Niagara Falls in My Office

I’m still not sure if I’m ready to post on this topic, but who knows if I’ll ever be. So here goes. Let’s address a few myths.

Myth #1: If you think your arrest is bullsh*t, you should fight back.

FALSE. If you resist arrest, the police have no choice but to take you down, period. Even if you’ve got a legitimate challenge, you’re just making things worse by resisting. Even if you think alternate remedies for your dilemma are ineffectual, resisting still won’t make things better. The moment of arrest is NOT the time to challenge the officers’ decision to cite you or take you into custody. That’s what courts are for. Police are not paid — and frankly are not trained or equipped — to decide your ultimate guilt or innocence. That’s not their job. They’re there to recognize reasonable suspicion or probable cause. And if they find the latter, you’re likely going to be arrested. If you resist, well guess what: That’s another completely separate and additional (and more serious) reason to arrest you. Similarly, if you engage in a scuffle with an officer at his car — whether it’s a minor tussling match or a desperate struggle for a gun — you’re going to be arrested, period. That’s not the sort of thing you can walk away from. You can’t ask the police to “let that go.” You just can’t. And finally, if after that encounter ends you suddenly turn and make a 300-pound B-line for the same officer, you very well might get shot. Just like if you smash someone’s head into the concrete, you might get shot; and if you point a gun at people, you might get shot. Yes, even if you’re 12. Unless the gun is bright orange, you might get shot.

Myth #2: All cops are racist.

FALSE. Not only is this claim factually bankrupt, but it’s strategically bankrupt as well. When I was litigating in civil court, I turned down a bunch of otherwise egregious cases of employment discrimination because the would-be claimants were always late to work, or did a poor job, or otherwise gave their employers a reason to take adverse action against them, irrespective of their race. So, Al Sharpton and ilk, if you want to combat racism, this isn’t exactly the best strategy. Let us assume for a moment that the officers involved in these high-profile shootings were all Imperial Wizards of the White Knights of the Ku Klux Klan. No evidence of that whatsoever of course, but let’s pretend for the sake of argument. Well, even in that case my previous debunction (yes, I made up a word) of Myth #1 would still apply. If there’s a race-neutral reason to arrest, the arrest will happen. If the cop is an Imperial Wizard and the arrestee is black, then hey, icing on the cake for the Imperial Wizard, sadly. But that wouldn’t invalidate the arrest. Likewise, if there is a reason to fire in self-defense, then it doesn’t matter whether the self-defender is racist or not. Is there implicit bias out there to contend with? Sure — that’s true everywhere in all professions with all races, and I’ll address it briefly in a moment. But let’s not be so quick to over-simplify things into broad stokes of black and white.

Myth #3: “Hands Up” always means “Don’t shoot.” 

FALSE. First off, as a factual matter, so far I’m not convinced either way. Brown’s hands might have been up; they might have been down. But honestly, unless his hands flew up into a fully taut, mathematically vertical, open-palmed, jazz-hands-style reach-for-the-sky and he simultaneously dropped to his knees and he yelled “I give up,” I’m not sure it matters a whole heck of a lot, from a practical standpoint. Think about it. Most attackers don’t come at victims with their hands by their sides. So even if his hands were up or outstretched, none of the Monday morning quarterbacks can really say whether it was a gesture of capitulation or one of antagonism.

Myth #4: No weapon means no threat.

Uh, FALSE. If you threaten my life either verbally or by the clear implications of your conduct, I have a right to believe you. And if you are obviously willing and physically able to jeopardize my life even without a weapon, I’m not going to give you the opportunity to demonstrate. Besides, who knows if you’ve got a weapon or not. Most people assume I have no weapons either.

Myth #5: “I can’t breathe.”

I’ll never know for sure of course, but I’m gonna vote “false” on this one too. At least the words were likely false at the time they were uttered. Look around and grab a cylindrical object somewhere in your vicinity. A bottle, a decent-sized flashlight, something with a bit of girth. Now hold it perpendicular to your neck and press it against your throat. Go ahead. Don’t be shy. Put some force behind it. Keep pressing until you’re unable to inhale or exhale. Now try to say “I can’t breathe” eleven times. Good luck.

That being said, chest compression due to excess weight (either Garner’s own weight, or that of the officers on top of him, or both) is another issue. But these lay eyes aren’t convinced that the “choke hold” was the culprit, at least not from the edited portions of the video that are available for public consumption. After all, from what I can tell Mr. Garner expired long after the “choke hold” had been released. Oh, and two other side notes here. (1) It’s my understanding that there’s a difference between a “choke hold” and a LVNR or a carotid restraint, etc.  And (2) there’s a difference between a maneuver being “against policy” and being “illegal.” So while that might be evidence of a tort for purposes of monetary damages (assuming there is causation), it’s not necessarily evidence of crime for purposes of imprisonment. Just saying. Hate to be the semantics nazi, but word choice matters.

Myth #6: A “No True Bill” proves innocence.

FALSE. Grand juries do not “prove” anything. In fact, theoretically prosecutors could resubmit these cases to the grand juries again later if they feel the evidence warrants it (though the process does vary from state to state). Grand juries don’t provide answers; they just decide whether there are any questions to be answered (by a trial). But these days people use the phrase “it’s been proven” about as precisely as they use the phrase “assault rifle.”

Myth #7: All police are benevolent, colorblind, humble, selfless, patient, honorable, innocent, peace-loving public servants.

Also false, unfortunately. The vast majority are; but a few aren’t. Of course nowadays the shameless, blatant, overt racist is a rare bird indeed. But implicit bias is less rare and also less conspicuous. And it is a factor. How big a factor? Hard to say. But it’s the sort of thing I can’t help but consider when the shopper on the left makes his purchase without incident and the shopper on the right prompts a frantic 911 call and moments later is shot dead by police (both in open carry states).


Now, before anyone gets all in a huff, please hear me out. Implicit bias and racism are two different things. Racism means you consciously, admittedly, genuinely believe that one race is genetically inferior to another, irrespective of actions or facts or evidence. Implicit bias happens subconsciously. It could result from something as innocuous as Officer Friendly having personally experienced or perceived that more crime is committed by black folks than by white folks. That prior experience informs the current one, which yields slightly different reactions to encounters with different races. At least at face value this seems to be a benign, objective judgment call. But Officer Friendly nonetheless will likely deny ever making such a call. Instead he might insist, as most officers do, that “I treat all suspects exactly the same — black, white, purple, green, or polka dot.” That’s politically correct, but it might be untrue, whether Officer Friendly realizes it or not. Either way, however innocently he might traverse this logical path in his mind, if the result is (or even merely appears to be) a higher body count for one race than for the others, then you’re going to get protests, period. You’re going to have mistrust. You’re going to get people desperately pleading that “Black Lives Matter.” And that statement is true even if the people holding those signs are doing so for misguided or misinformed reasons.

So, I get it if police are offended when football players enter the field with the now ubiquitous “hands up” gesture. I also get it if people are pissed when a police vehicle drowns out the “Black Lives Matter” chant with a broadcast of the song “Sweet Home Alabama” … in Chicago. After keeping my head in the sand and avoiding as much of the news coverage as I could for several weeks, the other day I finally web-surfed through some of the vitriol spewing from both “sides” of the debate and ended up reduced to a heap of hopeless waterworks on my office floor. I told a friend of mine that the only emotion I feel most days is despair.

Despair! Because all the little camps and all the little cliques have raced off to their little corners in their little comfort zones and they refuse to hear anybody else or consider any other perspective. Some of my liberal friends look at me and say, “Hey Tiff, you’re a lawyer. Explain to my son why the criminal justice system is inherently racist and black men don’t stand a chance.” Then some of my conservative friends say things like, “Hey Tiff, I’m glad you’re not one of those types, out there protesting and whining instead of working hard and getting off welfare.” Both comments make me cringe. And yet, both in many ways reveal a kernel of truth, though neither one can see that about the other.

On the one hand, this Los Angeles cop has a completely valid point:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge… Most field stops are complete in minutes. How difficult is it to cooperate for that long?

On the other hand, this former St. Louis cop is probably not delusional either (though his account is equally “harsh and impolitic”):

[After joining the police force,] I quickly realized how naive I’d been. I was floored by the dysfunctional culture I encountered. I won’t say all, but many of my peers were deeply racist. One example: A couple of officers ran a Web site called St. Louis Coptalk, where officers could post about their experience and opinions. At some point during my career, it became so full of racist rants that the site administrator temporarily shut it down.

Here’s the deal. Regardless of what happened to Michael Brown or Eric Garner or anybody else, the police do have a right to go home to their families. And regardless of what happened to Brown or Garner, black lives do matter. Both are true. And neither idea should be ridiculed or scoffed at or trivialized or dismissed or taken lightly. To do so is not only counter-productive, it’s dangerous. Until we all realize that, the piddly handful of Al Sharptons of the world will continue to grow in wealth, power, and influence … as will the piddly handful of Imperial Wizards of the Ku Klux Klan.

As sad as these recent deaths are, I think at the end of the day, the self-defense narrative is at least plausible in most if not all of the cases. At the same time, I also think many of these deaths could have been avoided — yes, by different choices from those who were shot, but also by different choices from those who did the shooting.

Exhausted. Stopping for now. More soon — maybe after a few happier posts about my highly-anticipated BSG!!!!!

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