Don't Give Special Rights To Anybody! Oh, Except Cops. That's Cool.

I was all set to write a post making this point: it's offensive and irrational for the police to say "we have to protect the identity of a cop who shoots a citizen, for safety" when the criminal justice system routinely names suspects and defendants — either openly or by leak. People are accused of horrible crimes all the time, and does the system hold back their names out of fear that they or their families will face retribution? No.

But Kevin Williamson has already done a great job writing that post:

Here’s a microcosm of the relationship between state and citizen: We know the names of the nine people charged with felonies in the Ferguson looting, but not the name of the police officer at the center of the case.

Here's what I want to add to Kevin's observations: this particular piece of special pleading for cops is not unique; it's part of a pattern.

If you are arrested for shooting someone, the police will use everything in their power — lies, false friendship, fear, coercion — to get you to make a statement immediately. That's because they know that the statement is likely to be useful to the prosecution: either it will incriminate you, or it will lock you into one version of events before you've had an opportunity to speak with an adviser or see the evidence against you. You won't have time to make up a story or conform it to the evidence or get your head straight.

But what if a police officer shoots someone? Oh, that's different. Then police unions and officials push for delays and opportunities to review evidence before any interview of the officer. Last December, after a video showed that a cop lied about his shooting of a suspect, the Dallas Police issued a new policy requiring a 72-hour delay after a shooting before an officer can be interviewed, and an opportunity for the officer to review the videos or witness statements about the incident. Has Dallas changed its policy to offer such courtesies to citizens arrested for crimes? Don't be ridiculous. If you or I shoot someone, the police will not delay our interrogation until it is personally convenient. But if the police shoot someone:

New Mexico State Police, which is investigating the shooting, said such interviews hinge on the schedules of investigators and the police officers they are questioning. Sgt. Damyan Brown, a state police spokesman, said the agency has no set timeline for conducting interviews after officer-involved shootings. The Investigations Bureau schedules the interviews at an “agreeable” time for all parties involved, he said.

Cops and other public servants get special treatment because the whole system connives to let them. Take prosecutorial misconduct. If you are accused of breaking the law, your name will be released. If, on appeal, the court finds that you were wrongfully convicted, your name will still be brandished. But if the prosecutor pursuing you breaks the law and violates your rights, will he or she be named? No, usually not. Even if a United States Supreme Court justice is excoriating you for using race-baiting in your closing, she usually won't name you. Even if the Ninth Circuit — the most liberal federal court in the country — overturns your conviction because the prosecutor withheld exculpatory evidence, they usually won't name the prosecutor.

And leaks? Please. Cops and prosecutors leak information to screw defendants all the time. It helps keep access-hungry journalists reliably complaint. But leak something about an internal investigation about a shooting or allegation of police misconduct? Oh, you'd better believe the police union will sue your ass.

Cops, and prosecutors, and other public employees in the criminal justice system have power. It is the nature of power to make people believe that they are better than the rest of us, and entitled to privileges the rest of us do not enjoy.

The question is this: are we so addled by generations of "law and order" and "war on crime" and "thin blue line" rhetoric that we'll accept it?

Last 5 posts by Ken White

Comments

  1. Robert says

    All due respect, but women who accuse men of rape get similar "special rights." There were credible threats of violence issued to this man. I certainly don't like police overreaction, whether in response to violent protests, or in response to some idiotic rancher's rent dispute, but I try to be morally consistent.

    I think some caution from the police is not unwarranted here.

  2. jaxkayaker says

    Good post, as per usual. Minor typo: "complaint" should be "compliant" in the antepenultimate paragraph.

  3. says

    With all due respect in return Robert, I'm not sure what you are talking about. The media generally doesn't print the name of alleged sexual abuse victims. But that's the media's choice. Cops and prosecutors don't hand out the names of witnesses in sexual assault cases, but they don't hand out the names of witnesses in other cases either.

    There are credible threats of violence issued about many people accused of crimes. Yet they are named.

  4. Mary says

    @Robert: that's not an exception. Unlike people who are accused or suspected of shooting someone or withholding evidence, women who report rape aren't suspects or defendants.

  5. Peter H says

    Robert,

    The police officer here is analogous to the accused rapist, not the woman accusing of rape. The accused rapist does not get similar "special rights."

  6. Adam Steinbaugh says

    @Robert:

    Victims of rape or sexual get the "special privilege" of not having their names plastered all over the media because they are victims. We want victims to come forward –naming them would obviously deter them. Naming police officers who shoot people would deter them from shooting people. Naming rape victims would not deter then from, er, becoming victims themselves.

    Also, victims get that "special privilege" whether they're women or men. But interesting choice to raise the "special privilege" of women rape victims.

  7. ghost says

    Like Clark says, the system is working exactly as it was intended. Burn it to the fucking ground.

  8. says

    In Civlization 2, it was frequently noted by players that a Phalanx unit – an early game defense-oriented unit – could often destroy a modern day battleship.

    So I can totally understand the police being cautious here.

  9. says

    The question is this: are we so addled by generations of "law and order" and "war on crime" and "thin blue line" rhetoric that we'll accept it?

    (Shakes Magic 8 Ball)

    "All signs point to 'Yes'."

  10. says

    @Adam: Robert's use of "women who accuse men of rape" implies he is seeing the accused rapist (who is usually named, since as Ken notes, those accused of crimes, unless they're cops, typically are) as the "victim", not the accuser. One may draw whatever conclusions seem appropriate from that.

  11. Chris says

    If you or I shoot someone, the police will not delay our interrogation until it is personally convenient.

    Yes, they will, if you refuse to speak to the police without your lawyer present and exercise your right to remain silent.

  12. says

    Yes, they will, if you refuse to speak to the police without your lawyer present and exercise your right to remain silent.

    So, if I'm accused of shooting someone, I can tell the police, "Hey, it's going to take me maybe a week or two to get my papers together, find me a good lawyer, and so on, so maybe I'll come by the police station, oh, next Friday, about 2:00 in the afternoon? Cool."? Somehow, I oddly doubt that. Ken has noted, many times, the (perfectly legal) tactics the cops will use to break down a suspect, none of which get tossed out the window if the suspect intones the magic phrase of "I won't talk without my lawyer.". ("Hey, Charlie. He says he won't talk without his lawyer." "Oh, really? Darn. Well, better let him go home, then. That's that.")

  13. Dan Weber says

    Robert, I will say the point you raise is in general interesting and in general worthy of discussion. But it is irrelevant to the topic at hand, despite sharing a few keywords and themes.

    More relevant: I've noticed journalists are willing to censor information about fellow journalists but not about the general public. Most professions have an in-group-vs-out-group bias. "You don't understand what it's like inside," the insiders point out, most correctly, but without realizing that those insiders usually don't understand what it's like for people outside their group, or inside other groups.

  14. jimmythefly says

    @ Chris

    True. And officers accused of a crime have the same rights to refuse to speak. But the fact that they have put into law a mandatory waiting period shows their true views on the subject, why can't they just use the same rights as all citizens already have? There's a reason they want to enshrine a special privilege, and that's because, as insiders, they know just how fragile and manipulable the normal citizen's position is.

  15. PonyAdvocate says

    The question is this: are we so addled by generations of "law and order" and "war on crime" and "thin blue line" rhetoric that we'll accept it?

    Yes. Yes, we are. (And don't forget about the "Global War on Terror".)

    Americans like to mythologize themselves as fearless lovers of liberty. Mostly, though, we are as craven as anyone when it comes to sacrificing liberty to gain a modicum of (perhaps illusory) security, especially if that sacrificed liberty is someone else's. Nor does it help that so many politicians, prosecutors, police officials, and judges are cynical, or stupid, or bullies, or some combination of these.

  16. says

    @Dan: Most PEOPLE have an in-group/out-group bias. It's related to Dunbar's Number, our innate limit on how many people we can actually conceive of as PEOPLE. Everyone else is a gradually less-well-defined collection of labels and categories. Because this is so deeply hard-wired into our brains, there's no real solution: As soon as group is defined well enough that people can decide if they're in the group or not, the instinct to put "my group" ahead of "them" comes into play. If the cops think the journalists are "out to get them", they're partially correct: To the journalists, their fellow reporters are "we", and the cops are "them". Which side you're on depends on who you consider most like you. If you're a conservative who thinks the media is full of left-wing intellectual elitists out to destroy America, your instinct, even if the evidence is against it, is to support the police. If you think the cops are inbred racist thugs and bullies, you'll be likely to believe any charge leveled against a police officer, even if the accuser is less credible than an email from a Nigerian Finance Minister. You can override these instincts if you force yourself to, but it's an effort. No human is above this or immune from this. The best we can ever do is try to recognize it, but even the recognition of bias is filtered through that bias.

  17. Ronald Pottol says

    If this wasn't standard behavior for so many police departments, I could perhaps see it in this case. But it is standard to cover up as much as they can in all shootings in so many departments, that they need to be transparent. And after they have our trust, they won't need to hide such things.

  18. ghost says

    Kilroy,
    We don't fail. You just don't listen. Burn it down. That's all. Don't rebuild. Don't replace. Don't take back power, abolish it.

  19. The Wanderer says

    ghost:

    If you don't replace it with anything, someone else will replace it with something, and that something will probably be worse than what you might have chosen as a replacement – and, indeed, probably worse than what we currently have.

    "Nature abhors a vacuum", and a power vacuum will be filled more certainly than any.

    The only way to definitively and permanently prevent the existence of all types of power structure is to kill enough people that there aren't enough people left to exercise power over one another. Which might well equate to "all but one person".

  20. ghost says

    I'm well aware of the risk. Anarchy is no guarantee that citizens will be free from murder, robbery, rape, or kidnapping. But government is a guarantee that certain costumed gang members will be allowed to do such things to you with immunity from prosecution. If you'd rather pay the gang for the privilege of their protection, that's fine for you. Just don't delude yourself into believing you're free.

  21. JohnSteven says

    @everyone commenting on Robert's comment:

    I assumed that he was drawing a parallel between the woman (implied falsely) accusing someone of rape and the prosecutors who were not punished for misconduct..

  22. That old guy in the corner says

    One night, about 35 years ago, sitting around the kitchen table and chatting with a relative and his colleague, both of them police officers, I mentioned that "if you're arrested but know that you're innocent, then you have nothing to fear and should cooperate with the police." Their faces went blank and unblinking for a couple of beats, then they looked at each other. Then they both burst out laughing and said that, when you're innocent, that is the most important time to lawyer up. What can I say? I was a conservative and naive, even at age 30 something. Mea culpa.

  23. ghost says

    So I would be responsible for my own protection. Much like I am now. If a gang were to attack my home, I could reasonably rely on neighbors in my community for assistance. If I am attacked by a government, I can reasonably rely on my neighbors to assist the state.

    The real question is, why do you need a ruler?

  24. Dan Weber says

    I need to double-up on what PonyAdvocate said. Read that Balko article. There might be no one in America better prepared than he is for this debate.

  25. Kilroy says

    Sorry, that isn't the real question.

    What is nice about having a government, is you are much safer from gangs attacking your house.

  26. Neal Hoffman says

    @Ken, Your earlier comment suggested that you find the alleged death threat claim (for not releasing the name) unpersuasive for why the name isn't being released. When you note that names are released in other instances when threats might arise, do you make that statement from a position that more names should be withheld given the threats (but since we don't, why should the officer get special treatment), or do you feel that the public's right to know trumps general threats? Would the analysis change if the threat was deemed credible? And do you know what liability, if any, could arise to the party disclosing the name if they were aware of a threat and the threat was carried out? Always wondered on that one.

  27. Paul Baxter says

    I think there are probably lots of issues bound up together here. One obvious one is that the police get special treatment because they are intimately bound to the whole prosecutorial system. I don't suppose there's much to be done about that underlying reality. Another is that police, as a class, are mandated with state sanctioned use of violence in the performance of their duties, subject to a variety of constraints. This means that police will fairly regularly be involved in actions which would ordinarily be criminal for other people, which in turn means that "presumption of innocence", in a casual layman's sense of that phrase, will probably have to be wider than normal for other folks.

    All that being said, I would love to see more discussion of very practical measures to prevent or otherwise deal with police abuses of power. One thing which seems reasonable to me is that any accusation of improper conduct by any law enforcement official should be handled by a different level of law enforcement–a different organization. One of the really valuable things about the American system of law enforcement is the independence of city, county, state, and federal law enforcement. There should be a presumed conflict of interest for a law enforcement agency investigating itself. Let the state police investigate city police operations, etc.

  28. says

    @Neal: my point is that nobody EVER talks about not releasing a criminal defendant's name. Some people — accused murderers, accused child molesters, people accused of hurting animals — get plenty of death threats. But "let's keep their identity confidential" is not a concern on the radar. At best they'll put the person in a bulletproof vest while they walk him or her to court.

    So: why is it on the table for cops, and not for others?

  29. The Wanderer says

    To quote (with very slight elision) from the Radley Balko article:

    "If citizens are reminded over and over again that the law has no respect for them, we shouldn't be surprised if they begin to lose respect for the law."

    That's a key observation, and goes far beyond this one incident. Those in power would do well to listen to it, even if all they want to do is preserve their own power rather than actually institute meaningful reform.

  30. ghost says

    Jose Guerena would probably disagree with you, Kilroy, but he can't. Because a gang with badges murdered him in his own house.

  31. Jason says

    So, while I'm reading this up come Empire by Queensryche in iTunes. A song that notably speaks to the late eighties early nineties rise of drug gangs and violence. The song includes a spoken part lamenting how little the federal government is spending at that time to fix/assist law enforcement.

    My how times have changed.

  32. Dan Weber says

    From the WaPo link:

    “I hope you’re happy with yourself,” one officer told me. And I responded: “This story’s going to get out there. It’s going to be on the front page of The Washington Post tomorrow.”

    And he said, “Yeah, well, you’re going to be in my jail cell tonight.”

    Did the cop think this would dissuade the reporter? Spending a night in a jail cell ranges from inconvenience to tragedy for most people, but for a reporter it purely increases his status among his peers.

  33. Rob says

    I'd love to see the cops and prosecutors sued over their special treatment. An equal protection lawsuit should be a slam dunk. Unfortunately, it'd be hard to get passed the "standing" requirements, especially since the people who benefit from these special protections are the same people who get to decide who has standing.

  34. Smiling Dog says

    Can I "third" a recommendation on the Washington Post link provided above? It was a really good read, even to this non-American.

    And the author's name rang a bell but I couldn't place it, so I'll take the liberty of posting here the author's bio from the bottom of that piece:

    Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."

    I do hope I have the tags properly formatted!

    Oh, "long time reader, 2nd time poster" *waves at Ken*

    I truly love your writing.

  35. Neal Hoffman says

    @Ken, it's a valid point. And I'm sure the motivation here is somewhat less than noble.

  36. says

    Ken,

    This is off-topic, but the email address I had for you bounced my message back. I want to ask you about reposting one of your posts on a free on-line American Government textbook I am developing. If you would consider it, please shoot me an email.

  37. PonyAdvocate says

    I would love to see more discussion of very practical measures to prevent or otherwise deal with police abuses of power.

    Here's a thought (I may have read this someplace or heard someone else suggest it — I'm not sure I'm smart enough to have thought of it on my own): If members of a Law Enforcement Agency (LEA) commit misconduct, and if the victim(s) of the misconduct receive money damages, have such damages paid directly from the assets of the LEA's pension plan (and no having the government of which the LEA is a part reimbursing the plan, either). That way, financial accountability, at least, is more squarely where it belongs. For example, suppose that, as described this morning on NPR's "Morning Edition", you're a young black man from Aurora, CO driving in Denver, and you're pulled over by Denver PD officers for a traffic violation, and after you're patted down, they start searching your car, and you say, respectfully, that if they're going to search your car, you want them to get a warrant, and because you so mildly suggested you want your rights respected, they beat the living shit out of you, and while you're lying on the ground bleeding and broken, they press a gun into the back of your head and say they probably need to kill you, and then you lose consciousness, and when you come to, there are several more officers around, and one of them says to you, "What about that warrant now, you fucking nigger?", and a few years later, you settle with the city (not the police department or officers) of Denver for (only!) $795,000 — what if all that happened, and instead of the city (i.e., all the taxpayers) paying the settlement, it was taken from the police department pension fund? I think that said police department and all its staff, with their own personal wallets now a part of the equation, would then have a more vital interest in making sure misconduct didn't happen; and maybe good cops would chase bad ones out of the department, instead vice versa. Now some might call this "collective punishment"; I prefer to call it "incentive to professional excellence" and "motivation to perform with honesty and integrity".

  38. XSRocks says

    Police officers are generally represented by unions and the agreement that the union has with the municipality dictates how information of officer involved activity is published.

  39. says

    You are thinking too narrow about Law Enforcement/Judicial Privilege. I am a retired Peace Officer and I have a bit of a different opinion relative to this topic . . .

    When you train someone to be a professional, you would expect them to conduct their job as a professional and do so within the guidelines of the law. ( I know "guidelines" probably not the best word.) So, when a Cop or a Prosecutor, Judge, or any public employee has responsibility to follow the law and fails to do so, why is there no special enhancement to the penalty phase?

    Take for instance, a person convicted and sentenced to prison for a crime he did not commit because the Cop or the Prosecution suppressed evidence. Sooner or later the Court usually catches this on appeal (we hope), but how many years has the person convicted been the victim. Why are we not prosecuting those responsible for the conviction of the person? If a Cop or other Public Employee violates the law by DUI, why are they not given sentencing enhancements because they are a trusted government employee? If you as a citizen can be prosecuted for anything, a government employee doing the same offense, simply because by position he is expected to adhere to the law, should be required a special enhancement for violating that trust.

    I hope I made sense in this discussion. I am a bit tired this morning. Have a good day, I am going back for a few more hours with my head upon a pillow . . .

  40. Dan says

    The shooting may or may not be a crime, depending on the circumstances, but the burden should be on the cop to justify the shooting, just as it is on a non-LEO to justify a putative self-defense shooting. Lies in the report, if any, are a completely separate matter, though I suspect they're very rarely prosecuted when it's a LEO who's lying.

  41. Rev. Arthur Kirkland says

    So this is what a libertarian-leaning website for legal commentary looks like!

    Congratulations, Popehatter, for challenging the cop succors. This issue should not be set aside until qualified immunity is eliminated.

  42. 205guy says

    I totally agree with Paul Baxter's comment, I'm surprised no one else mentioned his points.

  43. says

    Kilroy asks "… replace [monopoly policing & prosecution] with what? That is where Clark and his kind always fail."

    "Always" you say, after not bothering to Google "privatized criminal enforcement" or the like.
    For your information, you will get millions of hits. Here's a selection to start:
    Creating a Competitive Market for Justice By Wes Alexander
    http://www.freelythinking.com/restit.htm

    The Private Enforcement of Law by William M. Landes, Richard A. Posner
    http://www.nber.org/papers/w62

    Or try A Century of Anarchy by Peter Earle (at Amazon)

    "Always" Ha!

  44. Terry says

    I think the important point you are failing to consider when differentiating between the nine people being charged with felonies for looting, and the police officer, is that the police officer has not been arrested, arraigned, and then remanded for a felony.
    .
    Unless it's your position that the police officer should have been arrested for the shooting (and therefore, by extension, every police officer in an officer involved shooting should be arrested), I don't think that the comparison is valid.
    .
    Statistically speaking, an officer is much more likely to be involved in a shooting than an ordinary citizen, particularly given that many citizens are unarmed, while all officers are. In addition, the presumption that a citizen involved in a shooting was up to something nefarious, while an officer on duty as a representative of the state was acting within the bounds of that duty, is a reasonable one.
    .
    This is not to argue that "the blue wall" doesn't exist – it manifestly does – or that police officers aren't capable of criminal acts, even while on duty – they certainly are. But it does argue for a difference in process for a representative of the state to be treated differently from a civilian (or an off duty officer – who I agree, when not in uniform, must be treated the same as a civilian).
    .
    I think the video releases on Travis County DA Rosemary Lehmberg's kicking the door, insisting that her friend the sheriff be contacted, and otherwise insisting on her position granting preferential treatment (which was not granted) strongly argue that, for the most part, the system works.

  45. jb says

    PonyAdvocate,
    The issue with taking money out of the police pension fund is that it would be an accounting nightmare, as all money is fungible and there are statutory protections for police retirement payouts. It is not the case that the police pension pays out X each year, the retired cops get (X/# of retirees) each, and if X is reduced due to a legal settlement then the retired cops get (x-settlement/# of retirees).

    Every year, the municipality determines, based on an actuary's report, how much they need to invest to cover future payouts and replenish the fund for the current year's payouts, and they invest that. That is a best-guess, not an ironclad amount, and they generally never actually contribute enough, so there are large future liabilities that will eventually come due and be a huge problem. If they were also paying legal settlements out of the same funds, they would find in future years the need to contribute more.

    The missing piece of your proposal is a structured reduction in police pension payouts, such that, as part of any award, the actuary would determine the amount that needs to be taken out of every police officer's current and future pension check to cover the payment, then the municipality would need to pass an ordinance making said changes, and if the actuary is wrong then the municipality will still need to cough up extra in future years to make the retired cops whole.

    Better yet, any cop responsible for actions related to a settlement of this type has their service time for pension calc purposes reduced to 0 effective the date of their actions. That will have a similar effect on the actuarial calculations–lower future payouts due to less total service time.

    Or, even better, convert police retirement accounts to defined-contribution (401k style) rather than defined-benefit (pension style), and eliminate whatever immunity stops plaintiffs from going after the individual cop's personal assets.

  46. markm says

    @Rich Brunelle:

    When you train someone to be a professional, you would expect them to conduct their job as a professional and do so within the guidelines of the law. ( I know "guidelines" probably not the best word.) So, when a Cop or a Prosecutor, Judge, or any public employee has responsibility to follow the law and fails to do so, why is there no special enhancement to the penalty phase?

    Because any legislator who proposed adding this special enhancement would be the target of a police union campaign in the next election, spending immense amounts to paint him as anti-cop and "soft on crime". Where are the organizations campaigning against prosecutors, judges, and other politicians that are actually soft on crime by the cops?

    Why are we not prosecuting those responsible for…

    Prosecuted by whom? Expecting a DA to prosecute the cops he works with is like dispensing with the referee in a football game and expecting the players to call fouls on their own teammates. What is needed is a right for private citizens to prosecute public officials.

  47. Dan Weber says

    but the burden should be on the cop to justify the shooting, just as it is on a non-LEO to justify a putative self-defense shooting

    As a point of law, self-defense is generally not an affirmative defense. I used to think so, too, and said so confidently on the Internet, but I got corrected on this during the Zimmerman trial. (There was a post here on Popehat about that, I think by Patrick.) I believe Ohio is the only state where self-defense is an affirmative defense, but IANAL, and especially not in Ohio.

  48. Doug says

    The reason the Officer's name was withheld was primarily for safety reasons…the subsequent events in Furgeson have proven the wisdom in that decision. Secondarily, in this instance the presumption is that the Officer is a victim of violence from an alleged violent felon and therefore deserves the same victim advocacy rights as any other crime victim. The statements and video of the store robbery that occurred 16 minutes before the shooting is convincing circumstantial evidence that demand further investigation before condemnation occurs.

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