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The violence inherent in the system - Office of Naval Contemplation

Nov. 21st, 2011

01:02 pm - The violence inherent in the system

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I don't know enough about the details of each particular incident, or about policing tactics and procedures in general, to judge with confidence whether any particular police action against Occupy protesters involved excessive force. It's certainly plausible that they could and should have used less force in many cases, and I've seen video and heard firsthand account of several incidents where I strongly suspect the police used far too much force, far too soon. But that's not what this post is about. Instead, it's about the more general question of the legitimacy of the use of force by the police.

There are many ways to describe the role of government, but just about every detailed description I've encountered prominently features the organized use of force. Indeed, that's often considered the heart of very definition of a government: an organization which dominates the use of force over a certain jurisdiction. Governments do lots of things for lots of reasons, but underlying all of it is the threat of coercion: laws that are optional are requests, not laws; and taxes that are optional are suggested donations, not taxes. If you refuse to obey laws, if you refuse to pay taxes, somebody's got to come over there and make you, and that somebody is usually the police.

Suppose I come home to find an intruder in my living room (*). I've got a few options. I could offer him a beer and let him make himself at home, but that's rather unlikely. I could ask him nicely to leave, but what if he refuses? What if he tells me it's now his living room, not mine? At that point, I could simply acquiesce, but again, that's rather unlikely. I could either hit him with a crowbar until he goes away, or I could call Officer Friendly to haul him away in handcuffs.

(*) For this hypothetical, assume I have good reason to be confident he is not an invited guest of my roommate, nor is he anyone else with a legitimate reason to be there without my prior knowledge and explicit permission.

Those last two options are fundamentally equivalent. I've got a piece of paper on file with the County of Santa Clara confirming that that living room is in fact "mine". The government of the State of California has passed laws saying that assuming that paper's there and in good order, I have the right to decide who has access to my living room, and that that right justifies the use of force to eject intruders. Both the legal right to call Officer Friendly to haul the intruder off in handcuffs, and the legal right to hit the intruder in the face personally, stem from the laws of the State of California.

The intruder wasn't being violent. He was just sitting on my couch, watching my TV. It was I who initiated the use of force, or it was Officer Friendly at my behest, depending on which course of action I chose. But I'm fairly confident in either case that most independent observers would fault the intruder, not the actual initiator of the actual violence.

Now, suppose instead that one day, Officer Friendly knocks on my door and tells me that the law has changed, and the house is his now, not mine, and would I kindly clear out? Assuming the law were indeed on his side, he's got the legal right to drag me off in handcuffs if I refuse, and I do not have the legal right to bring forth my trusty crowbar and try to stop him. He probably does not have the moral right to kick me out, or at the very least the State didn't have the moral right to order him to do so, but even so it'd be highly questionably for me to respond with violent rebellion rather than appealing to the courts or the legislature.

If we go even further in our contrived hypotheticals, and Officer Friendly shows up not to Eminent Domain my house, but to haul me off to the gas chamber because I sing off-key, then he's clearly in the wrong morally, and I'd be clearly in the right to resist by any means at my disposal.

All of these are contrived examples for illustrative purposes, not in any real way a good analogy for police actions against Occupy encampments. I'll get to that later. The point of the examples being that the police are the violence inherent in the system, that it is their job to use force to ensure compliance with the rules the government makes, and that there's a fairly strong (but not infinite) presumption that they've got the moral right to use reasonable force to enforce those rules, and that the legitimacy of the use of force by the police depends largely on the legitimacy of the laws.

An important aspect of this is the moral legitimacy of the government to make the laws. In Hypothetical 2, we gave Officer Friendly a certain amount of leeway for enforcing a valid but immoral law because that law came from the State of California. But would look very different if we replace Officer Friendly with Don Vito, my friendly neighborhood mob boss, or with an officer of the Coldstream Guards acting on behalf of Queen Elizabeth. Likewise if there were a military coup in Sacramento and Officer Friendly were acting on behalf of the California Junta.

Another important factor is the appropriateness of the amount of force used to the situation, but that depends not only on the violation itself, but also on what the law-breaker does to escalate the situation. If I've driving 80 mph when the speed limit is 65, it'd be clearly unreasonable for Officer Friendly to call in a drone strike to blow up my car. However, it'd be quite reasonable for him to order me to pull over so he can verify my identity and hand me a ticket. If I neither pay the ticket nor get it overturned in court, the situation escalates, and I may wind up hauled away in handcuffs to serve a brief jail sentence in lieu of the fine. Likewise, if I speed off instead of pulling over, that also escalates the situation, and there's quite a bit more force that the police will deploy to stop me in a high-speed chase (depending on the situation, they may do so immediately on the spot, or they may simply let me go, then look up where I live based on my license plate number).

In the case of the Occupy protests, there are any number of minor laws being broken by the protesters and their encampments. The violations are relatively minor, but the laws being violated exist for good reasons. In most jurisdictions, you're not supposed to hold any large event on public property without getting a permit. There's a few reasons for this: to make sure the event isn't too disruptive to the primary intended use of the property in question (streets for traveling, parks for recreation, etc), to mitigate disruption to nearby private property from noise and other side-effects of the event, to make sure somebody takes responsibility for keeping order and coordinating with the police on how to deal with the occasional unruly yahoo, to make sure someone buys insurance to reimburse the city for any damage done by the event and its participants, to make sure there's adequate toilet facilities for the event, etc.

By and large, the Occupy encampments haven't been doing this. The authorities generally tolerated the violations for a while, but eventually city governments started deciding that they wanted their parks and streets back. Building and maintaining parks and streets is expensive, and cities spend taxpayer money on this because they believe the parks and streets to be important amenities for the residents of the cities. And in several cases, some of the protesters have been unruly and harassing (shouting abuse at passers-by, barricading intersections, etc), or even violent. So to reclaim the streets and parks for their intended uses, various city governments have cops to tell the protesters to go away. Whenever the protesters didn't leave, then we saw the violence inherent in the system. Again, I'm fairly confident that in at least some cases, the police have resorted to too much violence, too quickly, and too indiscriminately, but if the police were justified in ordering the protesters to leave, then they were also justified in using at least some level of force to enforce that order when the protesters didn't comply.

The moral of the story is: the key word in "enforce" is "force". If it's unconscionable to use violence to enforce a given law against someone who's openly violating it and refusing to stop when challenged, then the law probably shouldn't be on the books.

Comments:

[User Picture]
From:rustycoon
Date:November 21st, 2011 11:13 pm (UTC)

The missing piece:

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I haven't seen anyone arguing that Occupiers aren't violating a truckload of ordinances and even state laws in the process of exercising their first amendment rights. Indeed, they are deliberately breaking such laws in order to create conflict that draws media attention. (This is, in fact, Civil Disobedience 101.)

The understanding is that when the police arrive with intent to enforce, the protesters will engage in non-compliance with police instructions up and until they are lawfully arrested.

The problem here is that the police are generally not enforcing the law, they're simply being violent.

When a police officer encounters someone breaking the law his duty is not to use force (as you suggest) his duty is to apprehend the perpetrator and bring them to the court system for a determination of the appropriate penalty, if any.

If/when an individual uses force to resist arrest, the police officer is responsible for applying force along a gradual escalation until they defeat resistance (unless there is obvious, immediate threat of harm originating from the perpetrator, at which point they escalate to an equivalent level of force).

Take UC Davis, for example. Those kids could have easily been ziptied and carted off. Their trials would have been astonishingly short. Instead, they get multi-million scoville pepper spray. That's not enforcement. That's the police deciding on the punishment - which is not their duty. The victims of police violence are innocent until proven guilty in a court of law. No such finding was present, therefore the use of force as punishment cannot be considered legitimate - period.

There wasn't even an attempt to arrest these kids. And this is not an isolated fact pattern - the police have generally abandoned arrest and apprehension and have moved directly to applying force-as-penalty.

Unless you want to call this a military action of reducing enemy assets and forcing them from the field of battle.

The missing piece in your analysis is, simply, the objective of the police using the force: force, for it's own sake is not a permissible use. Repelling legally innocent individuals is not a permissible use. Apprehending perpetrators for prosecution is, in fact, the only legitimate use of police force.

And before you say, "But there's too many of them to effectively prosecute!" Not. My. Problem.

If enough people are up in arms so as to overwhelm society's disorder containment systems, "then the law probably shouldn't be on the books."
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[User Picture]
From:maniakes
Date:November 21st, 2011 11:52 pm (UTC)

Re: The missing piece:

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Without knowing the full details of the incident, I'm inclined to agree that the cops at UC Davis should have tried to arrest the perpetrators first, and only used pepper spray if the perpetrators were resisting arrest and the choice was between pepper spraying and hitting people with billy clubs. Indeed, that's one of the incidents I was thinking of when I wrote "I've seen video and heard firsthand account of several incidents where I strongly suspect the police used far too much force, far too soon."

I disagree with your claim that an arrest isn't use of force. If I, as a private citizen acting without justification, were to slap a pair of handcuffs on you and shove you into the back of my car and drive you somewhere, I'd be guilty of assault at the very least. I do agree, though, that arresting alleged lawbreakers for trial should be the by-far preferred form for use of force by the police, for precisely the reasons you mention.
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[User Picture]
From:rustycoon
Date:November 21st, 2011 11:56 pm (UTC)

Re: The missing piece:

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Ah, I did not mean to suggest that arrest isn't use of force.

I meant to state that use of force absent intent to apprehend is not a legitimate police power except in circumstances where there is an immediate threat of harm to the officer or bystanders that originates with the perp.

Use of force to make an arrest is the proper course of the use of police power - but again, they must first ask the protester if they will go sit in the car quietly (most would, btw), or if cuffs will be needed, etc, etc.

Here in Boston, there have been arrests, generally only of protesters that have been making asses out of themselves, but there have been some. There was also some non-arrest force (though nothing like we're seeing in Oakland, Davis, New York, or Seattle), which I have a problem with.
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From:maniakes
Date:November 22nd, 2011 12:28 am (UTC)

Re: The missing piece:

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I'm not sure it's fair to say that it was punishment absent intent to apprehend. There were 52 arrests made at the UC Davis incident. My understanding is that the reason for the pepper spray was because the students in question were refusing to submit to arrest and were linking arms to make it harder for the cops to grab and cuff them. If this was indeed the case, the cops can still be reasonably criticized for escalating force too rapidly to break up the resistance to arrest: the resisting-arrest was passive, there were enough police on hand relative to the number of protesters that it's very unlikely that the police had a reasonable fear of being swarmed by the protesters if the crowd suddenly turned violent, and (as far as I know) there were no threats of violence made against the police, so the cops could and probably should have at least tried to wrestle the students apart and into handcuffs before escalating further to pepper spray.

I've only looked at one of the Oakland tear-gassing incidents in detail. In that particular incident, a large crowd pushed past a small group of riot cops. When the cops tried to grab and cuff one of the people pushing past them, the crowd reacted by surrounding the police and shouting abuse at them, and a few members of the crowd threw things at the police (not clear from the video what was thrown). At one point, the police tried to push their way through the crowd and leave, but they were pushed back by members of the crowd. A few minutes later, more police arrived and fired tear gas into the crowd. To me, the use of tear gas looks less like summary punishment and more like a defensive response to an imminent threat of violence. Video here.
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From:maniakes
Date:November 22nd, 2011 12:32 am (UTC)

Re: The missing piece:

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Whoops, wrong link to the Davis piece. I looked at the month and day, but not the year; that's a completely unrelated protest from 2009.

Correct article:
http://www.sacbee.com/2011/11/18/4065739/uc-davis-police-arrest-10-in-occupy.html

The actual number of arrests in last Friday's protest at Oakland was 10, not 52.
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[User Picture]
From:rustycoon
Date:November 22nd, 2011 01:34 am (UTC)

Re: The missing piece:

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Yeah, I'll confess: When I heard about Oakland I rolled my eyes and asked "Okay, and what did the protesters do?"

I'll grant that not all police departments, and not all officers, and not even all events to a given officer are incorrect uses of force.

But, for example, setting off flash bang grenades next to a guy whose skull you just caved in with a tear gas canister so as to prevent him from receiving medical care isn't cool.

The majority of stories hitting the news, however, are not of police acting gradually to make an arrest, they are of rapid escalation to the infliction of harm (and risk of death, remember you take your victim as you find him) upon legally innocent individuals. It is, therefore, incumbent upon you to be very specific as to what you mean by 'force' here. :)
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From:maniakes
Date:November 22nd, 2011 02:21 am (UTC)

Re: The missing piece:

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It is, therefore, incumbent upon you to be very specific as to what you mean by 'force' here. :)

That's the principle I was trying to illustrate with the speeding hypothetical.

But if you want specific, sure. Specifically, if protesters are violating park use rules, blocking traffic, or otherwise making an unlawful nuisance of themselves, I consider reasonable use of force by the police to run along the following lines:

1. Inform the protesters what they're doing wrong and ask them to stop.

2. If they don't stop, caution them that they'll be arrested if they don't stop.

3. If they still don't stop, approach individual protesters and warn them clearly, unambiguously, and personally they'll be arrested if they don't leave.

4. If the warning is refused or ignored, inform them that they're under arrest and ask them to come along quietly.

5. If they refuse to come along quietly, use just enough force to restrain and arrest them without putting the arresting officer in unreasonable danger. Usually, this will mean wrestling them out of the crowd and to the ground and cuffing them, but if they actively fight back rather than just passively resisting, it can be reasonable for the police to use more violent tools within their force continuum to overcome resistance and make the arrest.

6. In the case of large-scale organized violence (directed at the police or at bystanders -- a true riot), even more aggressive tools can be reasonable and necessary to protect life and property. The focus should be not on punishment and retaliation, but on interrupting an imminent threat of injury and destruction of property. Wherever possible, police should make every effort to identify individuals who are actively committing acts of violence and arrest and charge them.

7. Anyone who is arrested in steps 4-6 should be taken to an appropriate location (probably the local police station), identified, charged with an appropriate infraction (blocking an intersection, failure to move along, etc) or misdemeanor (disorderly conduct, resisting arrest, etc), given information on where and how to show up and contest the charges (including contact info for the public defender's office, when applicable), and either released on their own recognizance or allowed to make bail according to usual procedures for the charge being made.

The precise judgment of when to deploy which weapons within the force continuum in steps 5-6 is something I'm fairly fuzzy on: I know a moderate amount about police tactics and the tools within the force continuum, but not enough to proscribe with confidence an exact set of guidelines for which weapons and tactics to use under what conditions.
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From:rustycoon
Date:November 22nd, 2011 02:45 am (UTC)

Re: The missing piece:

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you and I are close enough, here, that I don't feel a need to yell at you for being Wrong on The Internet(tm). ;)

I'm pretty generous with leeway when it comes to #5 and #6. But I have yet to see numbers 1-4 being consistently used in the areas where there has been so much youtube footage coming out of.
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[User Picture]
From:maniakes
Date:November 22nd, 2011 03:06 am (UTC)

Re: The missing piece:

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I've seen a number of videos of the earlier stages of the list in a variety of incidents. In most of these videos, only steps 1-2 or 1-3 occur. In the videos I've seen of steps 5-6 occurring, they almost always start in media res, without context of what happened before. In any given incident, given the information I have available to me, it's plausible that steps 1-4 happened off-camera and only the "good bits" were recorded and uploaded, but it's also plausible that the police unreasonably skipped significant portions of steps 1-4.

If the former is the case, it's an argument for the police to set up their own cameras and make their own record of the entire event in context (they way most police departments now do for traffic stops with their dashboard cameras). If the latter is the case, it's a sign of something seriously wrong with either the way the police procedures are written or they way some individual officers are carrying them out (or failing to carry them out).
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[User Picture]
From:rustycoon
Date:November 22nd, 2011 03:32 am (UTC)

Re: The missing piece:

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It's also just a fact (and this is why I choose to blame departments, rather than officers) that riot/crowd management training in this country is for shit.
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