'For Your Own Protection'

by William Norman Grigg

Recently by William Norman Grigg: Meet Ed Flynn – Milwaukee Crime Lord, Citizen Disarmament Advocate

There is no situation that cannot be made instantly and immeasurably worse through police intervention. A splendid illustration of this principle is found in a recent ruling from the the Arkansas Court of Appeals.

According to the court, police were entitled to arrest, taze, and beat a teenager who had done nothing more sinister than speak to his mother on the street in front of their home. A police officer accosted the young man – who, as a juvenile, is identified only by the initials "R.R." – after he saw him approaching a woman who was walking a dog.

The officer, who belongs to a social cohort of people who are distinguished primarily by their timidity, claimed that he was "concerned for the woman’s safety." His fears should have been allayed when it was established that the woman was the teenager’s mother.

If the cop had been an actual peace officer, he would have tipped his hat and left. But he was a law enforcer – that is, someone through whose dark ministrations innocent people are transformed into "criminals" – and so he insisted on detaining and interrogating the entirely harmless youngster. To that end he sent for "backup," and a thugscrum soon coalesced around the puzzled and terrified teen.

As the Court of Appeals summarizes, R.R. was "tasered several times, removed from the backseat [of a police vehicle], thrown to the ground, tasered again, kicked, handcuffed, and arrested." All of this was done because the young man "moved around and wrestled around while the officers held him on the ground, making it difficult for the officers to put the cuffs on him."

Because he didn’t permit himself to be shackled like a slave in front of his own home because he had been seen speaking to his mother, the teenager committed the supposed crime of "refusing to submit to arrest."

The trial court in the case also acknowledged that the victim was "a fine young man, an excellent student, and active in sports, clubs and church activities." The judge reportedly expressed dismay that "an innocent situation … just completely got out of hand" – which is, once again, the familiar and entirely predictable outcome when members of the State’s enforcement caste materialize. Despite these superficial expressions of regret, the Judge sentenced the victim to serve one day in detention – thereby leaving him with a criminal record because he had been on the receiving end of a state-aggravated assault.

Like most communities in its section of the country, Pope County, Arkansas, where that incident occurred, is thickly populated with Evangelical Christians, whose numbers probably include most elected officials, prosecutors, judges, and police officers. At some point in Sunday School they probably read the 22^nd chapter of the Book of Acts, which describes how the Apostle Paul, accused of disturbing the peace, was arrested by Roman occupation soldiers and taken to a local barracks to be questioned under scourging.

As the interrogator was preparing to whip the apostle, Paul pointed out to the centurion in charge that it was illegal to flog a Roman citizen unless he had been tried and convicted of a crime. This objection caused the interrogator to desist immediately, and prompted the officer in command to express the fear that he could face criminal charges because he had chained – that is, handcuffed – a Roman citizen.

Every day in this supposedly free country, police commit an act that was impermissible for their antecedents in imperial Rome: In the name of "officer safety," they handcuff American citizens who are not criminal suspects while conducting investigations. Police also routinely inflict summary punishment – using batons, Tasers, pepper spray, or other means – against those who resist being detained without cause. Within a few years police will have at their disposal handcuffs that can impart electrical shocks to detainees.

In an 1894 essay published by The Strand Magazine, Inspector Maurice Moser of Scotland Yard wrote that the earliest historical mention of handcuffs was in the fourth century B.C., "when soldiers of a conquering Greek army found among the baggage of the routed Carthaginians several chariots full of handcuffs, which had been held ready in confident anticipation of a multitude of prisoners."

"My personal experience of handcuffs is small, because I dislike them," wrote Inspector Moser of the restraints. He pointed out that in Belgium, which at the time was the seat of a substantial empire, "the use of handcuffs by police is entirely forbidden."

Like most police officers of his era, Moser was a relatively civilized man who found the act of shackling another human being to be barbarous and punitive. Handcuffing a human being certainly doesn’t enhance the safety of the person being restrained. Nor does it relieve police anxieties about the all-encompassing threat to that most sacred of considerations, "officer safety." Witness the large and ever-growing number of cases in which officers – almost always in the plural, of course – beat, taze, pepper-spray, and even shoot suspects who have already been handcuffed.

Last summer, police in Aurora, Colorado indiscriminately handcuffed and detained scores of people for the space of more than four hours following an armed robbery at a branch of Wells Fargo bank.

According to Officer Frank Fania, drivers and passengers in the vicinity "were handcuffed, then were told what was going on and were asked for permission to search the car. They all granted permission, and once nothing was found in their cars, they were un-handcuffed."

Once the victims were handcuffed, of course, they had no choice but to grant "permission" for their abductors to paw through their vehicles. What if they had withheld consent? What if they had refused to endure the indignity and injury of being handcuffed in the first place?

Fania insisted that the mass arrests were necessary and justified because it was a "unique" situation. But it’s more honestly described as mass application of the standard approach to "protective" detention of individuals who are not criminal suspects.

Owing to the semantic deviousness of police and prosecutors, citizens are increasingly unsure of their status when they are accosted by police: Are they under arrest, or subject to "investigatory detention"?  If the citizen isn’t formally under arrest, is he free to leave? Can police draw their guns and threaten a citizen with lethal force if he is not formally under arrest?

That last question has been addressed in a recent ruling by Louisiana’s Fifth Circuit Court of Appeal, which held that those circumstances do not constitute a formal arrest – at least when the legitimacy of that arrest is questioned by the defendant.

On June 8, 2010, Robert Carter of Jefferson Parish, Louisiana parked outside a convenience store. Acting on a tip from a snitch that Carter would soon arrive at the location to conduct a drug deal, two undercover detectives had kept the lot under surveillance. After Carter parked his car, the detectives used their unmarked vehicles to cut off his escape and approached him with guns drawn.

In a panic, Carter threw his car into reverse, severely damaging the unmarked car behind him.

During his bench trial, Carter claimed that the arrival of two armed men – one of whom admitted in testimony that they didn’t clearly identify themselves as police – made him fear for his life. After being convicted of felony malicious property damage, Carter – a second offender – was sentenced to 20 years in prison. On appeal, Carter insisted that the arrest was unlawful.

In a remarkable achievement in judicial sophistry, the appeals court ruled that what it called an "investigative detention" is not an arrest – while insisting that Carter had no right to leave what the trial judge called "the arrested place [where] he’s supposed to remain." In practical terms this means that cops are permitted to detain any citizen at gunpoint without such an action qualifying as an "arrest" – and therefore being subject to the restrictions supposedly guaranteed by the Fourth and Fifth amendments. Once the individual is detained, he can be shackled at the discretion of the officer – and then beaten, jailed, and prosecuted if he objects.

The act of handcuffing another human being is a serious injury. When not done to restrain someone who has actually harmed another human being, handcuffing is a morally impermissible form of aggressive violence. It is meant to be a tangible demonstration of superiority that requires the victim to submit to the supposed authority of the aggressor. It is designed and intended to humiliate the victim. This is why it is done even to six-year-old inmates of government schools who are dragged away by police officers, nonagenarians who are abducted at gunpoint for neglecting to pay traffic tickets, or pregnant female inmates who are chained while giving birth.

This is also why police who are charged with crimes are often spared being handcuffed out of "professional courtesy" – which in some cases has actually imperiled the arresting officer.

In the American Soyuz, any of us, at the whim of an armed stranger in a government-issued costume, can find himself being treated in the same way that the Carthaginians treated captured prisoners of war. At least Carthaginian soldiers didn’t insult the intelligence of their victims by insisting that they were being shackled for their own "protection."

March 7, 2013

William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

The Best of William Norman Grigg