There’s this thing called the force continuum, which is useful for a number of reasons but in this case has a lot to do with proportionate response. It starts at harsh language and ends somewhere in the realm of nuking the site from orbit. This comes up in things like self-defence and police work: Generally speaking, lawful actors are only entitled to defend themselves with force commensurate to what their assailant is using. If you’re yelling at me, I’m not entitled to hit you. If you throw a punch at me, I might be entitled to hit you with an elbow, but not with a kukri — unless, perhaps, you have some friends along who are also throwing punches at me.
Force levels aren’t just based on weapons, either: They’re based on capabilities. If a 97lb octogenarian swings a cane at me, it’s unlikely to count as a serious assault, and my reasonable options are walking away, harsh language, or — if for some reason I have to stick around — maybe some sort of “soft-hands” disarm. If I swing a cane at a 97lb octogenarian, that’s well within the realm of lethal force to a reasonable-man standard, and he (or she) is perfectly justified in pulling out a snubbie and introducing my insides to my outsides.
None of this has any bearing on the presence of violence. If that 97lb octogenarian is waving his cane at me and I’m yelling at him from a safe distance, there’s still force being brought to bear by both of us. Not very much force, mind you, but we’re each trying to coerce the other into some unwanted course of action. The force continuum is about how much violence is appropriate, not whether violence is appropriate.
Which makes the discussion surrounding stories like these, reported by Orin Kerr:
- Reader poll on Tasing of Occupy DC protester (Volokh Conspiracy)
- More on the Occupy DC Tasing video, and two narratives of police-citizen interaction (Volokh Conspiracy)
and this, from Radley Balko:
- Electroshock education (The Agitator)
In the first case, according to Kerr:
A protester in a red shirt proceeded to tear down the notices after the police left them, and he is heard screaming at the police: “Let them clean up the trash in the fucking parkway! It was your fucking trash, you fucking pigs!” The police then walked after the protester, who ran away from the police. A bunch of officers then surrounded the man, who started repeating that he had done nothing wrong. Two officers then went to grab him, but he resisted; after he continued to resist, a third officer tased him.
If you click through and watch the video, you can see a fairly slow-boil escalation. The protester starts off as the aggressor (using the term in a very mild sense), tearing down notices and yelling insults. The park police escalate by pursuing, surrounding, and attempting to detain him; he counters by evading and struggling to break the grasp of the officers trying to hold him.
The interesting question here is whether the third officer was justified in shooting him with a Taser when two other officers had him by the arms and he was more or less surrounded by LEOs (who were themselves more or less surrounded by other protesters). I can see arguments on both sides of the question: On the one hand, I think Tasers are a lot more dangerous (read: higher up the force continuum) than a lot of official-type people care to admit, so this looks like unjustified escalation. On the other hand, I can see how bringing a very quick end to a confrontation when surrounded by other Occupy protesters is a prudent move on behalf of the park police, so perhaps escalating from grabs to Tasers was justified. This is all Monday-morning quarterbacking, sure, but it’s important for setting down standards of force escalation that are predictable from both sides of the thin blue line.
That’s not what Orin wants to discuss, though. He wants to justify (or not) the use of force at all —
My pet hypothesis is that most people recognize two competing narratives when it comes to police-citizen interaction. The first narrative is what you might call the equality narrative. The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. If an officer asks a person questions, for example, he doesn’t have to respond. Unless the officer orders him to stay put, he can walk away.
The second narrative is what I’ll call the inequality narrative. The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don’t. If an officer decides to make an arrest, for example, the subject of the arrest can’t just decide he would rather not be arrested and try to resist the officer’s efforts.
I don’t see a contradiction here. Police officers have special authority and special obligations — they can make We The People do what they say (within the confines of the law, at least — and that part’s important), but they’re obliged to march to the sound of the guns. Given the choice between responding to violence with commensurate force and responding to violence by running the fuck away, I’m thrilled to be able to take the sensible second option, but police officers can’t do that. The “inequality narrative” holds: Those park police had the authority to stop the red-shirted protester from tearing down notices. The question is: When faced with what looks on video like rather low levels of violence, did they have any right to escalate to the Taser? Unless the crowd was looking particularly riotous — and bear in mind that I wasn’t there, all I know is what I saw on YouTube — my guess is “no”.
The second story, well….
A Montara man walking two lapdogs off leash was hit with an electric-shock gun by a National Park Service ranger after allegedly giving a false name and trying to walk away, authorities said Monday.
The park ranger encountered Gary Hesterberg with his two small dogs Sunday afternoon at Rancho Corral de Tierra, which was recently incorporated into the Golden Gate National Recreation Area, said Howard Levitt, a spokesman for the park service.
Hesterberg, who said he didn’t have identification with him, allegedly gave the ranger a false name, Levitt said.
The ranger, who wasn’t identified, asked Hesterberg to remain at the scene, Levitt said. He tried several times to leave, and finally the ranger “pursued him a little bit and she did deploy her” electric-shock weapon, Levitt said. “That did stop him.” . . .
(Aside: There is a special place in hell for people who insert “did” into perfectly valid clauses that way. Grr.)
You have to really stretch to see how Hesterberg even used force in this case. (Technically, he fled from lawful detainment. Maybe; it’s unclear whether park rangers have the authority to detain people for walking their dogs without a leash.) The ranger escalated reasonably to harsh language… and then jumped right up to less-lethal force. (Here, “less-lethal” means “probably won’t kill you, if you’re healthy and not impaired”. Tasers have caused an awful lot of deaths, although I’m not convinced that the other options available at the not-quite-firearms slot on the force continuum are any better.)
Again, the more interesting question here is not whether the ranger had the authority to use violence against Hesterberg, but how much. Harsh language? Plausible. Physical restraint? Maybe. At some point, I’d hope that a sense of proportion (“I’m risking a violent confrontation for a leash law violation”) would prevail: “Protect and Serve” does not mean “you have to win every argument ever”.