political, procedural--in order to limit the damage in those instances when, inevitably, evil people gain control of it.
We probably should have done something to stop this long ago, before it got so bad, but for God's sake let's do something now, before it gets any worse. In the unlikely event anybody heeds Brian's call for a national conversation on law enforcement, this is one of the things we need to be talking about.
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