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Shocking? Only to the Constitution...and to the Humane

I have not infrequently written about the fact that our nation is moving toward a state of institutionalized lawlessness. I haven’t exactly used that term before, but that now seems the best name for the monstrous abuse of governmental authority increasingly encouraged by the courts. It’s no small wonder our officers are becoming uniformed thugs: the courts have all but told them there is no degree of thuggery that will cause the court to chastise them.

And make no mistake: it is the courts who are to blame. Of late the Fifth Appellate District Court, for example, has apparently found it to be permissible for the Sheriff to install intercoms in rooms where accused people meet with their attorneys to discuss their cases. Apparently uninterested in the California Supreme Court rulings on the matter, the Fifth Appellate District denied a writ to challenge this without even so much as an explanation in what is sometimes referred to as a “postcard denial.”

Our constitutionally-based legal system — once quaintly referred to as our justice system — is unfortunately under attack by the very judges who are sworn to uphold it. And as the judges go, so goes the rest of the system.

I am not exaggerating about this, either. In one recent and quite shocking case, the United States Court of Appeals for the Eleventh Circuit held that electrocuting a distraught homeless man because he had lost all hope was perfectly acceptable. The man’s sin? He was so distraught — in the video posted to youtube you can hear him crying relentlessly and speaking of how he would be better off dead — he did not stand when ordered to do so by the arresting officer. The officer decided that he would encourage Mr. Buckley to stand by repeatedly electrocuting him.

As has become increasingly common, the court found torturing Mr. Buckley for his lack of compliance to be perfectly acceptable.

Although, as the district court observed, the underlying offense of refusing to sign a traffic citation was relatively minor, we nevertheless credit the government with a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee. The government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment. Even though Plaintiff was handcuffed, he still refused repeatedly to comply with the most minimal of police instructions — that is, to stand up and to walk to the patrol car. That Plaintiff was resisting arrest weighs in the deputy’s favor.

The court stated in a footnote that the fact Mr. Buckley did not attack or menace the deputy “does not shield him from the use of force, even if it might result in pain.”

The justification behind this would make any dictator proud. First of all, the Eastern District Court in Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1168 (E.D. Cal. 2008) — you knew Fresno would get into this article somehow, didn’t you? — had already said that tasering people isn’t really all that bad, even though the victim in the Fresno case died after being tasered. And, secondly, the Ninth Circuit had previously decided that it was okay to break the wrists of protestors who were passively resisting arrest.

As the sole still-sane judge — dissenting in Buckley’s case — noted, the Ninth Circuit Forrester case does not support the conclusion that tasering distraught homeless traffic violators is okay. In Forrester, the court compared the force used on the protesters with a use of force “which would create immediate and searing pain,” which the Ninth Circuit felt would be unacceptable.[1]

The court did explain that there is a limit to the methods police may use in administering pain. Shooting or beating in his head with a club would have been unacceptable. (Beating his head with something else? I was unable to learn what the court felt about that case, or this one. This case hasn’t been decided yet, either. Nor do I know what’s come of this case. But at least beating head’s with clubs is still considered a Bad Thing™.)

At any rate, the court apparently thinks tasering is okay. That’s even though this guy, like the Fresno guy, and all these people, died after being tasered. You’d think all those deaths would change the court’s opinion. At any rate, in Buckley’s case, he “only” suffered burns which caused scarring and the growth of keloids.

To provide the appearance of fairness, the Eleventh Circuit — showing more concern for providing reasons than some other courts while nevertheless still ignoring the law — examined a case that the lower court relied on when it ruled against the police officer. In that case, slamming a handcuffed person’s head into the trunk of the car was “wholly uncalled for.”[2] But in Buckley’s case, he “resisted” by becoming emotionally distraught and collapsing on the ground.

One judge felt that the third time the taser was used was a violation of the Constitution, but apparently felt the police officer deserved qualified immunity. Umm….judge…uh….EXCUSE ME! THE CONSTITUTION WAS WRITTEN TO, AMONG OTHER THINGS, CLARIFY WHAT BEHAVIOR IS UNACCEPTABLE FOR GOVERNMENT AGENTS! Giving officers immunity for their actions in violation of the constitution effectively negates the Constitution.

I’m not sure what it’s going to take the restore our Republic. Certainly, the courts are not inclined to see that happen. The explanations — when they are given — are sorely lacking. As the lone dissenting judge in Buckley’s case noted, “individual interests protected by the Fourth Amendment [or other parts of the Constitution] do not so easily give way.” As she noted, if efficiency for the police department was the main concern, authorizing the police to beat the shit out of people would “expedite their law enforcement efforts.”

Our Constitution, however, works towards the opposite goal. It’s time for our courts to recognize that and take back the blank check they’ve given to “law enforcement” officers.

Special thanks to Joni Mueller for sending the link that inspired this post.

  1. Forrester v. City of San Diego, 25 F.3d 804, 808, n.5 (9th Cir. 1994).
  2. And, no, this doesn’t help with the question of whether beating someone’s head on a trunk instead of using a club is excessive. It was “wholly uncalled for” because there was no resistance, not because beating a head on a trunk during an arrest for a traffic violation was wrong.