Kafka Surrenders

Monday, December 19th, 2011

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. Wo[]mack, 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. Wo[]mack 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.)


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85 Responses to “Kafka Surrenders”

  1. #1 |  Angelo | 

    Surveillance Cameras on the street, at traffic lights, scanning the HOLOGRAMS on our LICENSE PLATES…Unmanned DRONES in the sky, taking pictures of people in their yards…SURVEILLANCE, VANS and SUV traveling our highways with heat sensor, x-ray equipment, scanning equipment, in our NEIGHBORHOODS. What are THEY LOOKING FOR….Oh WAIT ITS US THEY ARE LOOKING FOR…..Below link….BOTCHED SWAT RAIDS….

    http://www.cato.org/raidmap/

    Angelo

  2. #2 |  JOR | 

    The fact that cops are paid in tax money is the least objectionable thing about them. The wrong is in the collecting of the taxes; what is done with the money after that is in and of itself irrelevant. In any case, anyone who gets paid anything by anyone is receiving money that was stolen at one point or another.

    Paying taxes is more morally problematic, given what the state tends to use resources for, than eating them. The problem with cops is what they do, not with who pays them to do it.

  3. #3 |  StrangeOne | 

    Hey CyniCAl, put another notch in your walking stick or whatever it is you do, cause I think I’ve just signed on the anarchist position. I think I’ve reached the point where I can no longer see the phrase “just government” as anything other than an oxymoron.

  4. #4 |  #OccupyMINDS If a Cop Is Illegally Searching You, You Have to Take It « Darin R. McClure – The Good Life In San Clemente | 

    […] old comrade Radley Balko does what he does bestat The Agitator, chronicling howall-too-often citizenshave no rights a policeman need respect when it comes […]

  5. #5 |  CyniCAl | 

    #52 | JOR — “The fact that cops are paid in tax money is the least objectionable thing about them.”

    For someone who essentially agrees with me, you sure went on quite a bit there. Being paid in tax money is a universal quality that applies to all public cops. As such, it is the most basic refutation of the “good cop” theory, and it is the simplest way to demonstrate to tax slaves the difference between a tax feeder and a tax slave.

    And you know what? Fuck the police.

  6. #6 |  CyniCAl | 

    Welcome aboard StrangeOne. Anarchism is the biggest tent there is, you just have to resist the urge to treat your fellow human as your property. How hard can that be? Please keep this chain letter going….

  7. #7 |  Robert | 

    #5 “but we’re a lot freer than the US has been for at least a decade, if not more.”

    As long as you don’t print something critical of islam. Or believe in the right to armed self defense.

  8. #8 |  Mike T | 

    #17

    In fairness, to devil’s advocate, forceful resistance to unlawful arrest should not be blanket approved. Only if there is reason to believe excessive force is being used or about to be used, or the police officer’s behavior is blatantly reckless. Then every arrest won’t be a debate over whether it is lawful, and thus provoke a violent duel.

    That needn’t be the case. The way to solve it is to abolish or minimize the mens rea requirements for both unlawful arrest and resisting arrest. If you resist arrest and it was lawful, it should be a open and shut case where you get clubbed over the head by the judge. Same for the officer. Ignorance of the law is no excuse for us. It shouldn’t be for them. Mercy should never be applied as a general rule except in extraordinary cases of this nature and only then by a jury that chooses to nullify.

  9. #9 |  Jamie Niles | 

    I was once detained my an officer who unwittingly told me that the only reason he stopped me was to justify his hours. I was stopped, threatened with a ticket (because I *smirked* at him) and held for 30 minutes simply because he had to prove to his boss he was working.

    I wonder how many of these “stops to prove thyself” result in what happened above?

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    […] As Radley Balko writes: 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. If you're in need of a tough, experienced Raleigh, Cary or Apex criminal lawyer, call our offices day or night. The Chetson Firm represents individuals charged throughout the Research Triangle – Wake, Durham, Orange, and Chatham counties. Call anytime – (919) 352-9411 – weekdays, weekends, evenings or holidays. Tags: chapel hill criminal lawyer […]

  11. #11 |  derfel cadarn | 

    Both of the officers their commanders and the entire appellate bench should go to prison for contempt of their superiors (citizens) and breach of oath of office. The American People can no longer put up with this kind of insubordination from their servants.

  12. #12 |  Boyd Durkin | 

    I am no longer drunk and still I have a hard time reading GT.

  13. #13 |  Boyd Durkin | 

    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.

    Step One: Become cop.
    Step Two: Find Tucker Carlson.

    Maybe there’s a silver lining.

  14. #14 |  V-Man | 

    @#59

    Nothing new here. Back in the late 80s, when I was a student working a summer job, I once lost an entire day’s wage to a traffic fine. The fine was because my wheels weren’t motionless for a full three seconds at a stop sign.

    The policeman apologized when giving me the ticket. There had been complaints by the neighborhood that people didn’t do their stop properly (“think of the children!” etc.), so he had received orders to give tickets to everyone passing by that stop sign. Didn’t think it was fair, but orders are orders…

  15. #15 |  rhofulster | 

    The link to the ruling doesn’t work.

  16. #16 |  Mike T | 

    Both of the officers their commanders and the entire appellate bench should go to prison for contempt of their superiors (citizens) and breach of oath of office. The American People can no longer put up with this kind of insubordination from their servants.

    The American people proved a long time ago to lack the civic virtue to demand the government call them “master.” The average voter is no more qualified these days to wield that power than the average bureaucrat is to regulate them.

  17. #17 |  News, links and random thoughts | Code Monkey Ramblings | 

    […] This is a good example of why the United States does not have anything that can be reasonably called the “rule of law.” Notice that the police officers were doing something which the courts acknowledged was an actual, actionable, even criminal violation of civil rights but the defendants still possessed no right of self-defense against the illegal actions of the police officers under the law. They could sue or plead with a district attorney, but actual self-defense–that is to say, the right to use force–was not a legal option. […]

  18. #18 |  barney | 

    aren’t the judges familar with the concept: innocent until proven guilty beyond a reasonable doubt?

    seems there was a reasonable doubt as to whether he assaulted P.O.

    maybe the judges (all of them) should repeat 1st year law school?

  19. #19 |  Goober | 

    Hey guys. i know it sucks, but the smart thing to do here is to comply with what they are doing and call your lawyer afterwards. When you are armed with a cigarette and a lawnmower and they have guns, tazers, and pepper spray, you lose the physical battle.

    DO what they say, then make it your life’s mission to have their jobs, and own the local precinct as soon as possible afterwards.

    It is possible. it has happened. Remember, revenge is a dish best served cold.

  20. #20 |  Mike T | 

    DO what they say, then make it your life’s mission to have their jobs, and own the local precinct as soon as possible afterwards.

    If this were the norm, the government would just outlaw filing lawsuits against it.

  21. #21 |  Deoxy | 

    This kind of thing only stops when extra-judicial measures are applied – that is, when either vigilante or mob justice is applied to the offending party the state refuses to discipline (the police).

    In a case like this, the way to end stuff like this is to make sure you have cameras (with sound) rolling from a non-obvious vantage point, and then have someone off camera (and not directly involved) protect the victim (of the police brutality) with lethal force.

    It would take a VERY FEW of such actions to make difference (especially if the actual offender is never caught – whether someone goes to jail or not, the police know when the just grab a scape goat).

    I honestly hope it never comes to this, but if actions like these continue, eventually, it will. Hey, officers! FIX IT BEFORE THAT, for your own sake as well as ours – actions like that do lasting social damage, even when they are necessary.

  22. #22 |  Deoxy | 

    The policeman apologized when giving me the ticket. There had been complaints by the neighborhood that people didn’t do their stop properly (“think of the children!” etc.), so he had received orders to give tickets to everyone passing by that stop sign. Didn’t think it was fair, but orders are orders…

    Actually, that’s just a way of dealing with inherent flaws in human nature that are extremely difficult to correct – that is, a problem is not dealt with until it applied evenly to EVERYONE, and then, when it hits someone who “matters” (that is, who has come clout and, generally is the type who likes to throw it around), the problem is resolved.

    It sucks, but it does get things done. I got a speeding ticket once for a similar situation – there was an area that had been changed quite a bit with construction, but the speed limit signs had never been changed (still 45 in an area that was now divided, limited access highway). Everyone ignored the signs, since they were clearly just out-dated… then, a couple of officers started ticketing people for it, and the signs were changed in less than a month.

    Yes, it’s stupid, but it’s not actually malicious – there’s a big difference.

  23. #23 |  Windy | 

    @ Mike, #66 “The American people proved a long time ago to lack the civic virtue to demand the government call them “master.” The average voter is no more qualified these days to wield that power than the average bureaucrat is to regulate them.”

    “Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.” — Thomas Jefferson

    History HAS answered this question, clearly the answer is “NO!”

    We, the People stopped enforcing the Constitution about the time of Lincoln’s presidency, which is why we are suffering under this police state today.

  24. #24 |  Ed | 

    If you were trying to avoid associating with terrorists and you had a choice of going to a party of 50 muslims or 50 cops, which would you choose?

  25. #25 |  Court upholds right of police to stop and search citizens for the flimsiest of reasons « Against Dumb | 

    […] 21, 2011 news culture et cetera Court upholds right of police to stop and search citizens for the flimsiest of reasons Hedge fund managers got inside information from Congress during the healthcare debate Kim […]

  26. #26 |  Larken Rose | 

    Allow me to make the most politically incorrect, but perfectly logical, conclusion. If you are being wrongfully detained, arrested, whatever, by a thug with a badge, there is only one way to resist that at least has a chance of you not getting arrested: killing the aggressor. Now, as a practical matter, I wouldn’t suggest this, because his fellow jackboots will probably eventually hunt you down and do nasty things (very possibly including murdering you), but the point still stands: what this teaches is that resisting thugs with badges a little bit is in some cases MORE hazardous than just killing them outright. If a cop doesn’t mind detaining or arresting you without any reason, you can bet he also won’t mind planting something on you, or lying in court (which they do constantly), to get you caged for something you didn’t do. Given the choice between 1) being put in a cage for years so some power-happy moron with a badge can get his jollies for the day, and 2) ridding the world of a power-happy thug, I would choose the latter.

    As others have mentioned, that also appears to be the only deterrent that there is ever going to be against thugs with badges doing whatever they want. Hey, even JFK said that when you make peaceful change impossible, you make violent change inevitable. And that’s all these fascist “rulings” are going to do in the end. The courts can say, “Yeah, they can do whatever they want,” right up until the people say, with bullets, “no, they can’t.”

  27. #27 |  frank | 

    and other people wonder why gangs exist and those 2 police will get shot when someone recognizes the watch and wait

  28. #28 |  JS | 

    One of the many reasons I left the country….there are too many other places where personal liberties are respected and that haven’t resorted to a police state….I told my mama I love her, but I’ll see her at Christmas, they can have this country.

  29. #29 |  shipwreckedcrew | 

    The defendant’s can sue under Sec. 1983. Judgments about witness credibility will be made by a jury, not judges.

    Constitutional violations by police such as alleged here are cognizable in civil actions, not as defenses to criminal charges.

    Whatever the police may have done unlawfully, the defendants were prosecuted for their conduct which followed.

    Had they not resisted, their civil case would have been pretty much “open and shut” against the police since their own biases and motivations to sue would not be impugned by their convictions.

  30. #30 |  libarbarian | 

    @76,

    “Given the choice between 1) being put in a cage for years so some power-happy moron with a badge can get his jollies for the day, and 2) ridding the world of a power-happy thug, I would choose the latter.”

    False choice. The choice is between possibly being put in a cage for years before being released and being put in a cage for years before having a needle put in your arm and coming out in a bag.

    The situation is NOT going to be ended by killing the cop because you are NOT going to just “disappear” and get away with it. You would then, of course, end up on death row (meaning many, many, years in a cage before the release of death) or just gunned down by whatever vengeful police were “trying” to arrest you. Your mother & family in general, whom I assume you love, would be heartbroken and have to deal with the aftermath.

    Revolutionary Violence has it’s place but uncoordinated actions by lone individuals don’t ever accomplish squat. They all hope that their action will spark some general uprising by the masses etc. …. they are fools fooling themselves.

  31. #31 |  Cyto | 

    The officers in question are not the problem. They are the symptom. The prosecutor who pursued the case knowing full well he had a couple of dirtbags on his hands is the problem. The trial judge who knew full well that he was rubber stamp endorsing this “contempt of cop” beating with a criminal convictions is the problem. The Appellate judges who know the real deal but pretend their hands are tied are the real problem.

    And most of all, we the people and the idiots we elect to represent us are the problem. We tolerate this kind of crap and like anything bad, tolerating it allows it to spread. Heck, we don’t just tolerate it… we celebrate it! Pogo was right. We have met the enemy, and he is us.

  32. #32 |  Doing Kafka Proud | Lawyers on Strike | 

    […] he often does, Radley Balko chronicles the latest and greatest outrage of police abusing their power.  This time, there is the additional […]

  33. #33 |  Sunday Reading « zunguzungu | 

    […] Kafka Surrenders: [C]onsider 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. […]

  34. #34 |  slacktivist » ‘The animals are coming,’ so drive up the price of Ron Paul’s investments in gold | 

    […] […]

  35. #35 |  Scab of a nation, driven insane : another week closer to the eschaton… | 

    […] too bad nobody’s listening, especially in the united states. quite the opposite, actually: Kafka Surrenders – if the police illegally stop you, detain you, and beat you, you aren’t permitted to […]