Response to Patterico and Jack Dunphy

Wednesday, July 29th, 2009

The LAPD officer who writes under the pseudonym Jack Dunphy and blogger and prosecutor Patterico have each put up posts taking issue with my Reason colleague Brian Doherty’s and my criticism of one of Dunphy’s posts at National Review Online. Doherty and I both summarized Dunphy’s post to say that Dunphy believes the lesson from the Henry Louis Gates affair is that anyone who asserts his constitutional rights when confronted by a cop risks being shot. Patterico and Dunphy both say Doherty and I misread Dunphy.

If Dunphy didn’t intend for that to be the point of the post, he should retract it. Because it’s difficult to interpret it any other way. Here is the meat of Dunphy’s post:

And now we are told, in a further attempt at damage control, that the Gates arrest can serve to educate all those mouth-breathing cops out there who may yet stumble into an unpleasant encounter with some other Ivy Leaguer. It’s our hope, said Gibbs, invoking that insufferable locution that one hopes will soon fade from common usage, that the Gates arrest can be “part of a teachable moment.”

So, since the president is keen on offering instruction, here is what I would advise he teach his Ivy League pals, and anyone else who may find himself unexpectedly confronted by a police officer: You may be as pure as the driven snow itself, but you have no idea what horrible crime that police officer might suspect you of committing. You may be tooling along on a Sunday drive in your 1932 Hupmobile when, quite unknown to you, someone else in a 1932 Hupmobile knocks off the nearby Piggly Wiggly. A passing police officer sees you and, asking himself how many 1932 Hupmobiles can there be around here, pulls you over. At that moment I can assure you the officer is not all that concerned with trying not to offend you. He is instead concerned with protecting his mortal hide from having holes placed in it where God did not intend. And you, if in asserting your constitutional right to be free from unlawful search and seizure fail to do as the officer asks, run the risk of having such holes placed in your own.

When the officer has satisfied himself that it was not you and your Hupmobile that were involved in the Piggly Wiggly heist, he owes you an explanation for the stop and an apology for the inconvenience, but if you’re running your mouth about your rights and your history of oppression and what have you, you’re likely to get neither.

Emphasis mine. Patterico and Dunphy argue that Dunphy’s “lesson” here applies only to the specifics of his hypothetical—that the only time he meant to imply that you risk getting shot for asserting your rights is in the limited circumstance that an officer is looking for an armed, dangerous felon, and you happen to fit the very specific description of said felon given to police. I can’t speak for Doherty, but I stand by my original characterization of Dunphy’s post, for several reasons.

First, if this was Dunphy’s point, it’s unclear why he would invoke it in response to the Gates case, where there was no armed robbery, no getaway car, and no specific description of any unusual characteristics. Either he meant for his “lesson” to be applied more broadly, or his entire post was a red herring.

Second, as emphasized in the excerpt above (a portion that Patterico neglected to include in his post*) Dunphy explicitly sets up the hypothetical by stating that its lesson should be taken to heart by “anyone else who may find himself unexpectedly confronted by a police officer.” In other words, not just people driving 1932 Hupmobiles.

Third, Dunphy was responding negatively to the idea that the “teachable moment” in all of this ought to be for the police to be more cognizant of our rights, and not make rash arrests or employ racial profiling (we now know of course that the latter most likely didn’t play a role in the Gates arrest). Dunphy’s counter to that sentiment clearly seems to be that if there’s a lesson in the Gates arrest, it isn’t for cops, it’s for everyone else, and the lesson is to avoid “running your mouth about your rights and your history of oppression” when you’ve been confronted by a police officer. Again, to say that Dunphy only intended for that lesson to apply in the very limited scenario in his hypothetical would completely ignore the hypothetical’s setup, as well as the national discussion that inspired him to put it up in the first place.

Fourth, even within Dunphy’s hypothetical, the innocent driver of the Hupmobile has no idea why he has been pulled over. He doesn’t know about the armed robbery, or that the getaway car resembles his own car. This is precisely Dunphy’s point. He’s arguing that you can’t possibly know what’s going on in a police officer’s head when he stops you or confronts you. You can’t know what circumstances led him to stop you. So you’d best just shut up and submit, even he asks you to do something that you aren’t obligated to do under the Constitution. Dunphy’s using his unlikely hypothetical to plant the threat that any noncompliance with an officer’s demands may end with him shooting you. Put another way, because you can’t possibly know the reasons why the officer has stopped you, giving lip about your rights may well endanger your life.

Finally, I’d add that I, Doherty, and L.A. Times editor Paul Thornton (also mentioned in Patterico’s post) were hardly the only ones who interpreted Dunphy’s post this way. Dunphy wrote something rash and provocative (and, frankly, pretty outrageous). He now wants to retreat to a very narrow interpretation of his hypothetical to attack the people who called him on it. The problem for Dunphy is that such an interpretation really makes no sense given the context in which he wrote it.

(*Note: Patterico insists he included this portion of Dunphy’s post in his initial post.)

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123 Responses to “Response to Patterico and Jack Dunphy”

  1. #1 |  Fluffy | 

    Brad and Alex,

    Go fuck yourselves.

    There was absolutely no mischaracterization of Dunphy’s original statement.

    Dunphy wrote “If you aggressively assert your Constitutional rights and don’t do as the officer directs, you might end up full of holes.”

    If the officer directs me to anwer questions and I aggressively decline to do so, that constitutes aggressively asserting my Constitutional rights and not doing as the officer directs.

    If the officer directs me to open my trunk and I aggressively decline to do so, that constitutes aggressively asserting my Constitutional rights and not doing as the officer directs.

    That means that by Dunphy’s original statement, I would be an unreasonable fool if I did not act as if I could be shot for doing either of these things.

    In subsequent posts within the thread, Dunphy added more content to his original statement, saying [paraphrased], “I didn’t mean things like that, I meant things like refusing to get out of the car or reaching for a weapon and stuff”. That’s all well and good, but that’s not what he WROTE.

    You may want to say, “Only a moron would not know what he meant before he clarified it,” but we are under no obligation to try to torture the guy’s words into a form where they make sense. He wrote what he wrote and he got called on it.

  2. #2 |  anonymous | 

    SJE @ July 29th, 2009 at 11:28 am: “In a sense he is right about thoroughness and people not listening to libertarians. Well reasoned, well thought out arguments take time to read. Especially when they challenge prior thinking (like don’t talk back to the police). Most people do not have the attention span beyond the 30 sec news story.”

    This is why Radley’s blog posts, from police professionalism to SWAT raids, should be made into short videos. The folks who produce Reason TV ought to be able to do this.

    Just think how much attention a video enactment of a SWAT team taking down wheel-chair bound Richard Paey, or Fairfax police murdering unarmed gambler Sal Culosi, would get.

  3. #3 |  Taktix® | 

    I will point out that Patterico, in response to an email, said his server filter is overly strict and apologized for my posts not going through.

    Just to clear the air…

  4. #4 |  Radley Balko | 

    Brad, Alex:

    What Fluffy said. Don’t let the door hit you on the way out.

    I didn’t dishonestly “report” anything about Dunphy. I commented on a blog post he wrote, and linked to it so you could go read it and interpret it yourselves. You may disagree with my interpretation. That’s fine. It’s an interpretation that was shared by a hell of a lot of other people, including conservative bloggers like James Joyner. Your attempt analogize this to the actual reporting I do is crap.

    Alex, I post links to 10 or more stories per day. I don’t have time to do my own reporting on everything I link to. Mostly because I spend my days doing actual reporting on other stories. In both of the stories you mentioned, I posted subsequent links to the corrections or to critiques of those stories once they were brought to my attention. Blog for any length of time, and you’re eventually going to link to something that later turns out to be false, or misreported. Again, I had no hand in reporting either of those stories. And I posted links to corrections/clarifications when they were published. To ask any more is to ask that I not post or discuss any news story I haven’t personally verified with my own reporting. Which is ridiculous.

    As for my politics, if you think I’ve been overly critical of Republicans and haven’t criticized Democrats then you haven’t been reading very carefully. That said, I have no intention of trying to achieve some magical 1:1 balance of critical posts of either party. I’m sorry if you’re unhappy with the balance. Actually, no I’m not. I don’t really care.

    If all of this isn’t satisfactory for you, go find other blogs to read. Oh, and Brad, my traffic is up significantly in the last year, both here and the traffic to my stories at Reason. In the last month I’ve been favorably linked by a number of right-of-center sites, including Volokh, Oustide the Beltway, First Things, The Weekly Standard, and National Review. And yes, if lefties want to read me and support my work, I’m more than happy to welcome them, too.

  5. #5 |  JS | 

    Its a good thing they can’t taze us through a computer screen!

  6. #6 |  Scott | 

    You may be as pure as the driven snow itself, but you have no idea what horrible crime that police officer might suspect you of committing. You may be tooling along on a Sunday drive in your 1932 Hupmobile when, quite unknown to you, someone else in a 1932 Hupmobile knocks off the nearby Piggly Wiggly.

    Ahhhh yes. The dreaded and oft-occurring “My Cousin Vinny” mistaken identity crime scenario.

    *rolls eyes*

  7. #7 |  Patterico | 

    “In both of the stories you mentioned, I posted subsequent links to the corrections or to critiques of those stories once they were brought to my attention.”

    How about posting a correction of the error you made in this post, which error I have already brought to your attention?

  8. #8 |  Taktix® | 

    “And yes, if lefties want to read me and support my work, I’m more than happy to welcome them, too.”

    What about us libertarians?!?

    Radley?

  9. #9 |  Mike Toreno | 

    “Third, Dunphy was responding negatively to the idea that the “teachable moment” in all of this ought to be for the police to be more cognizant of our rights, and not make rash arrests or employ racial profiling (we now know of course that the latter most likely didn’t play a role in the Gates arrest).”

    I don’t agree that racial profiling didn’t play a part in the Gates arrest. We now know that the police report in the case was all lies. We know that the police lied on the 911 caller and said she mentioned two black men with backpacks when we know she said two men with suitcases, she didn’t know if they were having trouble with the door or not.

    Why did Crowley’s false police report put out of character words in Gates’s mouth that reflected a white person’s conception of what black slang should sound like? “I’ll talk to your mama outside”? Give me a break.

    Why didn’t Crowley just leave once he got Gates’s identification? The only report we have of what happened inside the house, which we know is not all lies, is Gates’s report, which makes a great deal of sense and fits in with the facts. Gates says that when he gave Crowley his ID, he believes Crowley was unpacking his preconceived narrative, and that view of it makes sense, and it’s hard to explain Crowley’s continued presence in the house in any other way. But it is explained if Crowley was experiencing cognitive dissonance – came in with one expectation, was presented with the true explanation which conflicted with the expectation and was hard for him to accept and then took time, while throwing his weight around, letting the explanation sink in.

    Gates’s analysis presents a plausible reason why Crowley took so much time for the explanation to sink in.

    Why didn’t Crowley hand over his ID card when asked? That aspect of it maybe isn’t racial profiling, but it could easily have been racially motivated, on the idea that black people aren’t entitled to the same courtesy as white people.

    The most immediate explanation of Crowley’s conduct is simply a disdain for the rights of the citizens and a corrupt desire to use his authority to serve his own ego, but there’s plenty of support for the that racial considerations played a part in it too.

  10. #10 |  Mike Toreno | 

    “The only report we have of what happened inside the house, which we know is not all lies, is Gates’s report”

    should be

    “The only report we have of what happened inside the house, which we do not know to be all lies, is Gates’s report”

  11. #11 |  Quote of the Day • CrazyDrumGuy | 

    […] (via) […]

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  13. #13 |  Andrew S. | 

    Patterico, screw you. Seriously.

    Between law school and taking (and passing, thank you very much) three different state bar exams, I know hypotheticals. I know that every single word in a hypothetical means something. So stop with the “oh, he didn’t mean that! Just look at this section of what he said!”. No. Every single word in there, to me, means something, and it’s pretty damn obvious what he was trying to say.

  14. #14 |  ASPECTRATIO | 

    #113- Andrew S., be kind. After all, both ‘Patterico’ (an ADA) and ‘Jack Dunphy’ (a cop) are, in the end, just government employees. Back pedding, obfuscation and parsing are SOP when they get defensive.

  15. #15 |  Brad | 

    Balko said, “Brad, Alex: What Fluffy said [Go fuck yourselves].”

    Classy.

    “Don’t let the door hit you on the way out.”

    Instructive as to why the Libertarian Party has remained a pathetic debating society, favoring cranks and zealots while gaining no ground. You would rather see someone as an enemy than recognize an ally.

    What a shame. Radley Balko jumps the shark.

  16. #16 |  An Exercise for the Reader § Unqualified Offerings | 

    […] Yglesias also writes about the Occupation. Authoritarian-blogger Patterico alleged that everyone was taking the poor cop’s blatant threats “ out of context.” I think his […]

  17. #17 |  Patterico’s Pontifications » Balko Tries to Prevent Patterico from Reading Him | 

    […] the error: in a post that he put up both on Reason and his personal blog, Balko suggested that I wasn’t being straight with my readers, contending that I […]

  18. #18 |  Bozoer Rebbe | 

    There’s a popular YouTube video by Prof. James Duane titled, “Don’t Talk To The Police”,
    http://video.google.com/videoplay?docid=-4097602514885833865
    because police are looking to arrest someone and your innocent behavior might fit into a picture of circumstantial evidence.

    It’s interesting that Dunphy’s example, you just might happen to be driving the same kind of car as a suspect, is exactly a reason given by Prof. Duane for not answering police questions.

    Police arrest people. Prosecutors like Patterico work to imprison those that the police arrest. Sometimes justice takes place.

    BTW, Dunphy likes to get some kind of credit as a maverick within the LAPD as though he’s telling tales out of school and that his career might be harmed if he wasn’t pseudonymous, but I think there’s some cowardice in his NRO column. But then any cop that thinks the thin blue line is more important than going public with police misconduct is a bit of a coward.

  19. #19 |  Frank Furullo | 

    You guys keep at it. You are just one more toke from having it all figured out. Keep the tin foil on tight, crank up the Dillon and keep ignoring your moms demand to move out of the basement.

    Just a little thing, if I think you are an armed violent criminal, like Oh say a residential burglar and you choose to use your constitutional rights by refusing to show me your hands, then decide to really show me you know your rights by reaching quickly into your baggie jacket, well, reality is gonna suck for you real fast, you might not even make it to the next frat party.

  20. #20 |  Cynical in CA | 

    #90 | Caby Smith — “I think you meant to say that the state has the same “freedom” we do… not the right.”

    You are correct that I erred. What I should have written was that the State has the “power.” That’s a common error in debating federalism or “state’s rights.” States don’t have rights, they have powers. Only individuals have rights. My bad.

    “… you state that “Freedom and limitation of the State are a discovery process. There are no absolutes.” I think this is contrary to your point in that there are “absolutes” (for the most part) …”

    The absence of prior restraint means that freedom to act is absolute. However, you are correct, that beyond the initial acts and consequences, when the courts try to settle the differences, that is where the balance of justice is supposed to enter the equation and absolutes turn into guidelines, restrictions and laws.

    “it’s just that in the heat of the moment, neither “we” nor the “state” are bright enough, and in some cases, moral enough to make the right decisions.”

    Well, I’ll go ahead and state my position that the State is -a priori- immoral. I advocate a free market in everything. I’m an anarchist. The only moral way to discover truth is through peaceful individual interactions, the more the better.

    “Your point, I assume, is that we are all human, and for that reason we should all be a little more polite, considerate, and knowledgable about the law so we don’t all shoot each other.”

    Not exactly my point, but I can’t argue with that. Well put. My point was that there is theory and there is reality, and for now we’re stuck with a rather unpleasant reality and it is prudent for peace-loving individuals to maintain the peace if they value their lives.

  21. #21 |  Patterico’s Pontifications » Balko’s Defense: I Don’t Have Time for Accuracy | 

    […] previous comment, commenter fluffy had said: “Brad and Alex, Go fuck yourselves.” Balko echoed the sentiment: “Brad, Alex: what fluffy said.” All this happened in the same comment thread where, in […]

  22. #22 |  anonymous | 

    #119 | Frank Furullo | July 31st, 2009 at 7:08 pm: “Just a little thing, if I think you are an armed violent criminal, like Oh say a residential burglar and you choose to use your constitutional rights by refusing to show me your hands, then decide to really show me you know your rights by reaching quickly into your baggie jacket, well, reality is gonna suck for you real fast, you might not even make it to the next frat party.”

    Frank,

    If I think you are an armed violent criminal, like Oh say a police impersonator who just happens to have some red and blue flashing lights behind the windshield of an otherwise normal looking car, am I as justified in using force as you are to defend myself?

    Just asking.

  23. #23 |  Steve Verdon | 

    That’s a knock on Steve Verdon; you just didn’t get the joke. Explanation here.

    Somebody is looking like an obsessive compulsive nutjob there Patterico. I go away for a long weekend and come back and find out you are still hung on this. Most amusing.