Against my better judgment, Vol II. Being more tired and emotionally drained...
I have waded into the cop bashing conversation a few times, and I will repeat myself: if there is a cop that is guilty of abuse of his position then the problem is with that cop. If the problem is systemic then we need to address the system. Cops do not operate in some opaque vacuum. They operate within a structure and if you really want to change things then go after that structure. Of course there are problems with LE's over-reaching and abusing power.
This is both wrong in the first statement and misleading or naive in the second. The first is that the problem is not with the individual, the real problem is with the people he comes into contact with and how his actions affect others. The effect of his action going unchecked, unpoliced by his fellow officers is a direct contributor to the perceptions and convictions of others about LE that you seem to think are the mark of lazy people.
[MENTION=30303]EventHorizon[/MENTION], with sincere respect I emphatically disagree. History has an endless list of defendants that agree with you that the first statement is wrong. I am comforted that history has come down against them (though not often enough), and I hope it will continue to do so. The individual may indeed be culpable, and often without limit. The defense that they are not responsible due to some chain of command (be it Superior Orders, Nuremberg Defense...) does not have a particularly strong legal footing, and less so morally and ethically. We could go on for volumes about the tension between conflicting judgments in international courts (often for war crimes) versus national courts, but one central fact remains through all of it, and that is that the individual does have a choice, be it moral or legal, and can be held to account. This is not a debate of IQ, be it lukewarm or molten, it is fact. And it behooves all of us to rejoice that it is. It further behooves us to ensure that such individual accountability is never swept away.
I do not wish to devolve into assessments of intellect (I wish this would stop rearing its ugly head), there is no shortage of bright people here and I do hold you in some esteem. Rather than me laying out an encyclopedia of failed and successful Nuremberg Defenses here I encourage you to use your Google-fu and decide for yourself if this is an acceptable defense. Of course such a plea does sometimes prevail, and this is too often shameful. Perhaps a more to the point, should we (continue) to hold individuals accountable for their actions?
I stand by my assertion: "if there is a cop that is guilty of abuse of his position then the problem is with that cop". I do not see a moral or legal escape, and I generally hope against one notwithstanding individual merits.
Change structure you say. It's pithy, but impractical.
Bosh. This appears to me as a throw your hands up in the air abstention. Difficult, maybe even extremely difficult? Yes. Expensive? Usually. Impractical? Hardly. Holding the individual and the structure accountable are not mutually exclusive efforts. There is not enough room on Sniper's Hide servers to document legal decisions that affect and change LE. If affecting/effecting police behavior is a doomed effort perhaps courts of all flavors, our various state and federal legislatures, and the bar should just stop trying. The fact is that courts frequently find against LE, I think most often on Fourth, Sixth, and Fourteenth Amendments. Just to remind us of a few notables affecting cops:
Mapp v. Ohio, 367 U.S. 643 (1961)
SCOTUS applied the "exclusionary rule" to the states. Any evidence illegally obtained by the government cannot be used in court against the accused.This case began when seven police officers broke into the Cleveland home of Dollree Mapp, supposedly to look for a bombing suspect and gambling paraphernalia. Although they found neither, they did find some books and photos that they deemed to be obscene. Mapp was convicted of possession of obscene literature and sent to prison.
The Court overturned Mapps conviction, finding that the search of her home violated the Fourth Amendment protection from unreasonable searches and seizures. The Court applied the exclusionary rule (which provides that otherwise admissible evidence cannot be used in a criminal trial if it was the result of illegal police conduct) and said that the evidence used to convict Mapp should not have been allowed. Prior to this case, the Court had not applied the exclusionary rule to the states. This case was the beginning of an era in which the Supreme Court (under Chief Justice Earl Warren) overhauled criminal procedure.
Personally, I think the court blundered. The Fourth and Fourteenth Amendment rights could have been vindicated without setting the criminal free because the constable blundered. Such remedies would include tort or civil rights actions for the constitutional injury, or even criminal prosecutions for officers who maliciously violate the Fourth Amendment. By imposing a remedy without firm constitutional basis, the Mapp decision allowed countless criminals to go free because of police mistakes. This case represented a sea change in police procedure. Not something I would say was the result of a pithy statement by the plaintiff's attorney's.
Miranda v. Arizona, 384 U.S. 436 (1966)
SCOTUS established an irrebuttable presumption that a statement is involuntary if made during a custodial interrogation without the "Miranda Warnings" given. The warning requirements only apply when a person is in custody and interrogated. In this case, "custody" is an arrest or when freedom is significantly deprived to be equivalent to an arrest. "Interrogation" is the use of words or actions to elicit an incriminating response from an average person. Of course we are all familiar with Miranda.
I mention it as it is cited by courts more times than I care to count.
Missouri v. Seibert, 124 S.Ct. 2601 (06/08/2004).
Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert’s son Darian and a friend set the fire, and Donald died. Five days later, the police awakened Seibert at 3:00 a.m. at a hospital where Darian was being treated for burns. In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, officer Richard Hanrahan that he refrain from giving Miranda warnings. After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes, Hanrahan questioned her without Miranda warnings for 30 to 40 minutes.
An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked... Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that ‘officers may conduct a two-stage interrogation... At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court’... The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.
When Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and ‘depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them’... By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle... Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible.”
In Re Gault, 387 US 1 (1967)
SCOTUS established that juveniles have several rights that adults have. 1) Due process requires adequate and timely notice. 2) There is right to counsel. 3) The privilege against self incrimination applies. 4) The juvenile has a right to a hearing with sworn testimony subject to the opportunity for cross-examination. I am personally thankful for this one.
Chimel v. California, 395 US 752 (1969)
The arrest of a person in his home does not allow the warrantless search of the whole house incident to arrest.
Tennessee v. Garner, 471 U.S. 1 (1985)
The use of deadly force to stop a fleeing felon is not justified unless it is necessary to prevent the escape, and it complies with the following requirements. The officer has to have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Groh v. Ramirez, 124 S.Ct. 1284 (02/24/2004).
ATF agents search a home pursuant to a warrant that failed to describe the “persons or things to be seized.” Although the application particularly described the place to be searched and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any of the items that petitioner intended to seize. In the portion of the form that called for a description of the “person or property” to be seized, petitioner typed a description of respondents’ two-story blue house rather than the alleged stockpile of firearms. The warrant did not incorporate by reference the itemized list contained in the application. It did, however, recite that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance. The search uncovered no illegal weapons or explosives. A lawsuit followed alleging a violation of the Warrant Clause of the Fourth Amendment. The Court made several rulings:
(1) “The warrant was plainly invalid. The Fourth Amendment states unambiguously that ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ The warrant in this case complied with the first three of these requirements: It was based on probable cause and supported by a sworn affidavit, and it described particularly the place of the search. On the fourth requirement, however, the warrant failed altogether.”
(2) The “presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant.”
(3) “Given that the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid... Moreover, because petitioner himself prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that the warrant contained an adequate description of the things to be seized and was therefore valid.” Thus, the affiant was not entitled to qualified immunity.
(4) “[O]fficers leading a search team must ‘mak[e] sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct’... That is not a duty to proofread; it is, rather, a duty to ensure that the warrant conforms to constitutional requirements... Petitioner contends that the search in this case was the product, at worst, of a lack of due care, and that our case law requires more than negligent behavior before depriving an official of qualified immunity... But as we observed in... Sheppard, ‘a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid’... This is such a case.” (Emphasis added.)
The list of such cases is endless. In any given session SCOTUS renders perhaps a dozen or more decisions directly impacting police behavior. Police and the cities that employ them lose civil cases too frequently to count. Organizations and governments do change.
But none of this addresses the crux of my argument that generalizations are harmful, to both the purveyor and the subject. Even in grade school we learned that when taking a test any answer that said "all" or "in every instance" was going to be a wrong answer. While some generalizations work, in the average, the singularity of people simply defies it. The fantastic degree to which we excel at excessive simplification seems to be natural to the human mind, since it is only by abstraction and generalization, which necessarily imply the neglect of a swarm of particulars, that we can stretch our faculties so as to embrace a minute portion of the unlimited vastness of the universe. Of course it is a swarm of particulars that makes up who each of us is. If this inclination is natural and even inevitable, it is nevertheless at our own peril, since it is apt to narrow and falsify our conception of any subject under investigation. To correct it partially - for to correct it wholly would require an immeasurable intellect - we must strive to broaden our views by taking account of a wide range of facts and possibilities; and when we have done so to the utmost of our power, we must still remember that from the very nature of things our ideas fall immeasurably short of the reality. What often does promote evil behavior is the lazy, nasty habit of believing that generalizations have anything at all to do with individuals. The singularity of people escapes the most clever of generalizations. The choice of human groupings for cultural comparisons is not a natural or scientific choice, but a political one.
I suppose I would like for all of us to draw on some personal experience that might help shuck the propensity for generalizations. Having spent a childhood lumped into a category (poor, blue collar) I was struck on the head at every turn; to gain admittance to this or that school, being told I would never date a certain girl because of social standing. But the worst was being condemned to a particular path of pre-ordained behavior. When I got into a fight, well that is what was expected of kids like me. Not one of these generalizations helped bridge a gap between me and whomever it was that was promoting it. There is a lesson there. I will always fight against generalizations, especially those of people.
"Aggressive fighting for the right is the noblest sport the world affords."
—Theodore Roosevelt