This is, I solemnly swear, an unretouched (aside from cropping) screen cap from the video in this diary of UC Davis Lt. John Pike showering protesters with pepper spray at the recent Occupy rally there. I did not modify the color, shift anything around, or anything of the sort.
What you see at the bottom of that golden shower of spray is protesters heads. I think that the imagery speaks for itself.
Now that I have your attention, I want to talk about some general issues of interaction with law enforcement, because I see a lot of people getting them wrong.
Beyond that, I see a lot of people making reasonable assertions without seeming to realize that "being right" is not the only consideration. The question will be: did the police act unreasonably under conditions in which they are allowed to believe exist.
Police can go beyond their bounds even given every benefit of every doubt, but it's expensive and risky to pursue. The late lamented Ben Masel was great and pursuing cases against the cops -- but few people are in his league. (I'm not -- despite that I'm an attorney and he was not. I don't think that even many attorneys were in his league. He was that good.)
So, unless you are the second coming of Ben Masel, whose name as written here means "Son of Luck" -- and if you are, please post your own diary on these events, because we feel his absence now more than ever -- it's worth knowing what cops can and cannot do, and what you legally can and cannot do, when it comes to demonstrations and occupations.
I'm only going to be able to write about general principles (aka "this is not legal advice") because the specifics may differ by state and locality. But I'm going to try to focus on what I understand to be common rules of the road. I intend this to be a supplement to Steven D's post on the rights under federal law of victims of pepper spray -- except what I'm discussing comes a bit earlier in the drama.
If you want a good example of what looks like "abuse of force under color of law," so far as I can tell from the video, you need look no further than what was described yesterday in Robyn Severn's post on a transgender woman who reports having been shocked by a taser shot to the genitals.
It will surprise no one here that what was reported to have happened here is Not OK. But it became "not OK" -- in the "abuse of force" sense, not in the "slimebag being rotten to transwoman out of bigotry and addressing her as male once finding out her initial official gender" sense -- later than you think.
Beware, I am about to teach some Sociology
The reason that cops get to make people lie down on the ground or otherwise put themselves in situations where they are completely vulnerable to whatever the cop wants them to do or whatever force the cop wants to do to them is this phrase:
The state has a monopoly on legitimate violence.
I'm not making this up this phrase up or endorsing this view as ideal. It comes from famous sociologist Max Weber theorizing, presented in lectures starting right after the end of World War I. (Both of those links are worth reading, by the way, to learn how the State itself -- and the State's laws -- view the State.)
This quote from the above is probably worth your time:
According to Weber, the state is the source of legitimacy for any use of violence. The police and the military are its main instruments, but this does not mean that only public force can be used: private force (as in private security) can be used too, as long as it has legitimacy derived from the state. ... [T]he individuals and organizations that can legitimize violence or adjudicate on its legitimacy are precisely those authorized to do so by the state. So, for example, the law might permit individuals to use violence in defense of self or property, but in this case, as in the example of private security above, the ability to use force has been granted by the state, and only by the state.
The police have been licensed by the state to use violence. You, when engaging in political resistance, have not. Our laws regarding violence are largely laws against illegitimate -- not morally illegitimate, but formally not legitimized -- acts of violence. That is why what seems to laypersons and average citizens like nonsense -- such as how linking arms and blocking traffic get turned by spokespersons for the state into acts of "violence" -- comes about. "Violence" means "illegitimate" violence; violence by the state is, within bounds largely set forth by the Constitution and federal code as interpreted by the courts, legitimate and therefore not, paradoxically, "violence" -- even if it looks like it's magnitudes worse than whatever it attempts to suppress.
You don't have to agree with this -- which is a good thing, because you probably don't -- but you should understand the language that they are speaking. When you challenge the ability of the police to, for example, clear people from blocking a sidewalk, you are challenging the state's entitlement to a monopoly on legitimate violence. That is why protesters who see themselves as simply upholding human rights and human dignity get called "anarchists." The architecture of the state depends on people not doing that.
A brief detour into international relations
We might as well get into this. Obviously, the notion of the state having a monopoly on the legitimate use of violence has its good and bad aspects.
Good: Those militias you keep hearing about don't have the powers they think they do. Most of us reading this blog probably live in relative peace. Plus some others.
Bad: the theft of land from aboriginal nations; the perpetuation of slavery; the Holocaust; the internment of Japanese-Americans during World War II; American corporations using state power to convince other states to destroy their citizen rebellions so that our corporations could continue making obscene profits over the blood of their citizenry; state legitimization of marital rape and of men beating women (as with "the rule of thumb," which regulated the size of a stick a man could use in "chastising" a spouse) and its unwillingness to legitimize violent reactions by abused spouses to such violence; centuries of bashing gays for being gay; legitimizing violence against animals but not by protesters of that violence, etc. Plus some others. (Have I left anyone out?)
You know about that, but this might be new to you. As Wikipedia notes from above:
One implication of the above is that states that fail to control the use of coercive violent force (e.g., those with unregulated militias) are essentially not functional states. Another is that all such "functional" states function by reproducing the forms of violence that sustain existing social power relationships, and suppressing the forms of violence that threaten to disrupt them.
Why is Somalia a "failed state"? Literally, because it cannot fulfill the state obligation of ensuring that the only acceptable violence is state-sanctioned violence. Why are some urban areas called "failed cities"? Because the wrong people are too able to get away with unsanctioned violence.
(Why aren't areas where racial and ethnic minorities or gays or women are subject to abuse also described as being "failed"? I don't know. I didn't see the answer in Wikipedia, but I'll bet that it has something to do with what interests the state sees are really worth protecting.)
This is how the state views violence. This is what these state actors learn in school. This is what cities and states and federal forces depend upon. Our saying that people have a right to engage in militant protest seems as absurd to them as what they say seems to us. Violence is the sole preserve of the sovereign, according to them, and what prevents the state from exercising this authority is itself violent. The force linking protesters' arms together is, after all, "force."
Back to genital tasering
Well -- Magna Carta, Bill of Rights, Civil War Amendments, UN Declaration on Human Rights, Civil Rights Acts and all that. The state had to back up a little in order to keep the peace. So this is where we stand:
In the course of arresting you, the cop tells you to lie face-down in the dirt. Can he do that? Probably. Not if he's doing it only to one ethnic group, etc., but usually he can. How can that possibly be?
This may not be the official answer, but drill down far enough and you'll encounter it: it's because you might have a knife or a gun -- or pepper spray.
Remember: the state asserts that it has a monopoly on legitimate violence. From the cop's perspective, that has one strong and basic implication: cops are not supposed to get hurt!
Given the allocation of ten chips representing 10% odds of preventing harm to a cop or a person whom the cop is trying to control, the person opposing the cop would be lucky to get even one chip of the ten. Cops will -- and, I stress this, bravely -- put themselves in harm's way to benefit members of the public when they have to. But when they don't have to, and the law permits them to avoid it, they will take by far most opportunities to arrange not to have to.
That is how you end up lying face down in the dirt on your own volition: it leads to very safe cops. It also leads to very vulnerable you, but within certain constraints that is not viewed by the cop as the cop's problem. Lie there, don't move, and let the situation take its course, is their view. If your cop is honest and good, the idea goes, you can do this and risk nothing more than dirty clothes. If not, you're in deep trouble anyway, because you won't get the benefit of the doubt.
This is also how people end up lying on the dirt after being tasered. This seems very unreasonable to you, to me, and to pretty much everyone but the cops, who don't know whether you do have a knife or a gun or superhuman strength because you just took PCP. I think it's reasonable to think, as the woman in the video did, that the cops had no reason to taser her at all because her hands were up even though she was not complying because it would mess things up. I'm not a criminal lawyer, but my sense is that cops usually win that dispute in court. In this case, if she can prove that the cart was acting primarily out of anti-trans bigotry -- and there's reason to suspect it here -- maybe she wins even at that early point.
Can the cops taser you in the genitals? Sure -- if there's no other way to stop you from harming them. (They can also shoot you, by the way.) When you're already on the ground with your face in the dirt and your arms behind you, they have very little argument to justify it, just as they could not legally shoot out your elbows and kneecaps just to make sure that you could not run or reach for a weapon.
Blocking access, pepper spray, and abuse of force
This brings us to Lt. Pike's leisurely golden shower of pepper spray onto protesters, depicted above. Was that "OK"? A court will, I'm guessing, eventually weigh in on that one, but meanwhile it's worth trying to understand what's going on.
If you look at the video where Lt. Pike is warning people to disperse, you'll see that there was a line of people seated across the sidewalk and stretching a few feet onto the lawn. However, Lt. Pike apparently only sprays people who are on the sidewalk -- people sitting on the lawn, contrary to various descriptions, are not sprayed. [Note: On repeated viewing, I see that I was wrong about this. See update.] Is there some significance to this? Yes -- obviously, or I wouldn't have mentioned it -- and again it's worth understanding as you figure out what your rights are compared to those of the police.
Why would Lt. Pike limit his use of violence -- in case anyone doesn't understand that that's what it is, ask a protester -- to those sitting on the sidewalk? Based on research I've had to do for Occupy Irvine (and this is not intended as legal advice generally), it's simple: the sidewalk has a special place in the law (as would roadside paths where sidewalks don't exist.) The sidewalk where everyone has a "right of way" as part of their right of travel. You don't even have a right of way on a road for vehicles itself, let alone on grass, but you do on a sidewalk (and a crosswalk between roads.) This is an ancient right coming to play here in a bizarre and unexpected way.
That's why when you "block" the grass, you are (except in unusual circumstances or when parkland is closed) just fine. If you block the street, you're violating various ordinances that facilitate others' right to travel. But if you block the sidewalk, you're violating others' right to travel directly. That's why there are often special ordinances against blocking the sidewalk.
If this doesn't make sense to you, think for a moment about what someone with a motorized wheelchair has to do, if it can't easily travel onto, for example, muddy lawn. The person literally cannot continue traveling. When I raised this before, someone pointed out that, if asked by someone in a wheelchair to make room, the protesters would have surely cleared a path for them. That, I expect, is true. But under the law, that privilege is not limited to those in wheelchairs. Anyone -- including the police -- can demand their right of way. In asking people to move, which apparently is what happened at the beginning of the video, Lt. Pike was giving them a last chance to clear the right-of-way before he used violent force. Lesson: if you don't want to have legitimized violent force against you, don't block the entire sidewalk.
Does that mean that this was good policing? No, using pepper spray to accomplish this was both stupid and absurd. If you want to clear the right of way, just drag them to the side of the lawn; there was no indication that they were going to resist violently -- and if they did, the police were well-equipped to deal with it. The real threat to them, in fact, would have come not from the demonstrators, but from the rest of the crowd. Would they have been justified in pepper-spraying the entire crowd? (Please say no.)
Was it, however, "abuse of force"? My guess is that a court will not find this to have been illegal -- despite being extraordinarily stupid. It's the equivalent of the initial tasering of the transwoman in the desert. The state gives police officers extreme discretion in deciding how to address such momentous crimes as naked photography in the desert and sitting down in a line across a sidewalk. Trying to convince the state that it doesn't have that right will be a long, hard, and probably fruitless slog. We're not talking about illegality here, but horrible judgment.
Luckily, people can be fired for bad judgment as well as for illegality. Here, I think that they should be. But in arguing for that, it's important to understand where the police are and are not on firm legal ground.
People who defend them, from University Chancellors to your relatives this Thanksgiving, will want to talk about the illegality of the protesters and the legality of the police response. That's not the discussion to have with them, because generally, they will be correct: the law itself, unsurprisingly, gives much greater care to the rights of police than those of protesters. If you have that discussion, you're going to lose. The state has a home-field advantage.
The discussion to have instead is: if the state asserts a monopoly on legitimate use of violence, what restraints and constraints short of avoiding illegality can we expect from it? Can we demand and expect that the state will limit itself to the minimal exercise of violent force necessary to secure the safety of those enforcing the law? Can we demand that the force used to compel cooperation with the law not be used as an opportunity to punish?
We sure can. And there, not with the tempting but shake assertion that protesters have the right to block the sidewalks, is where we will find the majority of the population on our side. That is the secret and the allure of non-violent resistance. It poses the questions that get us beyond the state's monopoly on legitimate violence and instead asks "what kind of society do we want to be."
That's where we win.
3:36 PM PT: For those who enjoy this sort of thing -- and I know you're out there! -- jpmassar, DeusExMachina, and opendna team up to school me about this decision, Headwaters v. Humboldt, which deserves a place in this diary.
Police officers have "qualified immunity" from prosecution; that can be broken, but it's not easy. As opendna notes, this sort of decision is useful in training officers in how they can lose their house if immunity is broken and a jury does not think that their tactics were reasonable.
10:09 PM PT: Well, some commenters below are right and I was wrong. Lt. Pike did indeed go to his left and spray some protesters on the grass, and there's a brief shot showing that he did the same to his right. (I had thought this reaction was indirect.) This doesn't change the overall point about sidewalks, but it does make it harder for him to use the "right of way" argument to protect himself (and his house.)