Monday, November 21, 2011

"I fought the law and the law won"

Survival and primitive skills expert Cody Lundin makes reference to the “Cycle of Dumbass”.  It’s a vaguely karmic concept says, “Do dumbass things, experience dumbass consequences”.  I think the principle can be applied widely throughout life to a variety of behaviors; such as resisting a law enforcement officer.

Police are granted legal arrest powers that common citizens do not have.  Arrest does not mean that you are automatically going to jail.  Arrest means that the officer can move or restrain you against your will if the officer believes it necessary.  Implicit in the power to arrest is the authorization to use reasonable force to make the arrest.  Police departments have very carefully thought out codes of conduct regarding when and to what degree force may be used.  Varying degrees of force are recognized; from the mere presence of the officer to verbal commands all the way to lethal force such as firearms or blunt force instruments.  This is called a force continuum.  The goal is to apply the minimum degree of force reasonably necessary to control the situation by giving the police officer several force options.

See, police officers are required to maintain control of a conflict.  Once an officer decides that intervention is necessary, they cannot allow others to ignore or countermand their lawful commands.  Courts generally recognize that police officers have a wide degree of discretion on resolving and handling conflicts.  The easiest way to resolve a conflict that has not yet escalated to criminal activity is to make one or more of the individuals causing the problem leave.

Ignoring a police officer’s lawful commands is illegal.  Interfering with a police officer’s attempt to exercise arrest powers is called resisting arrest and is also a crime.  Physically resisting is a violent crime.

Which brings us to UC Davis and the alleged incident of police brutality.  Students were asked to disperse by the campus police.  The students refused, thereby resisting arrest.  The students were sprayed with OC, or pepper spray.  Was this reasonable?

Absolutely.  On the continuum of force OC falls between verbal commands and physical contact by the officer.  It’s a “soft” method of force that is much less likely to result in injury to the resistor than any physical contact such as wrist locks or pressure points.  Every police officer is sprayed with pepper spray during training so they can experience for themselves the debilitating effects.  Those same effects usually wear off after less than an hour leaving no injuries other than inflammation of mucous membranes.  It’s painful and humiliating but everybody walks away.

Riots and large groups of resistors complicate arrest activities.  Anytime that police are outnumbered a disparity of force situation exists.  Officers are assumed to be at higher risk because of the presence of multiple resistors.  In the UC Davis case, the protesters are alleged to have surrounded the officers, further escalating the situation.  Remember, police officers are required to maintain control of a conflict.  These circumstances make the use of OC even more reasonable. 

If the protest had turned violent, particularly if the officers were threatened with being physically restrained or overwhelmed, the officers could have been required to use lethal force.  Attempting to disarm a police officer is grounds for the officer to use lethal force inn response.  Common law recognizes that disparity of force justifies the lawfully acting party to use a higher degree of force.  Participating as part of a mob in illegal activity automatically places the participant at greater risk of physical injury, up to and including death.   

I can hear the responses now, “But the students weren’t breaking the law!” 

Yes, they were, by ignoring the police officers’ commands to leave the area.

“But the police had no right to ask them to leave!” 

Yes, they did.  The UCDavis Code of Student Conduct even says so.  See sections 102.13 through 102.16.  I think 102.16 pretty much nails it down.

“But the students were on public property!” 

No, they weren’t.  The California university system is a non-profit education entity.  It is most definitely not public property.  Don’t believe me?  Try parking in the faculty lot without the right color of parking tag.  The university reserves the right to deny access to anyone, including students and employees, to university property.  It’s common law regarding private property.

Once again, we have OWS protesters asserting that their rights to protest trump the rights of others to use of their private property.  The courts have been quite clear that such is not the case under law, but the viewpoint is symptomatic of the toddler logic and narcissism that is too often evident in the psychology of the protestors.

Let’s recap.  Resisting arrest is illegal.  Resisting physically is an act of violence.  Those protesters were by definition not peaceful.  The police were required to use reasonable force to make them leave.  The police used the lowest level of force required after verbal commands failed to move the protesters.  Nobody got electrocuted by a taser, beaten with a baton, or shot with beanbags or rubber bullets.  No chemical burns from Mace or injuries from high pressure water hoses were inflicted.  At the end of the day, every one of those students was able to go on acting like an asshat in public.  

I’m not a police officer and never have been one.  As an armed citizen, I have made it a point to study the law on justifiable use of force and police procedures.  I recognize that my decision to carry a firearm potentially escalates the risk factors in any interaction I may have with law enforcement so I have made it a point to learn how I can reduce the risk of escalation.  It’s pretty simple, really.  Use common sense, don’t get excited, and follow instructions.

If I believe that an officer is acting outside of the limits of the officer’s authority, the time to address it is the next day.  Getting into a pissing match makes me the lawbreaker, not the victim.  I’m reminded of the advice my Business Law professor, himself a United States attorney, gave to the class on how to avoid getting sued:  Don’t be an asshole.