Tagged: Criminal Justice

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Two Stories About The Criminal Justice System And Consequences

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Dateline, Washington D.C.: The Drug Enforcement Administration, pressed by Congress for answers about its treatment of Andrew Chong, has no answers to give.

I wrote about Andrew Chong before. He's the young man the DEA arrested in San Diego when they caught him smoking dope at a friend's house during a raid. DEA agents handcuffed him, locked him into a room, and left him there five days without food or water. He drank his own urine, eventually attempted suicide, and was close to death when he was discovered. He suffers from post traumatic stress disorder, not surprisingly. DEA agents claimed that he was left there through an oversight and that nobody could hear him shouting for help. An investigation determined that you could very clearly hear someone shouting for help from that room.

The consequences? Four written reprimands, a five-day suspension, and a seven-day suspension.

If I seize someone, handcuff them, lock them in a room, and leave them to die, I will suffer severe consequences. I will lose my job, especially if I acted while performing my duties. I will go to jail. I will suffer catastrophic personal financial losses. My name will be broadcast far and wide.

That's the difference between me and a federal employee.

The DEA agents who arrested Andrew Chong for smoking dope and left him to die got reprimands or suspensions that were shorter than my last tension headache. You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not. They are not named in any of the articles about the incident. They will not go to jail. They will not lose their jobs.

Free of significant consequence, they will continue to exercise their armed authority to inflict consequences on other people who break the law.

Dateline, Texas:

In 2013, Judge Susan Criss presided over the trial of Alisha Marie Drake, who stood accused of the horrific crime of videotaping the rape of a 14-month-old child. During jury selection, a Jehovah's Witness in the jury pool told Judge Criss that he would not view child pornography and that his religion did not allow him to judge others (an issue familiar to anyone who has ever encountered a Jehovah's Witness in a jury pool). Judge Criss berated the juror and belittled his religious beliefs:

So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.

Eventually Judge Criss ordered the prospective juror arrested:

Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be – –

The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.

Juror No. 48: Okay. Then – –

The Court: Have a seat, sir.

Juror No. 48: I guess they have to visit me.

The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.

Judge Criss later explained to the thoroughly cowed jury pool that her experience as a sex crimes prosecutor — which she related in detail — taught her it was difficult to find willing jurors in sex crimes cases, and that she would not be excusing people. "And I'm not playing, and I don't care if anybody likes it or not."

Yesterday the Court of Appeals overturned the conviction. Even though Drake's appointed attorney did not bother to object to Judge Criss' actions, the court found that her comments about the case improperly conveyed her opinion of Drake's guilt, and that her arrest of the prospective juror deprived Drake of an impartial jury by intimidating jurors from confessing possible biases.

But the public opinion by the Court of Appeals did not name Judge Susan Criss. That's a matter of tradition and professional courtesy. You'd have to figure out her name by Googling the case, or by getting it from court records or from someone who knows.

Susan Criss is now in private practice, although she enjoys a public life commenting on her past cases. Criss is defiant about her actions in the Drake case. She won't face any State Bar proceeding. She won't face any consequences at all for her conduct.

These stories are not the exception. They are the rule. The rule is this: citizens generally face consequences for breaking the law and violating the rights of others, but those with the power to administer those laws and impose those consequences rarely face any themselves.

That's the justice system.

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DEA Orchestrates Disinformation Campaign To Conceal Surveillance Powers

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In Neal Stephenson's brilliant Cryptonomicon, a protagonist works for a shadowy Allied unit called "Detachment 2702." Detachment 2702 creates elaborate fake evidence to offer explanations of how the Allies learned of German movements, thus concealing that the Allies had cracked the Enigma code. Though fictional, the Detachment is based on actual World War II tactics. The Allies did things like send spotter planes to places they knew German ships would be to fortuitously "spot" them, and reportedly sent a fake radio message of congratulations to a non-existent spy to suggest a source for other intelligence.

You expect the government to use secret surveillance and disinformation campaigns against a wartime enemy. You probably don't expect the government to use secret surveillance and disinformation campaigns in court against its own citizens.

You should.

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Nobody, Including Tom Cotton, Knows What Tom Cotton Is Saying About "Corruption of the Blood"

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Senator Tom Cotton (R-AR) is in the news this month. For reasons that passeth understanding he's been offered up as a spokesperson for the 47 Republicans who wrote a letter to Iran.1 Today I noticed a number of links to 2013 reports asserting that Sen. Tom Cotton offered an amendment to a bill that would allow imprisonment without due process of the relatives of the targets or Iranian sanctions. The Huffington Post's Zach Carter may be Patient Zero on this idea:

WASHINGTON — Rep. Tom Cotton (R-Ark.) on Wednesday offered legislative language that would "automatically" punish family members of people who violate U.S. sanctions against Iran, levying sentences of up to 20 years in prison.

. . .

Article III of the Constitution explicitly bans Congress from punishing treason based on "corruption of blood" — meaning that relatives of those convicted of treason cannot be punished based only on a familial tie.

That story is getting more play this week because of the controversy over the Republicans' Iran letter, and the phrase "corruption of the blood" is on many a lip.

The proposed language, as described, struck me as an unusual thing for a Senator to do, even if the Senator graduated from Harvard Law School and therefore is not entirely responsible for his actions. Is this real? Or is this another case of journalistic malpractice on legal matters?2

The answer appears to be that nobody in this story understands what's being talked about.

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39

Darren Wilson and the Benefit of Doubt

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The United States Department of Justice has released a prosecution memo explaining how it decided not to bring federal charges against Ferguson Police Department Officer Darren Wilson for shooting Michael Brown.

The report is 86 pages long, with 28 footnotes. The report's summary of relevant federal law — what charges are available, what it would have to prove to convict Officer Wilson, and the landscape of use-of-force law — appears correct. I can't evaluate whether the Department has misrepresented what witnesses said or the circumstances of their statements, but the report's evaluation of the credibility of witnesses is convincing: it is based on inconsistencies in statements, inconsistencies with scientific analysis of physical evidence, and other factors that I would use as a defense attorney to attack a prosecution witness. The Department's conclusion that it can't prove guilt beyond a reasonable doubt is likely correct. Its conclusion that there is no credible evidence supporting prosecution, because there is no credible evidence contradicting Officer Wilson's account, is arguable.

Were I still a federal prosecutor, I wouldn't recommend prosecuting the case, and were I Wilson's defense lawyer, I would like my chances much better than the prosecution's chances. I don't disagree with the factual or legal analysis. But I find it remarkable, both as a former prosecutor and as someone who has practiced criminal defense for 15 years.

I find it remarkable because most potential prosecutions don't get this sort of analysis. Most investigations don't involve rigorous examination of the credibility of the prosecution's witnesses. Most investigations don't involve painstaking consideration of the defendant's potential defenses. Often investigators don't even talk to potential defense witnesses, and if they do, don't follow up on leads they offer. Most investigations don't carefully weigh potentially incriminating and potentially exculpatory scientific evidence. If an explanation of the flaws in a case requires footnotes, you shouldn't expect it to deter prosecution.

Instead, I'm more used to the prosecution assuming their witnesses are truthful, even if they are proven liars. I'm more used to contrary evidence being cynically disregarded. I'm more used to participants in the system stubbornly presuming guilt to the bitter end. I'm more used to prosecutors disregarding potentially exculpatory evidence that they think isn't "material." I'm more used to the criminal justice system ignoring exculpatory science and clinging to inculpatory junk science like an anti-vaxxer.

Why is this case different? It's different because Darren Wilson is a cop. Cops get special rights and privileges and breaks the rest of us don't. Cops get an extremely generous and lenient benefit of the doubt from juries. Nearly every segment of the criminal justice system operates to treat cops more favorably than the rest of us.

The Department of Justice report didn't say "we can't prove this beyond a reasonable doubt, particularly because juries defer to cops." It didn't need to. It's understood. The Department of Justice also didn't have to worry about being called out for inconsistent approaches to other reports. That's because when you're a black guy who shoots a white law enforcement officer in self-defense, they don't write an 86-page memo with 28 footnotes about it. They just prosecute you.

It's not unjust that Darren Wilson gets the benefit of the doubt. It's unjust that nearly everyone else doesn't.

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A Few Comments on the David Petraeus Plea Deal: What Money And Connections Buy You

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David Petraeus, who suffered a fall worthy of a Greek tragedy when was caught leaking classified information to his biographer-girlfriend, has reached a plea deal with the feds, in the person of the U.S. Attorney's Office for the Western District of North Carolina.

As of now two documents are available online. There's the Information, which is the charging document the feds use when grand jury indictment is not required or when the defendant waives that right. There's also the factual basis — the narrative of facts to which Petraeus will admit. These documents reveal that Petraeus has agreed, in advance of charges being filed, to take a misdemeanor.

Generally, poor people react and rich people are proactive. Petraeus is sophisticated and has assets; he could afford to hire lawyers to negotiate with the feds before they charged him. As a result, he was able to secure a pretty good outcome that controlled his risks. The feds let him plead, pre-indictment, to a misdemeanor charge of improper removal and retention of classified documents under 18 USC section 1924. That means even if the federal judge who sentences him goes on a rampage, he can't get more than a year in federal prison — and, given that it's a misdemeanor, will very likely get far less. The Factual Basis includes a United States Sentencing Guideline calculation in which the government and Petraeus agree he winds up at an Adjusted Offense Level of 8, which means the judge can give him straight probation.

It is very difficult to get a misdemeanor out of the feds.

Petraeus' factual basis reveals that he could have been charged with much, much worse. The statement discusses his "Black Books" containing his schedules and notes during his command in Afghanistan; those books contained "national defense information, including Top Secret/SCI code word information." (Factual Basis at paragraphs 17-18.) Petraeus, after acknowledging that "there's code word stuff in there," gave the Black Books to his biographer/girlfriend at her private residence. "The DC Private Residence was not approved for the storage of classified information," the statement notes dryly. (Factual Basis at paragraphs 22-25.) He retrieved the Black Books a few days later after she had been able to examine them, and retained them. Thereafter, when he resigned from the CIA, he signed a certification that he had no classified material in his possession, even though he had the Black Books. (Factual Basis at paragraph 27.) Later, when Petraeus consented to interviews with FBI agents3 he lied to them and told them that he had never provided classified information to his biographer/girlfriend. (Factual Basis at paragraph 32.)

To federal prosecutors, that last paragraph of facts is like "Free Handjob And iPad Day" at Walt Disney World. First, you've got the repeated false statements to the government, each of which is going to generate its own charge under 18 U.S.C. 1001, which makes it illegal for you to lie to your government no matter how much your government lies to you. Then you've got the deliberate leaking of top secret/code word defense data to a biographer. An aggressive prosecutor might charge a felony under 18 U.S.C. section 793 (covering willful disclosure of national defense information) or 18 U.S.C. section 798 (covering disclosure of classified communications intelligence materials or information derived therefrom), both of which have ten-year maximum penalties. Those charges don't seem to require any intent to harm the U.S. — only disclosure of information which could harm the U.S. if distributed. Other than that? You better believe there would be a conspiracy count for Petraeus' interaction with his girlfriend.

If Petraeus were some no-name sad-sack with an underwater mortgage and no connections and no assets to hire lawyers pre-indictment, he'd almost certainly get charged a lot more aggressively than he has been. This administration has been extremely vigorous in prosecuting leakers and threatening the press.

So why is Petraeus getting off with a misdemeanor and a probable probationary sentence? Two reasons: money and power. Money lets you hire attorneys to negotiate with the feds pre-charge, to get the optimal result. Power — whether in the form of actual authority or connections to people with authority — gets you special consideration and the soft, furry side of prosecutorial discretion.

This is colloquially known as justice.

Edited to add: Since I wrote this the actual plea agreement has become available. The most notable part:

8. The United States agrees not to oppose the defendant's request that the defendant receive a non-custodial sentence.

9. The parties jointly recommend the imposition of a two-year term of probation.

So, for those of your keeping score at home: Commander of U.S. Forces in a war zone provides classified documents to his biographer/lover? Misdo, two years probation. 25-year-old small-time musician sells half a pound of pot while carrying a gun? 55 years in federal prison.

Broken Windows And Broken Lives

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The Broken Windows Theory led to an era of aggressive policing of petty offenses — which in turn led to increased confrontation between police and civilians.

The theory depends upon the proposition that tolerating bad conduct, however petty, sets social norms, and that bad conduct steadily escalates to meet those norms.

Second, at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence. Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.

Let's take this as true for a moment.

If tolerating broken windows leads to more broken windows and escalating crime, what impact does tolerating police misconduct have?

Under the Broken Windows Theory, what impact could it have but to signal to all police that scorn for rights, unjustified violence, and discrimination are acceptable norms? Under Broken Windows Theory, what could be the result but more scorn, more violence, and more discrimination?

Apparently we've decided that we won't tolerate broken windows any more. But we haven't found the fortitude to do something about broken people. To put it plainly: just as neighborhood thugs could once break windows with impunity, police officers can generally kill with impunity. They can shoot unarmed men and lie about it. They can roll up and execute a child with a toy as casually as one might in Grand Theft Auto. They can bumble around opening doors with their gun hand and kill bystanders, like a character in a dark farce, with little fear of serious consequences. They can choke you to death for getting a little mouthy about selling loose cigarettes. They can shoot you because they aren't clear on who the bad guy is, and they can shoot you because they're terrible shots, and they can shoot you because they saw something that might be a weapon in your hand — something that can be, frankly, any fucking thing at all, including nothing.

What are we doing about this? Are we pushing back against unwarranted uses of force and deprivations of rights, to prevent them from becoming self-perpetuating norms?

No. We're not pursuing the breakers of windows. If anything, we are permitting the system steadily to entrench their protected right to act that way. We give them second and third and fourth chances. We pretend that they have supernatural powers of crime detection even when science shows that's bullshit. We fight desperately to support their word even when they are proven liars. We sneer that "criminals have too many rights," then give the armed representatives of our government stunning levels of procedural protections when they abuse or even kill us.

Do we really believe in Broken Windows Theory? If we do, how can we be surprised at more casual law enforcement racism, more Americans dead at the hands of police, more matter-of-fact violations of our constitutional rights? We left the windows broken. We helped set the norm. They're just following it.

Is Rapper Brandon "Tiny Doo" Duncan Being Prosecuted For Rapping About Gangs?

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Two things are clear: Brandon Duncan raps under the name "Tiny Doo," and he's being prosecuted for participation in the Lincoln Park street gang in San Diego.

After that, things get a little cloudy. But it appears that the San Diego County District Attorney's Office is prosecuting Duncan on the theory that a gang's activity made his rap music more popular, and that he therefore benefitted from gang activity. That poses some First Amendment problems.

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Dinesh D'Souza's Sentence Isn't Remarkable

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Recently I wrote about political pundit Dinesh D'Souza's selective prosecution claim and about the support for him at sentencing. Today a federal judge sentenced him to five years probation, eight months of that in a community confinement center, community service, and "therapeutic counseling."

A few comments:

1. The sentence isn't remarkable at all. Both sides agreed on the sentencing range under the United States Sentencing Guidelines. Though the recommended sentence under those guidelines was 10-16 months, the judge had discretion to go lower or higher. Probation with a term of home detention or "community confinement" is a very common approach to a nonviolent first offender with a low guideline range. For a 53-year-old with no record, this is roughly in the middle of the array results I would expect. In a case like this I would have shot for probation conditioned on home confinement but told the client that a short term in custody or a term in "community confinement" was a strong possibility. You may see it as unreasonably lenient or hash, but federal criminal practitioners won't.

2. A "community confinement center" sounds Orwellian, but it's just a halfway house. It's like a halfway house used for recovering addicts. Imagine a slightly dingy and run-down house in a not-quite-good neighborhood, with a group of people and someone on staff usually there. Being in a halfway house means that for eight months D'Souza will have to sleep there, but will be allowed to leave to go to work, church, and the doctor, or to other activities permitted by the house supervisors.

3. "Therapeutic counseling" sounds Orwellian but isn't. The BOP doesn't have people to counsel you on politics. Counseling as a condition of probation is typical. Available counseling includes drug, alcohol, marital, parenting, anger management, psychological, and so forth. I don't know what particular element of D'Souza's background resulted in the counseling condition, but there's absolutely no basis to jump to the conclusion that it's meant to reeducate him.

Remember: usually you can't rely on media reports of criminal justice events.

Texas Court Makes Upskirts Mandatory, Outlaws Kittens, Hates Your Mother

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Surely you've heard about this. A Texas court — full of old men, reeking of misogyny — has ruled that taking upskirt photos of unwilling women is free speech protected by the First Amendment!

How ridiculous! How despicable!

I mean, at least — that's what I think happened, based on how the story has been reported and talked about.

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Patrick McLaw, Skepticism, And Law Enfocement's Obliging Stenographers

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Imagine a local news channel in a small city. The channel starts running stories fed to it by criminals, thugs, and n'er-do-wells. The stories are uncritical and unquestioning. "Local methamphetamine dealers report that their product is more reasonably priced and safer than ever," goes one report. "Consent: is it an unfairly ambiguous concept?" goes another. "A career burglar explains why alarms are a bad investment," goes the third.

Seems ridiculous, like something out of The Onion, doesn't it? Yet we endure the equivalent all the time — news stories that are indistinguishable from press releases written by law enforcement or government.

Take the story of Patrick McLaw or Maryland. Several writers are posing troubling questions about whether McLaw was suspended from his teaching job, subjected to some sort of involuntary mental health examination, and his home searched based on the fact that he wrote science fiction novels set in 2902 under a pen name. Jeffrey Goldberg explains:

A 23-year-old teacher at a Cambridge, Maryland, middle school has been placed on leave and—in the words of a local news report—"taken in for an emergency medical evaluation" for publishing, under a pseudonym, a novel about a school shooting. The novelist, Patrick McLaw, an eighth-grade language-arts teacher at the Mace's Lane Middle School, was placed on leave by the Dorchester County Board of Education, and is being investigated by the Dorchester County Sheriff's Office, according to news reports from Maryland's Eastern Shore. The novel, by the way, is set 900 years in the future.

Though I am generally receptive to believing the worst about law enforcement and local government, I was skeptical when numerous people emailed asking me to write about this. I suspected that more than two books were at issue. Subsequent reporting suggests that McLaw may have sent a letter that was the trigger of a "mental health investigation":

Concerns about McLaw were raised after he sent a four-page letter to officials in Dorchester County. Those concerns brought together authorities from multiple jurisdictions, including health authorities.

McLaw's attorney, David Moore, tells The Times that his client was taken in for a mental health evaluation. "He is receiving treatment," Moore said.

Because of HIPPA regulations mandating privacy around healthcare issues, he was unable to say whether McLaw has been released.

McLaw's letter was of primary concern to healthcare officials, Maciarello says. It, combined with complaints of alleged harassment and an alleged possible crime from various jurisdictions led to his suspension. Maciarello cautions that these allegations are still being investigated; authorities, he says, "proceeded with great restraint."

What's more, he told The Times, "everyone knew about the book in 2012."

We need more facts before we draw firm conclusions, but for the moment, I think there is reason to believe that the story may be more complicated than the provocative "authorities overreact to citizen's fiction writing" take.

But it is not at all surprising that people would leap to that conclusion. Two factors encourage it.

The first factor is law enforcement and government overreach. When schools call the police when a student writes a story about shooting a dinosaur, and when law enforcement uses the mechanism of the criminal justice system to attack satirical cartoons or Twitter parodies, it is perfectly plausible that a school district and local cops would overreact to science fiction.

The second factor is very bad journalism. The Patrick McLaw story blowing up over the long weekend can be traced to terrible reporting by WBOC journalist Tyler Butler in a post that was linked and copied across the internet. Butler reported McLaw's pen name as a sinister alias, reported as shocking the fact that McLaw wrote science fiction about a futuristic school shooting, and quoted law enforcement and school officials uncritically and without challenge. Faced with the bare bones of the story, any competent reporter would have asked questions: is this only about the two books he wrote? Was there a basis, other than fiction, to think he posed a threat? Are there any other factors that resulted in this suspension and "mental health examination?" Was the examination voluntary or involuntary? Is it reasonable to suspend and "examine" someone and search their home over science fiction?

Even if authorities refused to answer those questions, a competent reporter would discuss them. "Authorities declined to say whether any factors other than the two books led to the investigation," Tyler Butler might have written. Asking the questions and reporting on them might have restrained our temptation to believe the worst. Instead he gave us this:

Those books are what caught the attention of police and school board officials in Dorchester County. "The Insurrectionist" is about two school shootings set in the future, the largest in the country's history.

Journalists ought to ask tough questions of government and law enforcement, to present us with the facts we need to evaluate their actions. But too often they don't. Too often journalists run with law enforcement "leaks" without considering how the leaks impact the rights of the suspects, or asking why the government is leaking in the first place. Too often journalists allow themselves to be manipulated by law enforcement, not recognizing the manipulation as the important part of the story. To often journalists accept the headline-grabbing take rather than the less scandalous but more correct take. Too often journalists buy access with the coin of deference. Too often journalists report the law enforcement spin as fact.

That's why when a local news channel reports matter-of-factly that a man was detained and "examined" over science fiction, it doesn't occur to us to question the story. Just as it's entirely plausible that the government might do it, it's entirely plausible that journalists might report it without criticism, analysis, or apparent consciousness of how outrageous it would be.

Sunil Dutta Tells It Like It Is About American Policing

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Sunil Dutta, a "professor of homeland security" at Colorado Tech University, was an LAPD cop for 17 years. Today, the Washington Post ran his column explaining how citizens should interact with the police.

First, Dutta talks about the challenges cops face from rude civilians:

Working the street, I can’t even count how many times I withstood curses, screaming tantrums, aggressive and menacing encroachments on my safety zone, and outright challenges to my authority. In the vast majority of such encounters, I was able to peacefully resolve the situation without using force. Cops deploy their training and their intuition creatively, and I wielded every trick in my arsenal, including verbal judo, humor, warnings and ostentatious displays of the lethal (and nonlethal) hardware resting in my duty belt. One time, for instance, my partner and I faced a belligerent man who had doused his car with gallons of gas and was about to create a firebomb at a busy mall filled with holiday shoppers. The potential for serious harm to the bystanders would have justified deadly force. Instead, I distracted him with a hook about his family and loved ones, and he disengaged without hurting anyone. Every day cops show similar restraint and resolve incidents that could easily end up in serious injuries or worse.

Note how Dutta unsubtly conflates genuinely dangerous things — like threatening to set off a gas bomb — with curses, "tantrums," and "outright challenges to my authority." This sleight-of-hand miscategorization is how cops convince us they need the power to order us to refrain from gathering in one place to protest or put away that menacing cell phone or stop being developmentally disabled around them. See, cops know what is dangerous, and if you say they shouldn't be able to tell you not to do whatever they say is dangerous, you're really saying you should be allowed to set off gasoline bombs at the mall.

We are still learning what transpired between Officer Darren Wilson and Brown, but in most cases it’s less ambiguous — and officers are rarely at fault. When they use force, they are defending their, or the public’s, safety.

"Rarely" is an empirical term; Dutta does not cite evidence. Certainly cops are very rarely deemed responsible by the justice system for use of force. But a rather rather large number of people are killed by police every year; we don't know exactly how many, and we have no reliable resource to test law enforcement asserts that the killings are justified. Never mind lesser violence, like tasing and pepper spraying people, or things not classified as uses of force, like forcible torture and rape of suspects under the guise of "investigation," or situations where police got innocent people killed through idiocy.

But this is Dutta's main 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. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

Note now nicely this dovetails with Dutta's first point. First, Dutta gets to decide what is dangerous and what he can order you to cease doing. Because gas bombs! Second, if you keep doing it, that's a tasing. Or a beating. Or a shooting.

Dutta's message is this: a cop can always tell you what to do, and you have to take it, or else. (The "else" is violence.)

We have a justice system in which you are presumed innocent; if a cop can do his or her job unmolested, that system can run its course. Later, you can ask for a supervisor, lodge a complaint or contact civil rights organizations if you believe your rights were violated. Feel free to sue the police! Just don’t challenge a cop during a stop.

This is either blissfully naive or breathtakingly dishonest. Do we have a justice system? By name, yes. Is it effective in deterring cops from abusing citizens or punishing them when they do? No. If you go and ask that supervisor to lodge a complaint, better have a lawyer's phone number, because you may get threatened and harassed. If you hope the cop will be charged criminally for misbehavior, you're going to be waiting a very long time for no result. When it comes to breaking the law, the system treats you one way and cops another.

But Dutta's rationales are mere window dressing. His core message is this:

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.

The outrageous thing is not that he says it. The outrageous thing is that we accept it.

Would we accept "if you don't want to get shot, just do what the EPA regulator tells you"? Would we yield to "if you don't want your kid tased, do what the Deputy Superintendent of Education tells you"? Would we accept "if you don't want to get tear gassed, just do what your Congressman tells you?" No. Our culture of individualism and liberty would not permit it. Yet somehow, through generations of law-and-order rhetoric and near-deification of law enforcement, we have convinced ourselves that cops are different, and that it is perfectly acceptable for them to be able to order us about, at their discretion, on pain of violence.

It's not acceptable. It is servile and grotesque.

Lawsplainer: How Mike Brown's Alleged Robbery Of A Liquor Store Matters, And How It Doesn't

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Last Friday, as the killing of Mike Brown continued to roil Ferguson, Missouri, the Ferguson Police Department released a police report and surveillance video showing a young man shoving a protesting convenience store clerk and leaving with merchandise. Mike Brown's family lawyer confirmed that the video showed Brown, but decried its release as an irrelevant smear. Later Ferguson's police chief later admitted that officer Darren Wilson did not seek to detain Brown based on the robbery, but because Brown was walking in the street.

Would the alleged robbery4 matter, in any case brought against Darren Wilson for the death of Mike Brown?

It might matter legally, but only for narrow reasons. It does matter practically, but shouldn't.

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