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I know that I may lose some readers with this, but I generally support the police. I really do. I generally have good relations with them — easier for me as a middle-aged, white male attorney, I readily admit — and I both admire the job that they usually do and I rely on them to keep the peace.
And when they go wrong, I will oppose them — because I also rely on them to follow the Constitution and the rest of our laws. I rely on them to treat people with respect — even at, yes, some additional cost of threat to their health and safety, just as with fire fighters. I don’t relish their being in harm’s way, but that’s one reason that justifies their earning their high compensation.
I rely on them not to lie on the witness stand. I rely on them not to generate pretexts for arrest. I rely on them not to repress the population — not only because it’s wrong, but because it won’t work. It just hardens public attitudes against them, reduces cooperation in fighting crime, and generates an “us or them” attitude that we as a society cannot afford.
When I’ve talked to police chiefs, captains, commanders, corporals, they have generally agreed with me about what good policing entails — although they sometimes say that I’m not getting the full context of what’s going on. They’re right — and I’m open to hearing their version of that context — because what I see keeps on looking like this video and I don’t see how they explain it away.
I was exposed to this video (taken Wednesday July 25 on Anna Drive, where Manuel Diaz was shot) on Facebook from a fellow Occupier. I welcome the police explanation of how this is justified — not so much constitutionally as in terms of winning over hearts and minds of the people whose cooperation they — we — need, on Anna Drive and places like it.
I disagree with aspects of the video’s legal analysis. Coyotl (whom I don’t know, so maybe I shouldn’t refer to him by first name, but it’s easier than repeatedly typing in “Tezcatlipoca”) seems very well-informed about what to do in this situation, but the first question he asks is “Am I being detained?” People sometimes mix up detention and arrest. In that situation, my first question would be “Am I free to go?” When told “No,” my next question would be “Am I under arrest?” He would again be told “No.” THEN I would ask “am I being detained?”
Coyotl was being detained, without arrest, in something called a “Terry Stop” (after the Supreme Court’s case of Terry v. Ohio that gave police the right to do this sort of search and seizure if certain conditions are met.
“[T]he Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.” (392 U.S. 1, at 30.)”
Terry stops — also known as “stop & frisks” — are reasonable procedures for police to follow IF they are not abused. (They are often abused. I was marginally involved in a big successful case against the NYPD over them in the early ’00s; the controversy over them has recently re-emerged there. This from Wikipedia:
“The meaning of the rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers).”
I’m happy to our society to let Terry stops take place under the conditions outlined by the Supreme Court — conditions that I don’t think appear to have been met here. Cops making themselves secure that someone they’re talking to doesn’t have a weapon should lead to fewer shootings of innocent people — something everyone should want to see. I do not favor Terry stops being used for harassment and intimidation. Anyone who wants to explain why they think that the cops had a reasonable
suspicion that Coyotl had been, was, or was about to be involved in committing a crime — go for it. Anyone who further wants to explain why the police had good reason to believe that he was “may be armed and presently dangerous” — well, I’ll hear you out, but don’t expect to convince me.
Here’s the video, which I’ll critique below:
The officer asked Coyotl for his ID and whether he is on parole or probation, neither of which he was. (Those who are probably shouldn’t be protesting. It’s not that they don’t have the right, but that they do have the extra vulnerability.) Coyotl hands over his phone to someone at 1:50 — smart move, but it could backfire. (Why was he giving it away? Does it become evidence?) And, in the series of photos following, we can see Coyotl getting cuffed at 2:15. I’d like to know why.
Coyotl is led away to the back of a parked police car and we switch from photos to video. (Note that there’s no riot in response.) The video notes that he didn’t consent to a search. If this was a Terry stop, he didn’t have to consent to a search of his person. (Not being a criminal law attorney, I’m not sure about his need to consent to a search of his bag. I suspect that, with today’s Supreme Court, the police could search it for weapons and use against him anything they found incidental to that search.)
At 2:54, the police say that they’ve found markers in his possession, which they suggest may have been used in graffiti. Stop right there — this smells like horse manure to me. Do the police really expect anyone to believe that they believed even for a moment that those markers were used in the nearby graffiti? This is why one wants a Citizen’s Commission, so it can bring in officers and say “tell us the truth about this now.” If officers really think that implausible bases for arrest are plausible, perhaps they should work somewhere else — or at something else.
At around 5:25 on the video, following the sound of a barking dog, the narrator of the video says that they’re going to let Coyotl go. Then, at around 7:40, comes an unexpected turn. Coyotl retrieves the phone from a friend and then asks the officer (I believe, from the green uniform, that it’s a county sheriff) “so are you telling me that you have the wrong badge number?” He confirms that the correct badge number as being 5671. Then at the 8:00 mark comes the key question:
“Why are you wearing the wrong badge number?”
GAH! I hate that. I hate that so much. I hate that much worse than I hate temporarily (and often inadvertently) blocking the sidewalk. I hate that much worse than I do graffiti. It may even be worse than breaking windows, because what is broken here — our ability to trust the police — is less easily replaced.
I tell my friends in Occupy that we have to follow the law to the letter when we protest. How then, is it possible that the police can assert that they don’t?
In the seconds following we get what will have to pass for comic relief in this video. The officer abruptly chirps out “OK, bye!” and waves Coyotl away. The dark blue uniformed officer steps between them and says airily “You wanted to go home — you’re free to leave! G’night!”
He fails to add “you’ve been a lovely audience — we’ll be here all week!”
As with the police trying to buy cell phone videos that documented their actions on Saturday July 21, this fries me in a way that in some ways exceeds the shootings themselves. Those are attacks on individuals. For the police or sheriffs to say “we will not be held accountable for our actions” — because accountability is what the numbers on those badges are supposed to provide — that’s an attack on all of us. That’s an attack on my ability to tell my children “if you see something, say something” — that is, if you see police misconduct, get the person’s badge number.
I know that this happens all of the time — but it’s rarely on video. The OCSD, APD, or whoever has the power needs to make an example of out someone here and recommit themselves to following the law themselves. Lawless law enforcement just invites lawlessness.
So: there should be a full investigation of the stop and especially of the switching of badges. And Coyotl Tezcatlipoca, who kept his cool, withstood humiliation and repression, and then stood up for his rights and asked the right question at the right time — he deserves some sort of honorable recognition from the city.
(Think I’m joking? What took more guts — doing what he did, or pointing a shotgun out of the window at protesters.)
I don’t know who may eventually negotiate peace between the police and people of Anna Drive, but based on what I’ve seen here I sure do want Coyotl to be at the negotiating table. Now about that investigation….