Wednesday, January 6, 2010

Neither Sword Nor Shield: Full-Spectrum Civilian Disarmament

"We need to make it clear," fulminated Patrick Lynch of the New York City Policeman's Benevolent Association, "that if someone lifts even a finger against a police officer, their life could be on the line."

Taken literally, this would make a capital offense out of a familiar disrespectful gesture, a salute that is entirely appropriate when directed at officious tax-grazers of Lynch's ilk. It is scarcely an exaggeration to say that Lynch perceives criticism of the police as a species of crime.

That ballad described the death of unarmed African immigrant Amadou Diallo, who was perforated by 19 bullets fired by NYPD officers in a perfectly avoidable eruption of gunfire. The officers were pursuing a rapist, and Diallo – who, like countless other slightly built young black men, vaguely resembled the suspect – supposedly provoked an outburst of "contagious gunfire" by reaching into his pants to retrieve his ID.

Springsteen's song was uniformly denounced as the successor to N.W.A.'s "F**k Da Police" by a legion of opportunistic pundits who apparently hadn't actually heard it. However, Springsteen's lyrics displayed a degree of sympathy for the four Street Crimes Unit who killed Diallo after one of them mistook the victim's wallet for a gun.

"You're kneeling over his body in the vestibule, praying for his life," sang Springsteen, apparently in reference to the actions of Officer Sean Carroll, who wept openly as he administered CPR in a desperate attempt to save Diallo's life.

The song certainly reflected the opinion that the needless slaughter of Amadou Diallo was, to an extent, a product of racial profiling. It also captured the grim reality that urban residents often have at least as much to fear from the police as from common street criminals:

Lena gets her son ready for school She says "On these streets, CharlesYou've got to understand the rules If an officer stops you, promise me you'll always be polite And that you'll never ever run away Promise Mama you'll keep your hands in sight."

Whatever the merits of Springsteen's treatment of the Diallo killing, his song didn't depict the officers themselves as deranged predators. However, from the perspective of Lynch and other police union officials, Springsteen had committed a form of lèse majesté by focusing on victims of needless police violence.

Proving himself to be as tone-deaf as police dogs are color-blind, Lynch denounced Springsteen for "trying to fatten his wallet by reopening the wounds of this tragic case at a time when police officers and community members are in a healing period." (Lynch's choice of words was singularly inapt, given the role a wallet played in Diallo's violent death.)

Springsteen – like many others – didn't see the need to treat the police as victims in this episode, given that the SCU officers avoided both criminal and civil penalties and suffered no professional consequences. Diallo's parents, on the other hand, had to bury their innocent son.

The officers who gunned down Diallo were following legitimate leads in pursuit of an individual who had committed crimes of violence against innocent people. Their actions most likely were the product of panic, rather than depravity. Still, given that an innocent man died at their hands, the SCU officers should have faced some kind of accountability.

It's also worth contemplating the treatment a civilian would receive were he to shoot and kill a police officer under similar circumstances.

If Maye had been gunned down as Diallo was, the incident almost certainly would have been treated as a tragedy, rather than a crime, and the public would have been admonished by the police and their media stenographers not to second-guess brave officers tasked to do "dangerous work" entailing "split-second decisions." No similar official sympathy was ever extended to Maye, who had to make a split-second decision when dealing with a party of armed strangers who had invaded his home and threatened his family.

According to the State, Maye's actions, though purely defensive, amounted to first-degree murder. After all, he – a Mundane – had dared to lift his hand against one of the State's Anointed, who are invested with an unqualified license to kill.

Recent actions by federal courts suggest that while it's perfectly all right for mere Mundanes to keep firearms, actually bearing them is a privilege reserved exclusively for those mockingly referred to by Second Amendment sentinel David Codrea as the "Only Ones" – that is, members of the State's enforcement caste.

On December 23, the First Circuit Court of Appeals dismissed a civil rights complaint filed by attorney Greg Schubert of Springfield, Massachusetts, who was disarmed and detained at gunpoint by police officer J.B. Stern while on his way to court.

After noticing that Schubert was carrying a concealed pistol, Stern erupted from his vehicle in what was described as a "dynamic and explosive manner," racing over and shoving his gun in the attorney's face. After his gun was confiscated, the attorney provided both his "Class A" gun license and driver's license. Stern kept the gun and told Schubert that he would have to retrieve it from the Springfield Police Department.

By way of a contemptuous parting gesture, Stern insisted that he was "the only person allowed to carry a weapon on his beat." This would help explain the fact – cited by both Stern and the Circuit Court – that the neighborhood in which this assault took place is a "high-crime area." Disarming the law-abiding tends to engender, rather than extinguish, violent crime, of course – but we shouldn't forget that civilian disarmament is carried out for the benefit of rulers, not subjects.

A little more than a week earlier, the U.S. District Court for Georgia's Northern District dismissed another civil rights complaint filed by Christopher Raissi. In October 2008, Raissi was surrounded by police, forcibly disarmed, and detained for a half-hour when he attempted to board the MARTA train while carrying a concealed firearm. After Raissi was able to produce his license to carry a concealed weapon, his gun was returned to him – but not before a lengthy and potentially lethal encounter with the police.

In dismissing Raissi's complaint, Judge Thomas W. Thrash Jr. described possession of a state-issued firearms license as "an affirmative defense to, not an element of, the crimes of boarding [public transportation] with a concealed weapon and carrying a concealed weapon." Somehow, according to the judge, this justifies the actions of the police in detaining and disarming Raissi.

John Monroe, Raissi's attorney, points out that the decision means that "everyone seen carrying a firearm in any place that is prohibited without a license is subject to being stopped, arrested, and prosecuted even if they have a license." In principle, this should apply to police officers as well as private citizens. In practice, of course, this standard means that only law enforcement personnel would have a license to bear arms in public.

A license of any sort, of course, is a government-issued document that transmutes an innate individual right into a State-conferred, and state-revocable, privilege. Raissi's case demonstrates that the only advantage conferred by a firearms license is an "affirmative defense" against a spurious criminal charge.

Advocates of a State monopoly on the use of force would not be appeased if the civilian population were entirely deprived of access to firearms. Efforts are underway to criminalize civilian use of purely defensive weapons.

In early December, California's Second District Court of Appeal overturned an 11-year-old state law forbidding felons to possess body armor. The law was challenged by Ethan Saleem, a parolee convicted of voluntary manslaughter who was arrested in 2007 when police noticed that he was wearing a 10-pound bulletproof vest.

In fact, since neither Saleem nor any of the other passengers at the time of the traffic stop was armed, and given that he wasn't accused of any other offense, it's only a self-serving insinuation to suggest that he was detained en route to a crime.

California Attorney General Jerry Brown, insisting that police are acutely threatened by possession of "military-grade body armor" by felons, has promised to appeal the decision to the state Supreme Court.

"The increasing number of assaults with deadly weapons against our frontline public safety defenders is a clear indication that we cannot give violent felons the upper hand. There is an absolute need for a ban on these types of body armor for anyone other than law enforcement personnel or law enforcement-related personnel. The men and women defending public safety across the state and the people of California deserve no less." (Emphasis added.)

Beck's statement is a tower of non-sequiturs piled unsteadily atop a foundation of begged questions.

Beck begins with the unwarranted assertion that police confront unprecedented danger from firearms; in fact, 2009 (as I've previously pointed out) was a remarkably safe year for police, even in the context of a decades-long decline in the number of duty-related firearms deaths.

Beck somehow assumes that the proposal to ban ownership of body armor by law-abiding civilians follows logically from his desire to restrain violent felons. He compounds that fallacy by asserting that the "people of California deserve no less" than the privilege of being deprived of legal access to a purely defensive weapon.

Not surprisingly, the LAPPL, which the same police union that describes civilian ownership of body armor as an unacceptable threat, went into paroxysms of outrage over a Ninth Circuit Court of Appeals decision that imposed modest (and inadequate) limits on the use of Tasers. Specifically, the court ruled that the use of a Taser by a police officer to subdue a mentally troubled but non-violent 21-year-old man constituted excessive force.

In this case, the victim – 21-year-old Carl Bryan – lost several teeth when he fell face-first to the pavement after being tasered by Officer Bryan McPherson. At the time of the Taser strike, Bryan and McPherson were separated by a distance of fifteen to twenty feet. Bryan, who had been stopped for a seat belt violation, was throwing what McPherson called a "bizarre fit" but did nothing to threaten the officer or anybody else.

"As every street cop knows, any suspect within 15 feet who is actively resisting verbal commands is a threat to officer safety," sniveled the union. "When a suspect fails to comply with verbal commands, it means the situation is rapidly escalating and some form of force will be required to gain compliance. Non-lethal force is the safest and best way to obtain the needed compliance. Non-lethal force instruments are designed to avoid injury to both officers and suspects by swiftly incapacitating the suspect."

Two problems thrust themselves upon us. The first is posed by the fact that the Taser is not a "non-lethal" weapon; it is a frequently lethal one.

The second problem is best stated as a question: What about those increasingly common incidents in which innocent individuals are faced with unwarranted and improper police demands for "compliance"? Why should we assume that in such circumstances it is proper to protect the policeman by incapacitating the recalcitrant civilian, instead of the civilian taking prudent action to protect himself from a criminal assault?

It is possible to protect one’s self from the potentially lethal effects of a Taser strike. Florida-based body armor company called Point Blank Solutions sells a Taser-resistant fabric called "Thor Shield" that has successfully been tested against stun weapons of up to 900,000 volts.

"In today's marketplace there are more and more non-lethal energy weapons for police, military and civilian use, with no defense from these devices," observes the company, which proudly announces that it has "stepped up to fill the void in energy weapon protection."

Thor Shield is composed of a polyester fabric layered over a conductive material; it is designed to create a circuit loop that will return the electric charge to the weapon without inflicting a shock to the subject.

"If you are hit, the Taser gun won't work," explains George Shultz, who invented the fabric. "We return the voltage back to the gun." Light and breathable, the fabric is thin enough to be sewn into clothing.

G2 consulting, the Arizona-based contractor that serves as the exclusive distributor of the Thor Shield anti-Taser fabric, "is committed to Officer safety." For this reason, Thor Shield "is only sold to Military and Law Enforcement Agencies" under a non-disclosure agreement. The fabric is used in clothing intended to protect a law enforcement officer should his Taser fall into the "wrong" hands.

Somebody will eventually reverse-engineer Thor Shield or devise another suitable counter-measure to the portable electro-shock torture device and make it available to the productive segment of the population. At that point the air will be rent with anguished cries about the new threat to "officer safety" and demands for legislative action to criminalize private ownership of Taser-resistant fabric.

Well, if police are permitted to assault and detain peaceful citizens legally bearing arms in public, and civilians are forbidden to wear enhanced clothing intended to protect themselves against bullets and high-voltage energy weapons, we can still cower in our heavily fortified domiciles, can't we? A man's home is his castle, and all that?

Maybe not.

Last November, a measure went into effect in Oklahoma that makes it a felony, punishable by a five-year prison term and a $10,000 fine, to "fortify" a home "for the purpose of preventing or delaying entry or access by a law enforcement officer."

Under the measure, written by Republican (natch) State Representative Sue Tibbs, it is impermissible to "construct, install, position, use or hold any material or device designed ... to strengthen, defend, restrict or obstruct any door, window, or other opening into a dwelling, structure, building or other place to any extent beyond the security provided by a commercial alarm system, lock or deadbolt, or a combination of alarm, lock, or deadbolt."

Predictably, this measure is one of the many disfigured offspring of the War on Drugs, a singularly fecund progenitor of legislative absurdities. The measure specifies that its provisions apply to buildings in which drug offenses are "being committed, or attempted."

However, given the depraved ingenuity of prosecutors, it's safe to assume that some way will be found to apply it in cases without a clear "drug nexus." And it wouldn't surprise me at all to see similar measures – most likely cultivated by police lobbyists – cropping up elsewhere.

Given ongoing efforts to criminalize civilian efforts to protect themselves in non-violent fashion against official violence, Patrick Lynch's "lift one finger" standard could be considered a moderate view.