Apropos of the post below, here’s a ruling from the D.C. Court of Appeals demonstrating just how powerless citizens are when accosted by police officers—even when the cops themselves are clearly in the wrong. What’s most troubling about the ruling is its mundanity. The law is established here. There’s really nothing to debate. It’s just a matter of the government rattling off the appropriate precedents.
The appellant is Terrance Crossland, who is asking the court to overturn his conviction on two counts of assaulting a police officer. Last April, Crossland and his cousin were approached by two D.C. Metro officers on patrol “to gather information about a rash of recent shootings and drug sales in the area.” Crossland was mowing his grass while smoking a cigarette. The police acknowledge that neither Crossland nor is cousin were doing anything unlawful. The two men were told to turn around, put their hands against a fence, and submit to a search. By both accounts, Crossland initially complied, then said, “Fuck this shit. I’m tired of this.”
Police say Crossland then elbowed one officer in the head, at which point he was punched, taken to the ground, kicked several times, and pepper sprayed. Both the trial court, the appeals court, and even the prosecution acknowledge that because Crossland was doing nothing wrong before the incident, it was illegal for the police to stop, detain, and search him. Nevertheless . . .
. . . as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) . . .
So even if the police illegally stop you, detain you, and beat you, you aren’t permitted to resist. Just roll over and take it. Submit.
But we aren’t done, here. Crossland, backed by more than one witness, denied at trial that he ever threw the alleged elbow that led to his beating. The trial judge didn’t believe him.
The court specifically credited Officer Baldwin’s testimony, noting that it was corroborated by the testimony of Officer Castan. The court explained that it did not credit appellant’s testimony or that of the witnesses he called because “[a]lmost all of them had a bias” and because it was “not credible . . . that the police were out that day, randomly beating people up for no reason” and that even if they were doing that, it made no sense “that they would beat up [appellant], as opposed to Mr. Womack, whom they had a history with” and had arrested the week before.
The court also points out that one of the officer could be heard over his radio shouting “Stop resisting,” a phrase that seems to be ingrained in the heads of D.C. Metro cops who want to dish out some punishment.
If you read this site with any regularity, you’re aware of the notion of contempt of cop, a charge that’s usually levied, adjudicated, and punished extra-judicially. It certainly does make sense that the cops would beat Crossland instead of his cousin if it’s true that Crossland said “Fuck this shit. I’m tired of this.” And both sides agree that he did. So to believe Crossland’s account of the altercation, it isn’t necessary to think “police were out that day, randomly beating people up for no reason.” You only need to believe that two cops patrolling a bad neighborhood—who by all accounts had shown themselves willing to violate the rights of the citizens of that neighborhood—were capable of administering excessive force if one of those citizens happened to mouth off. That isn’t so difficult to imagine.
The notion that the witnesses other than Crossland and his cousin are “biased,” but the cops aren’t, is also dubious. If Crossland didn’t throw an elbow, then he was illegally detained, then searched, beaten, and pepper sprayed for nothing more than mouthing off. That’s more than enough to get beyond qualified immunity in a civil rights lawsuit against the two police officers. So yes, they would have a pretty strong incentive to say Crossland did more than swear at them before they began to beat them. (Note: I’m not stating that either side is truth. Only that the biases here aren’t nearly as clear-cut as the court makes them out to be.)
Most importantly, consider what just happened here. The trial court, the appellate court, and the prosecution all concluded that these two cops broke the law, yet still, all three have deemed that the cops’ testimony is more credible than the testimony of Crossland, his cousin, and the other witnesses—none of whom was doing anything wrong before the confrontation. To be fair, the evidence has to be pretty overwhelming for an appeals court to overturn a trial court on witness credibility. But still. Only one party broke the law before the confrontation. But because that party sports a badge and works for the government, they still get the presumption of credibility over the guy who was minding his own business, his cousin, and the other witnesses.
One judge on the appeals court did at least have some sense of the injustice, here. Judge Frank Schwelb wrote a concurrence that begins . . .
I join the judgment and opinion of the court. In my view, however, the patently unconstitutional conduct of the police in this case merits some brief additional comment.
Schwelb then quotes from the trial judge:
I think it’s uncontested that the defendant and Mr. Womack were not doing anything wrong or illegal at that point [when the police approached them]. And I’ll even agree with the defense that the police did not have any right to go up and start searching them, which is pretty much what they did. They went up and seized them, told them to turn around, and started patting them down. And I wish those officers were in the courtroom today, because there’s a clear violation of the defendant’s constitutional rights.
Sure. All they needed was a good scolding. It’ll never happen again. Promise!
Schwelb then relays a passage from the defense brief which summarizes what happened to Crossland that day.
What is most disturbing about this case is the result: a young man in the community . . . who was engaged in peaceful activities (mowing the lawn, smoking a cigarette) and who the police knew at the time they stopped him was not doing anything unlawful, is approached by aggressive officers engaged in aggressive unconstitutional patrols, and this young man ends up being punched in the face with such force that he receives a black eye, kicked numerous times in the back, thrown on the ground, sprayed in the eyes with pepper spray, and finally, he receives two convictions on his record for assault on a police officer. . . . But for this unconstitutional police policy, appellant Crossland would not have suffered a physical attack on his person and would not have had these convictions on his record. Instead, he would have had a rather ordinary day in his community mowing the lawn and smoking a cigarette, a day he probably wouldn’t even have cause to remember, and it is very disturbing that the police in this case are essentially being rewarded for their unconstitutional behavior and aggressive unconstitutional police policy which was the direct cause of a highly volatile situation which led to this young man’s eventual convictions for assaulting them.
Despite his concerns, Schwelb concludes he has no choice but uphold the convictions.
As Judge Thompson points out in her opinion for the court, we are of course bound by the trial judge’s credibility findings, and I fully agree that Crossland’s convictions must be affirmed. But if anything good is to come from this unfortunate street encounter between the police and a citizen, it should be an end to the unconstitutional police conduct revealed beyond peradventure by this record. If this hope is naive and unrealistic, then to that extent we are less the land of the free than we would otherwise be.
Call me a cynic, but I’m betting on “naive and unrealistic.”
The dreary lesson from this case and the Nicholas Peart op-ed: Police need only the flimsiest of suspicions to stop you on the street, detain you, and search you. But even if they don’t even have that, they aren’t likely to suffer any serious sanction for an illegal search. Nor is a court likely to believe you should you try to complain. If you resist—physically or verbally, whether the search was legal or illegal—they can bring the hammer down, with damn-near impunity. And after the violence, you’ll be the one going to jail.
(Thanks to Alan Gura for sending the case.)