Thursday, July 27, 2017

Police Force

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Police Officer
He's just trying his best to protect the people, often times it's a thankless job. Thanks Al Sharpton and Obama!

In his more than 36-years as a military and police officer, including years devoted to training those who currently serve, David “Bo” Bolgiano says he never met a peace officer who got up in the morning thinking, “Gee, I hope I get to kill someone today.” In today’s “hot take” culture, where everyone from community activists to politicians are blessed with immediate, social-media transmitted insight into police use of deadly force, Boligiano’s recent deep-dive into the legal foundation for the use of deadly force by police, is a refreshingly rare moment of sober reasoning on an issue often statistically overblown; a debate typically book-ended between “all cops are racist killers,” and “every police action is justified.”

The lesson from Bologiano’s expert analysis of the case law and reasoning behind police use of force in the May edition of the Maryland Bar Journal, is that the aim of societal discussions and government action regarding the use of deadly force, should center on the circumstances of these incidents before they happen, rather than focus primarily (if not exclusively) on the legal proceedings that follow. The notion that only frequent and successful prosecutions of police will bring change, is not only woefully political, it searches for a simplistic resolution the courts made intentionally hard to achieve.

As Bologiano explains, decades of case law carve out a significant margin of error for police when it comes to deadly force, as necessary “to protect officers from the sometimes hazy border between excessive and acceptable force.” The courts, including the U.S. Supreme Court, recognize the danger in placing the officer in an environment where he is supposed to pause to consider the legal nuances of his actions, in situations where split-second decisions could mean the matter of life and death; not just for the officer, but the public as well. Furthermore, given the high-pressure and complex nature of their work, the courts are reluctant to “second guess” police action, regardless of whether the force is later believed to be excessive or unlawful.

This is not to say that police have or should have complete immunity. The courts do make exceptions allowing for prosecution when actions of police demonstrate “only a purpose to cause harm.” However, as Bologiano notes, “neither the law nor reason requires a law enforcement officer to use the least forceful means available to stop a threat or make an arrest, only an objectively reasonable means.”

The broad safe harbor afforded to police is, as we know from recent incidents, not a politically expedient response to controversial actions by them; but it is an intentional design of the courts to keep police effective and the public safe. Attempts to dismantle this system via politically motivated decisions, like President Obama’s attempts to place local police departments under the purview of Washington, set to undo decades of carefully considered and reality-based case law.

To be sure, police make honest mistakes, and sometimes make terrible decisions. Yet, it is disingenuous to assume those actions are not taken seriously, or are part of a larger conspiracy, simply because officers are not eventually prosecuted in accordance with mob rule. Prosecutors should and can pursue charges when warranted, but blindly pursuing them out of political avarice (as appeared to be the case in Baltimore in 2015), or in the irrational hope of effecting institutional change, is a deeply mistaken and ultimately dangerous course of action.

Rather, citizens and governing bodies should look to improve police training — especially with regard to confronting non-violent citizens who are lawfully carrying firearms — which can help police make better decisions in their contact with citizens. As Dallas police officer Chelsea Whitaker notes, better training may have helped avoid the tragic outcome in the Philando Castile shooting.

Another worthy pursuit would be reducing the over-criminalization of our society, in which even selling “loose cigarettes” can end in a deadly police encounter. By reducing the reasons police would need to confront citizens, it naturally follows the potential for escalation would also be reduced.

The easiest and quickest way, however, to decrease the use of deadly force against citizens (rare as it is, contrary to media hype), is simply by treating police with respect, and obey their commands – even when they are wrong. Citizens should know their rights, including the right to not answer questions and have an attorney present when they do choose to speak; but ignoring an officer’s orders, engaging in back-talk or insults towards them, attempting to flee, or worst of all, physically resisting an arrest, is never an acceptable “protest.”

 The use of deadly force by police is regrettable, and in some instances, truly tragic. But, reducing the occurrences of deadly force requires understanding and cooperation by police and citizens. And, a key aspect of this cooperation is recognizing the legal protection of their actions, good or bad, that in turn help keep society safe.

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Eric Garner Funeral

“I’m minding my business, officer,” pleads the man on the video. “Please just leave me alone.” Minutes later the man, confronted by police for allegedly selling “loose” cigarettes, would be placed in a chokehold and wrestled to the ground, eventually dying from injuries sustained by the restraint.

The video recording of Eric Garner’s death is deeply disturbing, and has once again stoked protests and fiery debates about police tactics and racial biases. However, focusing the anger and debate on racial bias or specific actions by individual police officers, misses the broader and far more important public policy issues raised by this case: the over-criminalization of our society, and the use of the law enforcement power of the state to regulate commercial actions and raise government revenues.

Make no mistake — whether Garner was targeted because of his race and whether the officers who confronted him employed excessive or improper force, are important issues. And both should be debated and addressed within the context of civil and criminal laws and procedures.

But neither of these questions addresses the far more important issue of why we as a society have clothed police with the authority to consider it within their power to arrest someone for engaging in such a trivial act. Ultimately, it is not so much the police officers who should be the focus of this debate and of our concern; it is ourselves.

If left unanswered, the questions about over-criminalization and abuses of police power to regulate commercial activity and raise revenue, threaten to overwhelm the fundamental principle on which our nation was founded — that government exists to protect Liberty. Unfortunately, what the Garner and so many other cases have come to reflect is the warped principle that the police power of the state exists to protect government.

How bad this problem has become is illustrated in the growth of the federal criminal code. Just three decades ago, a Justice Department study of the U.S. Code estimated there to be approximately 3,000 criminal offenses. In the years since, the Congress has added nearly 1,500 more crimes to the books. And this does not include the thousands of state and local offenses, or the thousands more regulatory edicts with which individuals and businesses are forced to comply.

While many Americans may believe it is easy to stay out of trouble with the law, and thus avoid confrontations with police, prominent civil rights attorney Harvey Silverglate notes in his seminal work, Three Felonies a Day: How the Feds Target the Innocent, this is a myth. Silverglate’s well-documented research into abuses of police and prosecutorial powers establishes that there are so many different and confusing criminal and regulatory laws on the books, that the average person in America cannot make it through a normal day without running afoul of at least three government “gotchas.” As Silverglate correctly concludes, this is no accident. “As a civil liberties matter, a government which has the ability to prosecute innocent citizens at will, is a government which has achieved the power that has characterized all tyrannical governments throughout history,” says Silverglate.

As documented further by Silverglate, despite the sometimes trivial or often technical nature of offenses charged, the laws and regulations on which such prosecutions are based are sufficient to empower the government to use its vast law enforcement powers to control whoever they want whenever they want. This applies whether it is a single citizen attempting to sell something as innocuous as a cigarette on a street corner, or a physician who has prescribed to a patient more of a government-controlled drug than federal or state drug agents have decided is appropriate.

In a broad sense, and as philosopher and noted author Ayn Rand opined more than half a century ago, since there is no way to absolutely control free men, government simply declares so many things “illegal” that it makes it impossible for citizens not to break the law.

Back in the 1930s, federal agents had to spend seven years engaged in creative thinking and investigating in order to find a way to bring to heel Al Capone’s vast criminal empire; finally settling on the then-novel use of the federal tax code. In 21st Century America, federal agents can choose from a lengthy (and ever-expanding) menu of regulatory and criminal offenses on which to easily and quickly build a case against someone as big as an Al Capone or as small as an Eric Garner.

It is not only the incessant drive to control people and businesses that fuels the engine of over-criminalization. Government at all levels has become so big and so costly, that revenues are never deemed sufficient to meet those perceived “needs.” Hence, the drive to find ever more creative – and liberty-stifling – ways to bring in more revenues; such as outlawing the selling of a cigarette by one person to another as a way to ensure such “commercial transactions” are taxable and taxed.

This expansion of police and regulatory powers reflects the unhealthy crony relationship between businesses seeking favors through tax breaks or government-mandated monopolies; the violation of which then leads often to criminal prosecutions.

Ultimately, of course, it is we the people who elect and reelect to public office the legislators, governors and presidents who both expand and abuse the powers to which their oaths of office were sworn. Let us not squander the current opportunity to seriously debate and reform these fundamental problems, by refusing to see the forest for the trees.


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