The one crime for which punishment without trial is appropriate

[Donald Ian Rankin]

(A post vaguely inspired by the recent ex-police spree killer in LA, and vaguely by the debate about drone strikes).



I believe that there is one, and only one, criminal offence for which punishment without trial is sometimes appropriate.

I also believe that it's the only offence for which capital punishment is ever appropriate.

Not murder, or rape, or kidnapping, or grand fraud - how heinous the crime you are *accused* of is has no bearing on your right to a trial <1>.

Rather, resisting arrest.



I think a little thought makes this obvious - it's not possible to try people if you can't catch them, and if they don't consent then the only way you can catch them is by use of force. So either you punish people who resist arrest without trying them, or you don't have a legal system at all.

Of course, even when someone *is* resisting arrest, that only justifies minimum necessary force, which will never be deliberate killing unless there are no forms of potentially non-lethal force that could be brought to bear without endangering others.

The debate about "does Obama have the authority to authorize the use of lethal force against American citizens on American soil" puzzles me, because the answer is so obvious. It's not even a hypothetical - the police semi-regularly do intentionally and openly <2> use lethal force against e.g. hostage takers, and I don't think anyone worth listening to would seriously claim they shouldn't.

In my view, the serious and difficult debate is about what constitutes resisting arrest - does, for example, hiding out with a group Taliban fighters in the mountains of Afghanistan count? - and about what constitutes "minimum necessary force".




<1> This is sort of a lie - if someone is resisting arrest by fleeing rather than by fighting, and the choices are "shoot at them" or "let them escape", then the nature of the charge probably is relevant - I don't want to see fleeing pickpockets gunned down, whereas if a suspected serial killer runs I'd like the police to shoot at them. But if you're not resisting arrest, it's true.

<2> Of course, it is widely and plausibly alleged that the police, army etc also semi-regularly intentionally but covertly use lethal force when it isn't necessary or officially warranted. But "what do the security forces do that they shouldn't" is a largely orthogonal debate to "what should the security forces do?".

[geek tragedy]

1. The constitutional standard for use of force in apprehending or otherwise incapacitating someone is

the 4th amendment (searches and seizures) not the due process clause.

It comes down to a reasonableness examination balancing the means used versus why they need to take the person into custody or prevent him from taking further action.

Shooting a shoplifter running away from a store with a pair of headphones? Not reasonable.

Shooting a guy who's well-armed and firing at people in a crowded area? Reasonable.

[leveymg]

2. I'll never forget seeing an athletic young man shot in the back by a fat Sergeant, for no crime

Last edited Thu Mar 7, 2013, 11:28 PM - Edit history (1)

other than running away from a police sweep of a drug area. You would call that resisting arrest, and apparently believe it to be just. I don't.

[Donald Ian Rankin]

3. Please, please, read before you respond.

"Apparently" doesn't cut it, when I've specifically said that I *don't* want to see that. The only possible conclusion is that you're responding to what you want me to have said, rather than what I actually did.

[leveymg]

6. You said you thought that fleeing pickpockets shouldn't be shot, but weren't very

specific, otherwise.

I would disagree with your basic premise. IMO, resisting arrest, in itself, does not justify the use of police violence, unless it is to prevent imminent harm to the officer or the public.

[csziggy]

4. How about when police lie about resistance?

Even when the police hold evidence that proves there was no resistance to arrest, police lie about it. Why should that mean that the accused not get a trial?

Jury Finds Occupy Wall Street Protester Innocent After Video Contradicts Police Testimony
By Nick Pinto Fri., Mar. 1 2013
In the first jury trial stemming from an Occupy Wall Street protest, Michael Premo was found innocent of all charges yesterday after his lawyers presented video evidence directly contradicting the version of events offered by police and prosecutors.
<SNIP>
In the police version of events, Premo charged the police like a linebacker, taking out a lieutenant and resisting arrest so forcefully that he fractured an officer's bone. That's the story prosecutors told in Premo's trial, and it's the general story his arresting officer testified to under oath as well.

But Premo, facing felony charges of assaulting an officer, maintained his innocence. His lawyers, Meghan Maurus and Rebecca Heinegg, set out to find video evidence to contradict it. Prosecutors told them that police TARU units, who filmed virtually every moment of Occupy street protests, didn't have any footage of the entire incident. But Maurus knew from video evidence she had received while representing another defendant arrested that day that there was at least one TARU officer with relevant footage. Reviewing video shot by a citizen-journalist livestreamer during Premo's arrest, she learned that a Democracy Now cameraman was right in the middle of the fray, and when she tracked him down, he showed her a video that so perfectly suited her needs it brought a tear to her eye.

For one thing, the video prominently shows a TARU cop named Bosco, holding up his camera, which is on, and pointing at the action around the kettle. When Premo's lawyers subpoenaed Bosco, they were told he was on a secret mission at "an undisclosed location," and couldn't respond to the subpoena. Judge Robert Mandelbaum didn't accept that, and Bosco ultimately had to testify [Correction: Bosco didn't take the stand; he had to appear at the District Attorney's office for a meeting with Maurus and prosecutors. Judge Mandelbaum accepted that Bosco would likely say on the stand what he said in the meeting, and didn't require him to testify.] Bosco claimed, straining credibility, that though the camera is clearly on and he can be seen in the video pointing it as though to frame a shot, he didn't actually shoot any video that evening.

Even more importantly, the Democracy Now video also flipped the police version of events on its head. Far from showing Premo tackling a police officer, it shows cops tackling him as he attempted to get back on his feet.
More: http://blogs.villagevoice.com/runninscared/2013/03/jury_finds_occu.php

It's crap like this by the cops why EVERY case deserves a chance at trial.

[Donald Ian Rankin]

11. I think that we're talking at slightly cross purposes.

I'm not talking about people being tried, convicted and legally punished for the criminal offence of "resisting offence" ( a poster downthread makes the fair point that I was conflating "justifiable use of force" with punishment), I'm talking about using minimal necessary force - which in some cases may be shooting to kill - in order to arrest people in the first place.

Certainly, I agree with you that formal punishment for resisting arrest should have the same legal safeguards as any other crime.

[csziggy]

14. But police too often subvert the law to justify their actions

I think I understand that you are talking about "the minimal use of force" where the person being apprehended could be considered clearly guilty - as in the Dorner care. But even in that kind of case, I would not want police to be relieved of the scrutiny of the law.

If law enforcement action is justified a review will show that. But if it is not, police need to know that their actions will be subject to examination and they need to know that they are not above the law.

In the case I cited, the police were willing to perjure themselves, to obstruct justice, and to hide evidence in order to make a charge of resisting arrest even when there was no other crime involved. I have yet to see any story indicating that the officers committing those offenses have been charged with any crime.

Law enforcement should be held to a higher standard but in actuality they are too often given a get out of jail free card even when their actions are blatantly illegal.

[Gregorian]

5. Darn, I thought you going to say starting a war without being provoked by an imminent threat.

[msanthrope]

7. Tennesesse vs. Garner is the SCOTUS decision that answers your questions. nt

[Donald Ian Rankin]

10. Thank you, that seems about right. Now, can you point that out to Rand Paul, please? N.T.

[Iggo]

8. KILL! KILL! KILL!

[randome]

12. Settle down, Arlo. You're still going to be drafted.

[aikoaiko]

9. I think you're conflating justifiable use of force with punishment.

There are fairly clear rules about using force to stop a criminal. Even when they resist arrest the force must be proportional to the resistance.

[Donald Ian Rankin]

13. Yes, I think that's a fair criticism.

Convicting and imprisoning people for resisting arrest is clearly a completely different thing to arresting them forcibly.