The Difference between ‘It’s a Tragedy’ and ‘Stuff Happens’

There is a reason that I look at YouTube videos of police interactions. Every once in a while, you’ll find a bit of sheer genius amid all of the idiocy. This is one of those cases.

Here, a black man is pushing a motorcycle down the street when he is stopped by the police, to investigate whether the motorcycle is stolen or not.* The officers run the license plate of the motorcycle, then they run the VIN number, just to be sure. Both come back clear, they both match, and so on. The black man isn’t real happy about being stopped, and at 0:22 one of the officers explains that the man has a “completely disturbed attitude.” It’s not really the officer’s place to decide that, but the interaction gets better.

At about 4:44 in the video, the suspect asks the second officer what he thinks about all of these shootings, referring to the earlier comment he made about black men, especially unarmed black men, being killed by police officers without the officer ever being convicted. The officer responded:

It happens.

And then the suspect, in a moment of genius, asked the officer about the five Dallas officers who were killed by ambush. The officer’s response was very different:

That’s tragic.

Our suspect immediately pointed out the disparity in the attitude of the officer, that “s**t happens” if it is a civilian who is being killed by the police, but “it’s a tragedy” when any officer is killed. The officer won’t address that, but points out that the individual was violating a traffic law.†

The sad part is the officer never understands what the man is saying. The officer just doesn’t get the difference between an attitude that says “s**t happens” and “it’s a tragedy.” To spell it out, that attitude is one that says that a police officer’s life is more important than a non-officers life. Our suspect then makes it crystal clear (at 8:10):

The next that somebody kills a s**tload of officers, say that to yourself, well, s**t happens.

That is absolutely brilliant.

There is a distinct problem when police officers believe that their lives are more important than the lives of the citizenry that they are sworn to protect. This video points out that attitude in a way that is hard to dismiss.

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*That’s arguably reasonable suspicion, although it is also arguably racial profiling. For the purposes of this article, we’re going to assume that it is reasonable suspicion.

†Although I believe this to have happened in Texas, I’m not sure. I’m also not sure that there is a traffic violation involved, but even giving the officers the benefit of the doubt, that still doesn’t address the man’s concerns.

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Ka-Ching: New Jersey Settles with Attorney Arrested for Remaining Silent

Back in 2015, Rebecca Musarra was stopped for speeding in Warren County, New Jersey. Musarra refused to talk to the state trooper, although she complied with his requests to produce her license and registration. The trooper, a young idiot named Stazzone, didn’t like that, so he told her she had to answer his questions or she would be arrested for obstruction.

As I pointed out in my Fault Lines article, that’s BS and Musarra, an attorney, knew that. So she refused to answer and the idiot arrested her, and when arresting her, read her a Miranda warning.

You know, the warning that starts out:

You have the right to remain silent.

Yeah, that one.

I pointed out the irony, but Musarra still sued, even after the supervisor released her without charge, waived the impound fees, and apologized.

Even the guys at PoliceOne.com knew this was going to be a loser for the state.

The State of New Jersey apparently agreed, settling the federal lawsuit for $30,000, but admitting no wrong-doing. Even after the State admitted that the troopers were given additional training following the Internal Affairs complaint. Yeah, we know what that means. It means that the troopers messed up and it was just a question of how much the state was going to pay.

About $30,000.

When the Media Makes People Dumber: Akins v. Knight, Eighth Circuit – UPDATED

My former mean-ass editor at Fault Lines, Scott Greenfield, used to tell all of us that we had a duty not to make people dumber when we wrote articles as part of the media. So when I saw the first comments on Akins v. Knight, et al.,* on the various media sites claiming that the Eighth Circuit ruled that there was no First Amendment right to film police officers in public, I was concerned. Then I read the opinion, and the order of the District Court. Imagine my surprise when I found that neither document said anything of the sort.

As far as I can tell, the story first hit the news at KRCG in Columbia, Missouri, and then spread like wildfire through the internet. The headline was “Eighth Circuit: Citizens do not have a right to film public officials in public.” That would, in fact, be news if that’s what the opinion and order said, but its not. Instead, it appears as if the reporter took the story directly from the plaintiff’s attorney and ran with it. The story says that Akins was arrested numerous times for “his actions,” leaving an impression that the arrests were for filming the police.

Only that’s not the case. Akins was arrested for marijuana, for carrying a concealed handgun, for carrying a butterfly (switchblade) knife, for driving with a revoked license, and for outstanding warrants. He was never arrested for filming the police, and the District Court order notes that the Chief of Police advised his officers that Akins had the right to film them in public. Every arrest was for a criminal offense unrelated to filming police and was supported by probable cause.

The District Court order also discusses an invitation-only media training event that Akin tried to RSVP for even though he was not invited. The Court noted, correctly, that the public and the media do not get special access to events, nor do they have the right to insist on filming or recording any event that they want to record. This deals with access, that Akin, a member of the nontraditional media, wanting access to an event for the traditional media, and that was limited to 30 invitees due to space concerns. Akins simply does not have a constitutional right to invite himself to a meeting merely because he wants to film the meeting. The District Court noted:

Akins was not a member of the traditional media, nor does the record show he was an active nontraditional media member at the time. Space was limited. These were content-neutral reasons not to create an exception for Akins to attend the invitation-only event. The media does not enjoy a right of equal access or special First Amendment rights.†

The Eighth Circuit opinion didn’t address any of that. In a per curiam opinion, the appellate opinion focused on the motion for the judge to recuse herself, and affirmed the denial of that motion. The entire comment on the arrests and filming in the opinion was short and sweet:

 

Akins also argues that the district court erred by granting the motions to dismiss and for summary judgment filed by the defendants and by denying his own motion for partial summary judgment. After careful de novo review, we conclude that the district court did not err in its thorough and well reasoned opinions. Accordingly, we affirm.‡

Nowhere did the Eighth Circuit say anything about filming police officers in a public place. But that’s what the headline was, in a story where Akins’s attorney was telling the reporter that he was asking for a rehearing and was considering asking the U.S. Supreme Court to look at the case. It would be much easier to get the Supreme Court to grant certiorari if there was a circuit split—except there’s not one.

Now that it was published by KRCG, every blog in creation has picked up the story and is now screaming that the sky is falling.

It’s not.

You want to know what I find especially gratifying? Over at PoliceOne, some idiot staff member ran with the same story. The cop members overwhelmingly called BS, having taken the time to actually read the opinion. One of them summed it up nicely:

The 8th Cir. NEVER says there is no right to record LEO’s in public. We need to be very careful on this: EVERY federal appeals court in the country to have squarely addressed THAT issue, i.e., filming the police in public, has recognized that right.

You know, if poor dumb cops can read the opinion and get it right, is it too much to ask that a major media outlet do the same? Or at least run it past a lawyer (other than involved counsel)?

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UPDATE

I emailed the KRCG News Director, Matt Johnson and asked him for a comment on this article, noting that PoliceOne had issued a correction on their article. He responded:

For your blog we have no comment. I will tell you that after a thorough review by our legal counsel we stand by the facts of the story.

The court opinions stand on their own.

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*Akins v. Knight, et al., No. 16-3555 (8th Cir., July 25, 2017) (slip op.); and No. 2:15-CV-04096-NKL (W.D. Mo., Aug. 2, 2016).

†District Court order, at 35.

‡Akins, slip op. at 6 (internal citations omitted).

Grapevine Police Officer Brian Hintz and Video Activists

Today I watched a minor drama unfold in Grapevine, Texas, at the US Post Office. A young activist in Dallas has been filming various facilities and calling it a “First Amendment Audit” like those done by other activist around the country. I like this guy, he’s non-confrontational for the most part and he also has a good grasp on what the law is in regards to photography in public. One of the articles dealt with an encounter in Westworth Village and how the activists handled themselves compared to how the police handled themselves.  The officer came off poorly there and the activist did well, as was the case in Grapevine, for the most part.

Going through this video, it’s fairly simple to see that the activist knows what he is doing. At about 1:30 in the video, he is approached by a postal employee and questioned. He answers and the employee says “alright” and walks back to the building. Fairly good, so far. Then, at 4:20, the postmaster comes out and tells the activist that he wants the activist to stop taking video because it is making his employees uncomfortable, and the puts the activist “on notice.” That’s laughable, because at this point, the activist has done nothing that is illegal, immoral, or unethical.

So, as is inevitable in this type of encounter, the police are called and Officer Brian Hintz shows up. Like the officer in Westworth Village, Hintz seems to have a chip on his should and he doesn’t know the law. Hintz (at 6:05) makes contact and asks for ID, just like almost every police officer in the United States would do.* But Hintz says that if he requests ID, a person is required to show it to him, which is absolutely incorrect. We’ve covered this before, at Fault Lines, so I won’t go over the law again, other than to note that the activist did not have to identify himself.

Then Hintz tells the activist that he may ask him to leave, and the activist states correctly that he has a right to be there. Hintz doesn’t like that, and makes a veiled threat to arrest the activist for Failure to Identify—so the activist quotes the law to Hintz.

All is going well for the activist—and then he makes a statement that is just flat wrong.† The activist asks if the officer is TCOLE-certified, which all police officers in Texas have to be, and if he took the mandatory training on public photography.

The problem is that there is no state-mandated training on public photography for peace officers. Peace officers do have mandated training for each two-year training cycle, but it doesn’t include anything on public photography. The mandated training for the current cycle (2015-2017) includes the following:

• Course 3184 – State and Federal Law Update Course
• If officer holds Basic Certificate:
  • Course 3939 – Cultural Diversity
  • Course 3232 – Special Investigative Topics
  • Course 3841 – Crisis Intervention Training
• If the officer holds an Intermediate Certificate or higher, no other mandated courses
• Other courses to total 40 hours

None of the courses listed have any component that deals with public photography. An individual department could mandate that its officers receive training on the issue, but it is not required by the State of Texas.

So Hintz had no clue what the activist was talking about, because the activist was misinformed. Could Hintz do with some training? Sure, he needs to be updated on what §38.02 says, but that’s a problem that’s common to almost every police officer in the state. Hintz didn’t press the issue on arrest or leaving, and most importantly, he did nothing that violated the rights of the photographer.

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*To be very clear, there is nothing inherently wrong a police officer asking for ID in a consensual encounter.

†The same comment is often made by David Worden (News Now Houston), along with several other misstatements of the law dealing with photography. I may do a post on that issue at some point.

The War on Communities of Color

The following was written by Lynne Rambo* and published on her Facebook page on August 2, 2017, and is reprinted here in its entirety by permission.

It has been a full-blown War on Decency from the start. From “Trump the Bitch” to “grabbing pussy” to mocking disability to ridiculing a dead veteran’s parents to tweeting the dismissal of patriots from the military to criticizing the mayor of London after a terrorist attack to branding Muslims.

Now we have the War on Communities of Color.

The new DOJ, so inaptly named in this moment, has withdrawn from seeking consent decrees in cities whose police departments have employed excessive force, especially against black citizens. The President has “jokingly” suggested that the police should be rougher on those they arrest. This as we have watched numerous police officers inexplicably shooting black men. This as the President himself has been sued for inciting a riot against two black protestors at a Kentucky rally.

The Attorney General with the checkered past on race has decided that drugs, including marijuana, are our biggest problem. He has adopted this approach even as multiple states have legalized marijuana and everyone acknowledges that racial minorities have suffered tremendous discrimination in the prosecution and sentencing of drug crimes.

And today the Department announces that it will investigate our universities’ efforts to ensure that our classrooms reflect society. The Attorney General will use our resources this way despite the Supreme Court’s decision upholding the extremely limited use of race in Fisher v. University of Texas, and the existence of statutes in many states forbidding any consideration of race.

The anger, and the apparent sense of threat, from these people that have had such advantage, opportunity and power is nothing short of obscene. As compared to blacks and Latinos, every single economic, educational, and political measure in this country favors whites, most often dramatically. (Percentage employed, percentages with a high school or college degree, household income, amount inherited, property holding, test scores, political representation, and so on and so on and so on.) Every single one.

Indeed, the very starkness of the differential leaves one of two choices. Either you believe that our communities of color are inherently deficient, just intrinsically incapable of catching up, or you believe that we have never exorcised the racism that has plagued us from our start, and so we experience daily its consequences. If you are of the former view, at least have the courage to stand up and say so as you conduct this War. If you are of the latter, have the courage to question people who support the Department of “Justice.” Ask them why it is that the country is going after its least privileged people.

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*Lynne Rambo is a full Professor of Law at Texas A&M University School of Law in Fort Worth, where she teaches Constitutional Law, Evidence, First Amendment Law, and a Supreme Court Seminar. She earned her undergraduate degree from Columbia, magna cum laude, and her law degree from the University of Georgia, also magna cum laude. She was editor-in-chief of the Georgia Law Review and she clerked for Judge Thomas A. Clark, United States Court of Appeals for the Eleventh Circuit. Her comments here are her personal views, and should not be taken to represent in any way TAMU Law.

President Trump and Police Use of Force

When I was at Fault Lines, we had very clear guidelines about writing articles on politics—don’t do it. So for the most part, we did not write on political figures unless it tied directly into a matter that we were otherwise OK to write about. I was good with that, but you may have noticed that this isn’t Fault Lines. Don’t get me wrong, for the most part, politics won’t play into my posts.* There are times however, when we must bring politics into play here, and this is one of those times. President Trump gave a speech in Long Island before a bunch of police officers and he endorsed police brutality by officers. This is unacceptable and it is harmful to both the nation and the presidency. We have to condemn the President’s remarks in no uncertain terms.

The President’s words were clear:

[W]hen you see these thugs being thrown into the back of a paddy wagon—you just see them thrown in, rough—I said, please don’t be too nice. Like when you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over? Like, don’t hit their head and they’ve just killed somebody—don’t hit their head. I said, you can take the hand away, okay?

It didn’t take long for responsible police leaders to respond. The IACP released a statement covering the police use of force. The New York Times and other news outlets noted that police department after police department issued statements that excessive force would not be tolerated and officers would be punished if they mistreated suspects. New York Police Commissioner James O’Neill said it perfectly:

To suggest that police officers apply any standard in the use of force other than what is reasonable and necessary is irresponsible, unprofessional and sends the wrong message to law enforcement as well as the public. . .

I was discussing this issue at RallyPoint,† where some immediately defended the speech. One warrant officer who is also a California deputy sheriff made statements that it is worse now than ever for police officers, and that Trump’s statements are appropriate. This is typical of the new mindset of police officers. First, his statement is factually incorrect. The crime rate is at its lowest level in about 50 years, and there are far fewer officers being killed now than in the late-80s, early-90s.

But that’s the narrative that he hears, because he’s only interested in the sound of an echo chamber, like PoliceOne and the Force Science Institute.‡ It’s a common problem that communities are now facing. The over-militarization of the police has created an us-them mentality, and the police are taking the position of Anakin Skywalker, that if you are not a blind supporter, then you are against him, and are therefore evil.

We’ve already got a police accountability and transparency problem in the United States. The voters in Oakland recently created a civilian oversight board, where the board could fire bad officers, and Seattle just strengthened its civilian oversight, as did Chicago. It’s part of a trend to rein back the excesses of the few police officers who use excessive force, who the community wants to be controlled and eliminated.

Many police officers don’t like this, naturally. That’s who Trump was pandering to, the audience he was targeting. It encourages bad officers to step over the line, convinced of their own righteousness. When Anakin did it, he became Darth Vader. That’s not who we want as police officers. And we don’t want the Anakins to be encouraged by the Trumps, either.

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*For disclosure, I’m a libertarian who typically votes Republican, but who supported Gary Johnson in the last presidential election.

†RallyPoint is sort of a cross between LinkedIn and FaceBook for the military, from currently serving members, to veterans, and to retired service members. I’m a retired USAFR captain.

‡FSI is a pro-police organization that uses junk science to support police officers, particularly in officer-involved-shootings.

When a “Tyrant Alert” Merely Means Good Police Work

On the internet, there are a bunch of guys that go around filming the police, police stations, FBI and DEA buildings, U.S. Post Offices, and so on. They label these actions as “First Amendment” audits, and they are trying to provoke or bait either the occupants of the building or the responding police into making an arrest. I don’t have too much of a problem with this, if the police are going to be entrusted with the power to take away someone’s liberty, then they need to be trained on the limits of that power.

When one or more of the officers do make an arrest in these cases, they’ve usually made a mistake that will be corrected by either police supervisors or by the prosecutor. But every once in a while there is a mistake made, but it is not by the police. You know, if you keep pushing the edges of the envelope, at some point you’re going to find that you’ve exited the envelope.

Oops.

In Annapolis, Maryland, Landon Tomsa was conducting a First Amendment audit on the post office, as shown below.

In the first part of the video, Landon is confronted by postal employees, who advise him that he needs to leave Post Office property. That’s fine, but Landon is not on Post Office property, he’s on a public sidewalk. A few minutes later, the Anne Arundel County police arrive (at 3:55) and things start to go downhill. The initial officer notes that filming is not a criminal violation and asks for identification. Landon refuses to provide identification, and the officer does not press it at this time.

Then a second officer arrives, and both officers go and talk to the postal employees. When they return to Landon (at 9:30), the officers advise Landon that the employees have stated that Landon entered Post Office property, walking past “no trespassing” signs. At this point, the officers have reasonable suspicion that Landon committed a crime, that of criminal trespass.

Landon, who knows that he did not enter the property, refuses to either identify or to show his video to the officers, even after he said that the video proves that he did not enter the property. While Landon knows that he’s innocent of the crime he is being accused of, that’s not the standard. The officers have reasonable suspicion that Landon committed a crime, so they ask him to identify himself.

Landon is under the mistaken idea that the officers had to have seen him on the property, that relying on the postal employees word is hearsay. Even if it was hearsay, that doesn’t matter, the rules of admissibility don’t apply at this point. The officers have reasonable suspicion, which is what they are required to have at this point. They have a right to identify him at this point, and in Maryland, refusing to identify when required will result in charges for Obstructing or Hindering an Officer.*

The officers repeatedly tell Landon this, and Landon still refuses to identify. This is where it gets really complicated. It’s my understanding of Maryland law† that the officers would not be able to arrest for the trespassing charge if they did not see it. They are, however, able to arrest for the obstructing charge, because they did observe that offense, and they can then also charge Landon with the trespassing. That’s exactly what they did, and the internet went nutso.

A bunch of different YouTubers and websites have been critical of the police, screaming that the arrest was unlawful. That’s all well and good, but wrong. The arrest was completely lawful. The officers had reasonable suspicion that Landon committed trespass, because the employees said that he had trespassed, and no one provided evidence to refute that. At that point, the officers were legally entitled to identify Landon, but he refused, thereby committing the offense of obstructing or hindering. So they arrested him, and have been catching a ration of crap ever since by the internet experts.

It’s a shame, because the officers did their job and they did it professionally.

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*Punishable by up to three years in jail and a $3,000 fine.

†I’m not a Maryland attorney.

My Morbid Fascination with the Idiots at PoliceOne: The Brian Encinia Story

I had a double major for my undergraduate degree. The first is simple Political Science, picked because I knew that I was going to go for a graduate degree, either in Public Administration or Law, and PoliSci was simply one of the common degrees to prepare for either. My second major was Sociology, picked because I thought it would fit well with my job as a police officer.* So everytime I look at the PoliceOne, I look at how it has become a textbook example of groupthink and the hive mind, how it is normally an echo chamber for the police reactionary crowd. But I’m sometimes surprised, as I was by the Brian Encinia narrative at PoliceOne.

Don’t get me wrong—most of the guys responded per stereotype, screaming bloody murder about his termination and about the perjury charges being filed. At the time I believed that the perjury charge was a stretch, but that it was being used to force Encinia out of police work, because no District Attorney is going to sponsor Encinia as witness if he’s even been charged with perjury, much less if he was convicted.†

So the Special Prosecutor offered Encinia a deal. Surrender your peace officer license in lieu of prosecution, and he would drop the charges. So Encinia took it. At that point, most of the PoliceOne idiots started screaming that Encinia was vindicated and that he should sue for malicious prosecution. A noticeable exception to those screaming were PoliceOne members who are apparently Texas DPS troopers. They, for the most part, condemned what Encinia did. Comments like this came from the DPS members:

He had the full backing of his Admin, up until the point he violated numerous Departmental policies!

And:

He definitely made us look bad and he was rude and unprofessional. I was a red patch‡ FTO from 2001 to 2006 and trained around 7 or 8 rookies and I always hammered into them that we are the good guys out here and we have developed a reputation in our communities of being fair and polite even when writing tickets or taking people to jail. They don’t need a lecture and don’t you dare ruin this reputation we’ve developed by treating our citizens like sh&*.

And:

Face it, he screwed up and allowed her to get under her skin.

And:

Glad charges were dismissed, however, this is NOT how we conduct our business. This Troopers actions on this stop is a disgrace to our Dept. and every other Trooper in TX who handles their business in a professional way.

On the other side are the idiots, who are trying to tell the troopers that they are wrong about their own agency and their own standards of professionalism.  You see, other officers believe that it OK to issue a ticket or to take someone to jail because the subject pissed the trooper off, and the DPS troopers are saying that is not the case. They say that you decide what you are going to do before you make contact, based on the violation itself, and not what type of attitude that the driver shows.

The troopers are right. They don’t agree with these comments:

So you’ve never changed your mind in the middle of a traffic stop about writing a warning and decided to issue the citation or make the arrest instead? I know that I sure have. I respect you and all, but you and some of the others are just being ridiculous with all this name calling of Encinia here.

 

Look, I get that you guys have that violator contact criteria or whatever and that your agency took a bunch of political heat over this, but I think you’re being way too rough on the guy. Because of Bland’s poor attitude and non-compliance, Encinia changed his mind about issuing the warning and then decided to make the arrest. It happens all the time and it’s perfectly legit. No sense kicking the man while he’s down.

 

I agree a suspension would have served best in this case. But your colonel bowed to politcal [sic] pressure, which should worry everyone in your department. As to Mguest554. Get a clue this trooper did nothing criminally wrong here. This was a political prosecution and nothing more.

The fact that the troopers are willing to stand up and tell the other officers on PoliceOne that Encinia screwed up is a good sign. It means that there are still agencies out there who have officers that will look at the objective facts and take a position based on integrity, not based on a blue wall.

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*It is (or was) almost universally accepted that cops should not get a decree in Criminal Justice. One mistake on the street and the degree is useless, plus most police departments just care that you have a degree and could care less about what it is in.

†I don’t think that Encinia was ever going to be convicted.

‡DPS used to use different colored patches to designate the troopers assignment. Red was Texas Highway Patrol (THP) and the preferred assignment. Blue was Driver’s License and grey was License and Weights.

Scattershooting

In Missouri, Trooper Anthony Perry is pleading guilty to a misdemeanor for the negligent drowning death of Brandon Ellingson. Perry handcuffed Ellingson while in a boat on the lake and did not use the right life jacket, nor did he properly put the one he used on Ellingson. Ellingson drowned. Perry faces a maximum sentence of six months in jail and could receive probation. He was originally charged with felony manslaughter. The State of Missouri settled with the family for $9 million to avoid a lawsuit.

In Louisiana, the family of Alton Sterling is suing the Baton Rogue police officers who shot and killed Sterling in a confrontation caught on cellphone video. Both the FBI and local authorities have thus far declined to prosecute Officers Blaine Salamoni and Howie Lake II. The lawsuit alleges that Salamoni pointed his gun at Sterling’s head and threatened to kill Sterling before Sterling started to resist. Based solely on the video, which does not show any threat by Salamoni, I had earlier stated that the shooting appeared to be justified.

In Texas, Fort Worth Officer Courtney Johnson was fired for shooting Craigory Adams with a shotgun for holding a barbecue fork. A criminal trial of Johnson resulted in a hung jury and the District Attorney declined to retry him. Johnson’s defense was that he accidentally shot Adams, a mentally challenged man, who had dropped the fork and gone to his knees, as instructed.

Also in Texas, former state trooper Brian Encinia‘s perjury charges were dropped by agreement after Encinia surrendered his peace officer license. Encinia was the trooper who arrested Sandra Bland before her jailhouse suicide, and who prosecutors believed had lied on his report of the arrest. Without a peace officer license, Encinia cannot work in Texas as a police officer.

In Utah, FBI Special Agent W. Joseph Astarita was indicted for lying to federal investigators. Astarita, a member of the FBI Hostage Rescue Team, is believed to have fired at LeVoy Finicum‘s truck during the roadblock in which Finicum was later shot and killed while reaching for a gun. Apparently no one would ‘fess up to firing the shots, and video showed Astarita picking up what is believed to be shell casings at the scene.

In California, Sacramento Police Officer John Tennis has been given a letter notifying him of the department’s intent to terminate him for the shooting death of mentally ill Joseph Mann. Mann was armed with a knife and was acting erratically. The other officer involved, Randy Lozoya, retired on April 1st. It is not known if the retirement was related to the investigation, and will not be known, due to the California confidentiality laws.

Simple Justice’s Rebuttal, My Response

At Simple Justice, Scott Greenfield points out some issues with my post on police officers being acquitted or receiving a mistrial due to a hung jury. On part of it, Scott’s correct. Juries and judges do give police officers the benefit of the doubt over your run of the mill defendant, whether the officer is on trial or testifying against your client, the defendant. That’s not the point of my post, but I’ll address it too. It’s about mindset and perception, about changing the way that the public thinks, and that doesn’t happen overnight.

The public tends to trust the police, to view them with a favorable eye. That’s natural. Police are the people you call when someone is trying to hurt you or trying to take your stuff. People tend to like the people that keep them from getting hurt or who keep their stuff from getting stolen (or who recover the property that was stolen). You’re not going to change that mindset, especially when compared to the people who are being tried for hurting other people or for stealing other people’s stuff.

Right now, the image of a cop on trial is not a common one, it’s rarely seen. That’s changing because the explosion of video is forcing the change. It allows the public to see what actually happened instead of a narrative crafted by the police, or as Scott said:

[W]ho are you going to believe, a brave, hero cop or some scumbag criminal mutt?

That’s how the public views it right now, but it’s changing. In Oakland, the voters created a new police commission to oversee the police department, a department that has been rocked with scandal after scandal. The Seattle City Council strengthened the civilian oversight of the police department after an officer-involved shooting and a federal consent decree over the use of excessive force. Even Chicago, a notorious hotbed of police cover-ups is at least making noise about reforming the system.

These changes don’t happen overnight. A few years ago, Wisconsin became the first state to require outside investigators for officer-involved deaths. More and more, this is catching on in other jurisdictions. Here in North Texas, an outside investigation has begun after a local police department refused to release video of their officers repeatedly applying a Taser to the testicles of a teenager on LSD until the teen died.

When more and more bad officers show up in the public view, then the public starts to call for accountability. That’s when you’ll start seeing more officers convicted, not only for homicide, but for beat-downs, for falsifying reports and evidence, for misconduct in general.

Scott knows that the law doesn’t change rapidly. Justice Sandra Day O’Connor once commented on the turtles that were at the bottom of the columns at the Supreme Court:

They’ve got turtles around the bottom, holding up the rest of it. That’s like us on the Court. We’re slow and steady, and we don’t move too fast in any direction.*

That’s how change is going to be. Slow. It will take time and bad facts to make new law, to disallow cop’splaining, to change the criminal law application of a rule meant for civil cases (Graham v. Connor), and to treat cops like everyone else.

I believe that it will happen simply because there is too much video out there now. The police don’t control the narrative anymore. And when it comes out, the public wants accountability. Does anyone think that Slager would have taken a federal civil rights violation plea if not for the cellphone video? Or that Yanez would have been charged without the video of Diamond Reynolds?

Scott, this is progress. That’s the only point I’m making, not that it is right that works better for cops, but that it works better for the people, in hold cops accountable.

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*Jeffery Toobin, The Nine: Inside the Secret World of the Supreme Court 113 (2008) (quoting J. O’Connor).