When we authorize local government to select, train and supervise our community police officers, what do we expect in return? It’s implicit in this exchange of governmental intrusion for security that our uniformed police will treat us fairly and respectfully. Implicit in this social contract is the precept that these officers will see the bigger picture and use their discretion wisely.
When the forces of a company of 25-30 year old police officers collides with a lone intoxicated and disorderly college kid, you would not expect officers to escalate the situation. We would not encourage our officers to use physical restraint, pepper spray, or similar uses of force as first line treatment for an obviously drunk young young man. Officers are charged with the privilege of telling us what to do when lawful circumstances permit it. They are expected and trained to defuse situations, for their safety as well as ours.
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However, too often, as Malcolm Gladwell wrote in “Blink”, police officers have a very difficult time “dialing down” adrenaline and exercising more patience in confrontations with citizens. Especially younger ones and minorities. As he told the story “7 Seconds in Brooklyn”, Gladwell illustrated the fact that most police officers will conclude that first impressions are correct impressions. Amadou Diallo was an unarmed 23 year old African immigrant who was gunned down by four NYC police officers. They were clearly on edge thinking he was the heavily armed serial rapist they were looking for. He wasn’t.
Gladwell calls it “rapid cognition”. This is the snap-decision making police officers make before logically thinking through their actions. When our brains seize upon an obvious but incorrect conclusion, it tends to be based upon race, gender and other presumptive stereotypes. Gladwell calls this “Thin Slicing” — our brains take a thin slice of the situation and our biases put that slice of information into our own context. From that context, we draw immediate conclusions and take action. This happens so much faster than the logical part of our brain. That is, patience and executive functioning at a higher level of awareness.
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Now, add adrenaline to “Thin Slicing” and you have a dangerous concoction in the hands of police officers. Add in some color of authority and wolf pack mentality, and that drunk, 165 pound, college freshman doesn’t stand a chance of avoiding this collision with law enforcement. Now, this is the moment where officers need to recognize their options, be patient, and defuse the situation. Using another Malcolm Gladwell title, I will refer to this point in time as the “Tipping Point”. Which way are the police officers going to push this encounter? They have discretion, authority and man power to ratchet it up or scale it down.
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Here’s what happens. I see it weekly. Too many police officers patrolling the streets of college campuses and popular bar areas are quick to escalate the situation with use of tone, inflection, volume, and physical gesturing. If you are working these areas, officers cannot expect young adults to stand still and behave themselves while in line to get into a bar. If an officer wants to create a situation, it’s pretty easy. Tell some drunk college guy to “shut up or your going to jail” in front of his friends and 50 other people. Naturally, the next remark is a choice word or two from the kid. Now the officer’s sense of pride has been aroused and it’s time to show this college punk who is the boss. Tipping point.
The kid is told to “come here”. He refuses. The officer and a few buddies goes and gets the kid. The kid, instinctively feels his rights being violated and gets testy and perhaps assumes a defiant stance against the officers. “I’m not doing anything wrong!”. He’s correct. But, in the eyes of the police, he’s fair game and things get a little bumpy. Now, some of the other kids in line start to yell out to the cops who have clearly abused their authority. Their training kicks in to get the kid away from the scene as quickly as possible to “secure” this mess they’ve created. Here comes the pepper spray. Down goes the kid, flat to the asphalt, arms twisted back in a position that he cannot do voluntarily. “Stop resisting” they yell. The kid shrieks in pain. He’s gagging, can’t breath, spitting out mucus from the cayenne pepper aerosol.
The kid is hauled to jail. A sergeant is called to the scene. Every use of force requires a special set of forms to be completed and reviewed by the brass at the police department. “He was going to hit me” or “he was combative” are the answers to the internal affairs detectives. “We charged him with assaulting us”, a 4th degree felony in Ohio. The kid has a bond hearing after sitting in the county jail for 50 hours. A bond is set, he’s released and his parents fly in from out of town to get a lawyer.
The client admits he was intoxicated. He admits he was disorderly. Both misdemeanors. He’s 165 pounds dripping wet, writes classical music, and is on academic scholarship in college. A felony conviction will upend his life. It is not expungeable because it is a crime of violence. He will always be a convicted felon.
This story is real. It happened. This is but one single example of this scenario we see. We had to move mountains just to get a misdemeanor. Misdemeanor assault. The deal is hanging by a thread. His father asks, “why can’t he plead guilty to disorderly conduct, or a lesser misdemeanor”. I couldn’t agree more. Why can’t he? “Because we never reduce felony assaults on police officers to misdemeanors” is what I am told by the prosecutor. “He’s lucky to be getting what he’s getting” I am reminded.
So, here we are. Being forced to accept misdemeanor assault, a crime of which he is not guilty. However, the risk of rejecting the offer and proceeding to a jury trial is too high. A business decision must be made. He has to accept the misdemeanor assault and all that goes along with it to get out of a situation created and escalated by one or two police officers. Once they used the pepper spray, my client was done. Physically and legally. Use of force must be justified. Here comes the assault on an officer accusation. In Ohio, in most states, that is a felony.
The tipping point. Is this the type of community policing we want. Is this a proper discharge of governmental authority? Was there no middle ground available? Two police officers weighing over 200 pounds each against one young man at 165 pounds requires pepper spray? Pepper spray leads to felony assault because my client is gagging, kicking and trying to wipe his eyes. An assault on a police officer. A felony.
Just as the officers were acquitted in the Diallo case, it is quite likely they will prevail in this case, too. We, the citizens, not only give these officers much discretion in the streets, we give them more deference when we are in the jury box. An unfortunate paradox.