Thanks to a misbegotten ruling from a divided Ninth Circuit Court of Appeals, police in nine states have been left at an insurmountable disadvantage when dealing with criminal suspects. At least, that?s what we?re told in a legal brief submitted to the Supreme Court by a coalition of police unions. ?It won?t be long before the word spreads through society?s criminal underworld that the Ninth Circuit hasn?t simply given them a `get out of jail free? card, but a `never have to go to jail in the first place? card,? warns the amicus brief. Rather than subduing criminals, ?police officers will now be forced to walk away from people they have arrested.?
The ruling that is fraught with such awful implications, Brooks v. City of Seattle, involved a patently unnecessary Taser attack upon a woman who was seven months pregnant. The unarmed woman, who was not suspected of a violent crime, posed no threat to the three ? yes, three ? valiant officers who assaulted her. She was uncooperative, but did not offer any violent resistance.
Her sole ?offense? was to refuse a demand that she sign a traffic ticket that was eventually dismissed.
In March 2010, the Ninth Circuit Court found that Seattle Police Officers Steven Daman, Juan Ornelas, and Donald Jones used excessive force when they committed their attack on Brooks and her unborn child ? but that they were entitled to ?qualified immunity? because the legal precedents dealing with the use of electro-shock torture on a pregnant woman were ambiguous in 2004.
The assailants were thus left in the clear -- but unsatisfied with their victory. With the support of organizations representing tens of thousands of police officers (including some 30,000 SWAT operators), the officers are appealing that ruling to the Supreme Court, claiming that any limitation on the discretionary use of tasers against non-violent ?suspects? constitutes an unacceptable restraint on police discretion and a dire threat to that holiest of social considerations, ?officer safety.?
In its brief on behalf of the officers, the Los Angeles County Police Chiefs Association (LACPCA) and the National Tactical Officers Association (NTOA) insist that refusing to allow police to use electro-shock torture against a pregnant woman would fatally undermine the principle of ?pain compliance? on which social order ? as they pretend to understand it ? depends.
On November 23, 2004, Malaika Brooks was taking her son to school when she was stopped by Officer Ornelas, who claimed ? wrongly, as it turned out ? that she had been speeding. When he presented Brooks with a traffic ticket, she refused to sign it out of the concern that doing so would constitute an admission of guilt. She had done the same during a 1996 traffic stop in which the officer, who possessed some residual decency, simply handed her the little extortion note and walked away.
Ornelas, unfortunately, chose to escalate the encounter by calling for ?backup.? A few minutes later, Officer Jones and Sgt. Daman arrived on the scene and began to threaten and berate Brooks. None of this was necessary: The officers were engaging in a tribal display of primate dominance, rather than carrying out a function related in any way to protection of person and property. When they threatened to kidnap ? or, as they called it, ?arrest? ? Brooks, the woman informed them that she was ?less than 60 days from having my baby.?
After huddling briefly, the three officers attacked Brooks. Ornelas seized her right arm and -- in the course of less than a minute ? inflicted three ?drive stun? charges to Brooks?s neck, shoulder, and thigh, an assault that left her with permanent scars. The three officers then dragged Brooks ? who had been desperately clinging to the steering wheel, honking the horn, and screaming for help ? from the car, threw her face-down and pinned her to the ground. She was handcuffed and then booked on charges of ?Refusing to sign? a traffic citation ? a misdemeanor ? and resisting arrest.
A jury eventually found Brooks guilty of the first ?offense,? and acquitted her of the second. The speeding citation was thrown out before Brooks went to court. Brooks filed suit against the officers for assault and violating her civil rights. The officers responded by invoking the well-established ? and utterly specious ? doctrine of ?qualified immunity,? seeking a summary dismissal. The District Court dismissed the assault charge but found that the officers had committed a civil rights violation that nullified their claim to qualified immunity.
The Ninth Circuit reversed that holding as it applied to the defendants, ruling that the officers were protected by qualified immunity and could not be sued by Brooks. However, the Court offered notice that in the future similar taser attacks on non-cooperative but non-violent subjects would constitute excessive force.
In his dissent, Judge Alex Kozinski maintained that Brooks ?had shown herself deaf to reason, and moderate physical force had only led to further entrenchment?. Brooks was tying up two line officers, a sergeant and three police vehicles ? resources diverted from other community functions ? to deal with one lousy traffic ticket.?
Who was responsible for this ?diversion? ? Mrs. Brooks, who was merely being uncooperative, or Officer Ornelas and his comrades, who needlessly escalated a disagreement over ?one lousy traffic ticket? to the point where potentially deadly force was used against someone accused of a trivial traffic offense, rather than an actual crime?
?The officers couldn?t just walk away,? complains Kozinski. ?Brooks was under arrest.?
There was no substantive reason why the police couldn?t walk away ? if they had been acting as peace officers, that is, rather than as armed enforcers of the revenue-consuming class.
If a police officer has the option of deploying a reliably deadly weapon in a situation of this kind, he also has the option of backing down and letting the court deal with the merits of the citation. But the position claimed by the officers ? and accepted, in a qualified sense, by the Ninth Circuit Court ? is that anything other than immediate and unqualified submission by a Mundane justifies the infliction of summary punishment by a police officer.
The amicus brief by the LACPCA and NTOA lament that the Ninth Circuit Court, while upholding the unqualified ?authority? of police to arrest people at their discretion, ?has deprived officers of any lawful way of enforcing that authority, at least when the suspect is not engaged in violence directed towards the officers? and has ?unnecessarily limited the amount of force that can be used against a suspect who refrains from using violence against the police? (emphasis added).
What the police unions who filed that brief are demanding is an open-ended grant of unlimited ?authority? to use ?pain compliance? against people who passively resist abduction by police. The question of using violent means to subdue a violent criminal suspect is not implicated in any way by this case.
In their petition for certiorari, the officers ? whose actions, remember, were upheld by the Ninth Circuit Court ? complain that the ruling could ?prohibit the use of any low-level physical force against an actually resisting suspect who does not present an imminent threat of harm to the officers, a result that could strip law enforcement of any reasonable and practical means of enforcing the law.?
To which a person whose mind is not hostage to totalitarian assumptions would reply: ?And the problem with this is???
In a reasonably free society, police (actually, peace officers) would not presume to "enforce" the law; they would track down and arrest people plausibly suspected of committing crimes against person and property. They would not be permitted to violate the unconditional law of non-aggression by initiating force, or issue what they assume to be ?lawful orders? to people who are not suspected of actual crimes. They certainly would not be permitted to employ ?pain compliance? in any situation that didn?t involve legitimate defense against an actual aggressor.
Remarkably, in their amicus brief the officers who committed what should be prosecuted as a felonious assault on Brooks asserted that ?it is well established that police officers need not use the least amount of force in effecting an arrest.?
Once again, we?re invited to believe that there would be apocalyptic consequences if police were inhibited in the use of disproportionate force to compel non-violent ?suspects? to submit to their supposed authority.
Under the standard prescribed in the amicus briefs filed on behalf of the officers who assaulted Brooks, it?s difficult to find fault with the actions of Beaumont, California Police Officer Enoch Clark.
On February 21, Clark stopped a woman named Monique Hernandez on suspicion of DUI. When Clark tried to handcuff her, Hernandez resisted. Clark?s preferred method of ?pain compliance? was a JPX device ? a weapon that employs a gunpowder charge to fire a stream of pepper spray at roughly 400 miles an hour.
The JPX weapon is designed for use against armed assailants at a distance of 6 to 15 feet. Its payload of weaponized OC spray is propelled over that distance at less than three one-hundredths of a second, making it (in the words of the company?s promotional literature) ?too fast to avoid?. The effect is immediate; there is no chance to resist.?
Clark ? a veteran officer and chairman of the local police officers union -- fired his JPX gun into Hernandez?s right temple at a distance of roughly ten inches. The impact shattered the woman?s right eye and inflicted irreparable damage to her left eye as well.
The officer has been indicted on four felony charges. His attorney insists that the officer?s attack was justified in order ?to gain compliance and in defense of his person.? If the claims made by and on behalf of the officers who assaulted Mailaka Brooks are sound ? if police officers are not legally required to use minimal force when dealing with non-violent ?suspects? ? it?s difficult to see how Clark?s actions were improper, even though they resulted in Monique Rodriguez being permanently blinded.
?It was Brooks?s recalcitrance and resistance that prompted her treatment,? sniffs the officers? petition for certiorari. ?Under both state and federal law she did not have a right to resist her arrest,? which purportedly means that the officers were permitted ? nay, required ? to employ ?pain compliance? techniques against her until she submitted.
Wouldn?t the same principle apply to the actions of Enoch Clark in dealing with the equally recalcitrant Monique Hernandez? His police union attorney certainly thinks so. And let us not forget that any effort to inhibit the police in their sacred mission to impose order would constitute an existential threat to our society.
Deny an intrepid hero in body armor the option of tasing a pregnant woman ? or kicking her in the stomach hard enough to cause the near-term infant to defecate in the womb ? a reign of terror will ensue, with the ?criminal underworld? arising to devour us all.
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William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.
