UPDATE:
Chuck made some excellent points, as usual, in the comments. I am responding there, but I thought I should clarify at the top of this post something I’d wanted to emphasize below, but didn’t.
That is, what I’m really upset about is not the attitudes, reactions, or intent of individual cops. Cop-bashing results from making sweeping generalizations about police attitudes, and I’m certainly guilty of it in the post below. Chuck’s right that it’s not productive or fair. What’s more important is that it misses the point, which is that the problem is really situational:
1) Police officers are trained (correctly in my view) that persons brandishing knives within 21 feet or less, or firearms at greater distances, can pose a mortal threat; they are also trained that they are legally justified in defending themselves with deadly force if they are faced with such a mortal threat.
(Whether they are trained to understand that any armed citizen is ALSO legally justified in defending themselves with deadly force against a similar mortal threat, I do not know. Nor do I think it would matter, because:)
2) Police officers are also trained that officer protection is paramount if they want to go home to their families at the end of their shifts. The result is:
3) When faced with a potential threat, and the need to classify it in a split second as mortal or not, officers have a quite rational impetus, based on the above, to err on the side of perceiving a mortal threat — because if they err to the other side, they may not go home that night. (I have always thought this alone explained the rash of “puppycides” — dogs in a home that are demonstrably not presenting a threat still get shot by cops as a matter of routine. The thought process, I suppose, would be that dogs are fast fast fast, and if Officer Friendly doesn’t terminate the potential threat of Rover, he might not go home, etc.)
4) Because 99.9% of the folks police interact with are, frankly, criminal scumbags, and the cops know this quite well, there is I am sure a quite rational presumption by most officers that most of the people they encounter with guns are committing a crime simply by possessing them. And if Officer Friendly shoots Joe Felon, and Joe was (truthfully) scum, odds are there will be plenty of legitimate evidence on hand that Joe Felon was in fact engaged in some sort of crime, and thus NOT LEGALLY JUSTIFIED IN RESISTING Officer Friendly. (Also, that sort of evidence makes for a very strong immunity from prosecution and expectation of a winning defense by the department’s legal counsel in the event of a civil suit.)
5) Unfortunately, all of this causes significant problems in situations when points 1-4 collide with an armed citizen — whether a CCW holder walking out of a store, or a homeowner trying to defend himself against a home invasion.
Note that the above analysis excludes consideration of individual officers’ attitudes, reactions or overreactions to less than total obedience on the part of a citizen — the starting point for most cop-bashing exercises. It’s not even necessary to bring that into the discussion to see that this situation promotes the death of armed citizens at the hands of police — accidentally or not. How to prevent these deaths? I do not know.
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ORIGINAL POST BELOW:
I never thought I’d see the Z retract a post. Especially this one.
in the instance of a raid at a mistaken address, where a police officer is killed by an armed citizen, then a parade should be held for that citizen. If a police officer kills a citizen at a mistaken address raid, or while executing a warrant-less search, or a search like the one in Arizona that cost a young Marine combat veteran who had committed no crime, had no criminal history, was a decorated veteran, family man and hard-working employee his life–because the police lacked the most basic firearms discipline, had a negligent discharge, and responded to their own weapon going off by firing 70 rounds–and killing a Marine who had committed no crime.
That’s a really long run-on sentence to say this: Every cop who raided that house should be put on trial for murder. Plain and simple. They violated his rights, they raided his home, and their own ineptitude caused his death–all by actions which they initiated.
[Strikeout in the original, now that Chuck retracted that post.] Chuck’s right about lots of things, wrong about few. He was wrong to retract, IMO.
This made sense. (“Felony murder rule for me? Then felony murder rule for thee, too.”) I like and respect police officers for the work they do. However, I’ve seen enough police misbehavior — such as this, caught on their own video cameras, no less — that’s so utterly blatant in its disrespect of citizens’ lives and property, its presumption that citizens are subjects of police whim, that it frankly doesn’t matter if, as Chuck says in his new post,
Essentially, he’s saying, it’s tough out there, and humans make mistakes; we should give our heroic warriors the benefit of the doubt and presume they acted lawfully, even in tragedies like this. Here’s the problem: That doesn’t matter. These weren’t bad cops. These cops likely did everything lawfully. Their intentions don’t matter. The situation is the problem. The situation is that there will in all likelihood be no justice for the widow or her child, or the dead Marine. There may be financial compensation, paid from the city’s insurance, but there will be no criminal prosecution of the officers, and that’s the problem. Why do so many people instinctively echo Chuck’s now-retracted words above? Because there’s no just remedy. They should be tried for murder, but they won’t.
As for the rest of it, Chuck makes a great — on its face — parallel to the Haditha marines (go read it) — and points out one of his own near-shootings in-country of a kid who foolishly grabbed at his rifle. There but for the grace of God goes Chuck, etc. Hey, I’ve been through a wrongful shooting myself. I know how fast a mistake can turn fatal. But there are three big logical flaws here.
The first is the failure to note that there’s no need to “presume” the cops acted lawfully; the anger out there comes from the reality that by definition they acted “lawfully.” I’m sure the shooter(s) will say they felt threatened by the sight of the Marine with his AR; I’m sure that’s a true statement — who wouldn’t be frightened? — but under current law, that means they were legally justified in wrongfully killing him, defending themselves against a threat. They were on a raid; they had a warrant; they will all say they “knocked and announced,” and it doesn’t matter that the Marine would also have been legally justified in defending himself and his wife and child because he didn’t hear that knock-and-announce. He’s dead, and they will get away with no significant punishment for their lawful but horrific misdeed, because they were legally justified in killing him for defending himself against them. That’s the law, and we’re all fucked because of it.
The second logical flaw is the concept that just because cops are in ultra-high-stress situations on raids, gosh darn it, they require the benefit of the doubt when something goes wrong. Bullshit. That idea might have had merit before the militarization of our police forces, with the attendant adoption of “officer protection” as the most important factor in any situation, such that every situation now requires overwhelming force be directed against the citizen, whether or not he’s in the right. Under these circumstances, cops absolutely do NOT deserve the benefit of the doubt if they fuck up. They’ve weighted everything so much in their favor that fucking up in this sort of raid situation (i.e., killing an innocent civvie “by mistake”) should theoretically be impossible.
But the most critical and important logical flaw in Chuck’s recantation is the absurdity of the parallel between high-stress warriors on the battlefield and police officers engaged in domestic raids. The laws of war don’t apply here at home. Even though 99.9% of the people cops come into contact with are the scum of the earth, if that means cops have come presume they can do whatever they want to whoever they encounter who has the temerity to resist — because the cops presume they’re criminals — then the rest of us, as I said, are fucked.
I am friendly with any cop I meet, but in my fifteen years as a lawyer, and from discussions with prosecutors, civil attorneys, and cops, I believe three things about the majority of cops:
1) They do not know the law. They know enough law to make a credible justification to cite somebody for a violation, or justify their own actions, but that’s generally the extent of their knowledge.
2) Cops will stubbornly stick to what they think the law is, even if you’re showing them the clause proving them wrong in their own statute book, and will write you up regardless of being completely wrong. (Aside: Cops are bullies on this point. On one occasions I presented myself at the station to earnestly and reasonably talk to an officer about why his contention that I failed to follow the law was completely incorrect, I was startled to notice the guy’s hands trembling as we sat down to go over the statute. At five-eight and doughy in my middle years, I’m not an intimidating guy, I don’t think — but here was a six-foot officer, easily double my weight, terrified by the prospect of a non-scumbag attorney firmly and politely challenging him. He’d probably guessed the prosecutor would never prosecute me, and once it was clear I knew that too, he didn’t know what to do next except robotically stick to his guns. The Blue Line is always in effect, even if it’s a line one cop long.)
3) The Blue Line is real. One of Chuck’s commenters mentions his belief in it, and Chuck’s retort is, in essence, so on that point you think all cops are liars? Fifteen years’ experience in the legal system here, and plenty of discussions with cops, and I will say yes, they are, when it comes to this sort of situation. The exceptions are so rare as to astonish.
Add up those three factors, put them into a home invasion — oh, sorry, I mean warranted raid — and I think you can see why in my mind Chuck’s first blog post was the right one. Lawsuits don’t work to change minds. I am an officer of the court, and I have no hesitation in saying the system is so completely broken that cops will almost never face justice for this sort of misdeed. As for the larger picture, civilian authorities who try to change police procedure run into the Blue Line in different form. As a citizenry, the only option we have left is to impotently jeer.
Sorry they got to you, Chuck.
YES!! YES!! YES!! Hit that nail square on the head!!
Jeer, and when a civilian does survive an encounter like this and is charged for resisting arrest to murder; nullify.
You know who else was doing their job?
Guards at Auschwitz.
“The only thing necessary for the triumph of evil is for good men to do nothing.” – attributed to Edmund Burke.
Okay, so you’ve seen the abuses from your side of the legal system for 15 years.
Judges see people in their court rooms every day, the vast majority of them guilty.
Do you know why? Because the prosecutor wouldn’t have them in there in the first place if he didn’t think they were guilty, and more importantly, didn’t think he could prove they were guilty.
Based on the judges point of view, since the majority of the people who come before him are found guilty, is it any stretch to believe that judges, the longer they ride the bench, will become jaded? Will eventually come to prejudge everyone sitting in the defendant’s chair? Or, that as a lawyer whose job it is to get your client out of hot water, that you target police procedure as the most likely means of finding fault, and stand to reason that since either the procedure followed was flawed, or the police failed to follow the proper procedure, and you yourself have come to believe that all police are bad because of it?
Our prisons aren’t full of innocent people, regardless of how many of them maintain their innocence. Police do follow procedure, they do follow the law.
And if you honestly believe that they don’t, then what have you done as a private citizen to effect change? If you’ve done nothing, then you are just as complicit as they are for allowing the abuse to continue, and doing nothing about it.
Police are working daily in a hostile environment. Maybe not Deputy Donut Drowner at the local Krispy Kreme, but plent of police in larger metro areas are. The populace sees them as ineffective, or unable or unwilling to help, the populace won’t come forward to help, and they are left on their own, separated from the very people they are sworn to protect and serve, by those people’s prejudice. Do you think police would appear as hostile if the majority of people they ran into were open and honest with them, and welcomed them? Do you think, really, that all police are on the job solely to bully the citizenry, or worse?
I have retracted exacly two posts of the nearly 1700 I’ve written in the last six years. Two. The other went down the memory hole, but I left this one in place because I wanted to illustrate how my emotional response differred from my rational one. Granted, in an armed society where people took responsibilty for their actions and safety, violent and property crimes would be drastically reduced. But we are not living in an armed society where people secure themselves. We don’t live i. A society where people watch out for their neighbor, or where people actively assist police. (It’s why rewards have to be offered to people for doing the right thing.)
Police are quite frequently veterans, if not concurrently serving in the national guard or reserves. Why do they get the benefit of the doubt in their green uniform, but not their blue uniform? The only thing that changes is the operating environment and the color of the cloth they wear, but we hold our servicemembers up on a pedestal of honor and integrity, but look down on police as just a hair’s breadth away from becoming the town sheriff in First Blood.
And Toastrider, Godwin’s law applies, so your arguments are invalid.
As to who “got” to me… A very close friend was very upset by what I wrote. That friend isn’t a cop, but she pointed out the blatant hypocrissy in the milblog communtiy anytime a servicemember runs afoul of the law. When servicemembers break the law, it’s “lets wait till we have the facts!” and when cops may have screwed up, it’s “burn them at the stake!”. You don’t have all the facts in this case, and you’ve made your mind up. The majority of the information you have, in this case, comes from news reports… The same news reports that screamed how Jared Loughner was a deranged tea-partier. But there is no examination of sources, no reasonable suspiscion that they would get every detail in this story right, when they fail to do so in many other stories.
As a lawyer, why don’t you understand that everyone is innocent until proven guilty? Even the police. Every case is different, every case should be tried on its own merits, and every verdict should come from careful examination of evidence. I am not saying that in this case, the police were right. I am saying that to assume all police are bad is to malign a vast population. Your rationale of believing all police are liars because of the ones you’ve dealt with over the last 15 years, many were liars, doesn’t wash. By your reasoning, since the large majority of violent criminals currently incarcerated are black males, then all black males should be treated as violent criminals, right?
His argument is invalid because he makes an unpleasant comparison? Not hardly.
Been around a lot of cops over the years, and for at least the last ten the general advice of them has been ‘in any official contact the only thing you should say is “Yes or No, Sir/Ma’am”; don’t say ANYTHING else without a lawyer.” And there’s reason for that, part of which is the ‘can and WILL be used against you’, even if you aren’t guilty of what they’re investigating. There was a video a while back- can’t find it right now- in which a lawyer and a police detective both said “Do NOT talk to the police without a lawyer”, the officer detailing how an innocent person can wind up arrested and jailed because something he says will be used against him; that’s not real confidence-inspiring.
Add to that the number of wrong-address SWAT raids, that far too often wind up with someone injured or dead, the overuse/misuse of SWAT teams, there’s a real damned problem. And saying “The officers should get the benefit of doubt” doesn’t change that. And every time there’s another raid like that it makes it harder for people to trust the police; especially when the officers don’t face any real discipline because “They were following standard procedure”. Even when they went to the wrong place or after the wrong guy and in the wrong way.
And, by the way, an awful lot of bloggers said things like “Something smells here”, or “If the information is correct, they should be charged”; should we not say those things either?
Found that video: http://www.youtube.com/watch?v=6wXkI4t7nuc&feature=player_embedded
Well, isn’t this just icing on the cake: “A report by ABC News affiliate KGUN found that more than an hour had passed before the SWAT team let the paramedics work on Guerena. By then he was dead.”
http://abcnews.go.com/US/tucson-swat-team-defends-shooting-iraq-marine-veteran/story?id=13640112
Chuck, thank you for coming here and commenting. As always, I appreciate your thoughtful arguments.
As for your points, I’ll take them in reverse order.
I’m not saying all cops are bad. I am saying that I believe almost all of them will lie, about small things or large, in order to protect a brother officer or, more commonly, to ensure a perp actually goes to jail — yes, in part because of the crap criminal-defense attorneys will pull to get their clients plea deals. When those lies are based on an officer’s perception of a situation, it becomes much easier for them to justify, because nobody can prove an officer’s perception was wrong. A BART officer of my acquaintance has told me that outside most of the BART stations in and around the East Bay Area, it’s pretty much a guarantee that if they detain any random somebody, they will find out he’s a criminal within minutes — either he or she’s carrying contraband, or has open warrants for his or her arrest. That’s just the nature of the population they are dealing with in that urbanized area (and no, the perps are not all black males). Coming up with that probable cause to make the stop becomes the key, because it’s a sure bet when you search the person you’ll find something to justify putting them away. And since that probable cause is so heavily based on officer perception, well, there’s a huge incentive to lie. Imagine how much greater the incentive when it’s a brother officer’s life or career at stake. Again, I’m not saying this makes a bad cop. It’s a cop who’s dealing with his situation in a way that allows him to achieve the greater good of protecting the public, where the truth or falsity of any particular lie can only be found in his head.
As for innocent until proven guilty, that applies in courts because that’s the high standard we require the government to meet before depriving convicts of their liberties. That standard does NOT apply in the “court” of public opinion, although it’s certainly one to which I admit I should aspire.
Why do police get the benefit of the doubt in their green uniform, but not the blue? You say the only thing that changes is the operational environment, and that’s the key. As onerous as the rules of warfare are nowadays (and I studied them during Gulf War I), they are still not as restrictive as the requirements of Constitutional rights and liberties, and not as complex as, say, California’s statutes. Police are theoretically held to a much, much higher standard in the American legal system than any soldier on the battlefield.
As for the hypocrisy, while your friend makes a very good point, the singular difference between “wait till we have the facts” and “burn them at the stake” is, I believe, the fact that in the latter case, the police are agents of the State acting against fellow citizens. In the former case, the military are agents of the State acting against, to be blunt, the enemy. As much as JAG may make you feel otherwise, there’s going to be a lot more leeway granted when a “victim” is literally the enemy of the State. Cops are not supposed to treat suspects as enemies of the State.
You are correct that police work daily in a hostile environment. As you suggested in your post, perhaps it’s more hostile or stressful in some respects than the battlefield. And that certainly would make the shooting of the Marine understandable. Again, I’m not saying the cops in Arizona were bad — I suspect their actions were completely within the law. And they may have been completely understandable under the circumstances. The individual officers did nothing unlawful. But even if the Marine was the criminal they were looking for, the circumstances of that shooting were not right.
How to get past that situation? Yes, closer civilian/police relationships would help, but…. I know one woman who works as a 911 dispatcher, and it has completely soured her outlook on her fellow citizens, at least the ones who call 911. I’m not sure the divide can be bridged.
For my part, I’ve helped in a small way with the CalGuns Foundation, which has made a significant effort to educate police officers and citizens on what is and is not an illegal gun under California law, and worked in administrative hearings and in the courts to stop deliberate disinformation on that point by anti-gunners in the AG’s office, as well as defending California gun owners wrongfully arrested or charged. But at least here in California, it’s still the case that if you have a gun with you when you encounter an officer, you have a very real risk of having your weapon unlawfully confiscated and/or being unlawfully thrown in jail, even though you and your gun are completely legal and the officer completely wrong about the law. And any attempt to educate the officer on the reality of the law is foolhardy at best, life-threatening at worst. I suspect things are much less stressful between gun owners and cops in most of the other 49 states, but there we are.
And yes, I’m involved in City government where I live, although I’m not in favor of a citizens’ police review commission, because at least here in the Bay Area those turn into entrenched forums for true cop-bashing, funded by taxpayers. No, I don’t have a good alternative either.
When I say cops don’t know the law, I’m talking mainly about California, since that’s what I know, and frankly, they can’t be expected to know the thousands of statutes and their intricacies beyond the basics necessary for their daily operations. That’s not the cops’ fault; it’s situational.
Lastly, it looks like you inferred that I was a criminal attorney, which I’m not. If I implied that I was, I didn’t mean to. But I am familiar enough with the civil side of things to say that the system is very broken. We truly have a legal system now, not a justice system.
More to the point, I really see this incident as a harbinger of many future tragic encounters between police trained to use the threat of lethal force to subdue criminals — and justifying the use of that force in their own self-defense — with armed citizens, whether in public or the home, reasonably asserting their right to self-defense. The situation inherent to these encounters (which I outline in my update of the original post) means the odds are overwhelming that the result in each case will be the death of the armed citizen. I’ll only note one case of one armed man, killed by officers brought in to enforce the law. They were acquitted of his murder, on the grounds of self-defense — but his death had much larger, unintended consequences.
His name was Crispus Attucks.
“When I say cops don’t know the law, I’m talking mainly about California…”
David, you may find this writeup of a CA OCer’s encounter interesting: http://caopencarry.blogspot.com/2010/09/source-of-ab1934.html
“don’t know the law” hits the nail on the head.
More details:
http://www.huffingtonpost.com/2011/05/25/jose-guerena-arizona-_n_867020.html
Let me try that again:
More details here