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by Peter Moskos

June 25, 2010

Trial of Officer London

I don't really have a problem with the first two minutes. The suspect, Walter Harvin, was aggressive and uncooperative. Harvin pushes Officer London at 0:26 and has to go. I turns into a messy arrest, but that's sometimes how it is.

As much as I don't like tasers... tasing this guy sure would have saved both officer and suspect a lot of trouble. Neither mace nor baton worked (though I can't see the mace).

Yet again, this shows the problem with expandable batons. They don't really work. They cause pain but they don't have stopping power. And they sure look bad when in use, wacking people again and again. The unpopular straight baton, which is much more like a small baseball bat, is a much better tool. It's cheaper, too.

But after minute three? After the cuffs are on? You can't give a guy an ass whuppin' because he's yelling, "I'm going to kill you" and you think he deserves it. You can't beat a guy till he shuts up.

We'll see what the jury says.

[And the hits at minute 8, necessary at the time, should never have needed to happen because Harvin should not have been able to get up and charge the officer.]

Here's the story in the Times and the Post.


Cleanville Tziabatz said...

Been waiting for your comment. Agree fully about the beating.

The thing I found sort of disturbing is the idea that Harvin needed to show id to get into a building he has lived in since he was a child. If the policeman needed reasonable suspicion for his stop* (and I realize that this is a low threshold), I am not sure the policeman had RS. Generally someone who pushes a policeman has to go, but if a policeman needs RS to stop somebody, doesn't have RS and the policeman tries to stop the innocent person anyway, then I don't think the "has to go rule" should apply. I think maybe the "suck it up" rule should apply in the case the initial, attempted stop is unlawful (which it may or may not have been in Harvin's case).

Disclaimer: not a police.

FOOTNOTE: Maybe he didn't need RS if this was subsidized housing or he was working a private gig for the landlord ore whatever.

Johnny Law said...

I'm not 100% sure but I think these buildings are public housing and they can set that standard for ID being required.

I was surprised that the officer lost it on the guy. He seemed very calm when trying to get the guy into cuffs. He didn't even seem to get worked up after being pushed. However I don't see how he can justify the baton strikes on a handcuffed prisoner.

PCM said...

This is an issue of contention in New York City. Legally the police are allowed to stop people in public housing and ask for ID. Public housing, like private housing, is not public space.

But morally there are issues here that are hard to resolve. And I know there is at least one lawsuit in the works.

The M.O. is police ask for ID. If you don't have it, they call or walk up to the person you say you're going to visit. If you can get in, fine. No problem there, right? It's like a public-payed armed doorman. I'd love to have one at my door.

But if the person you're visiting can't be reached or stepped out for a moment, you can and likely will get cited or arrested for trespassing.

While I believe the policy has the support of most residents, there are instances, more than a few unfortunately, in which people have been arrested for such things as delivering a meal to an invalid relative or not having ID and the key to their own apartment.

Legally such arrests can be justified, but is it ever morally right to arrest somebody for being in their own building?

Public housing should not be open with free public access for all. That is not safe. But enforcement needs to be done with a great amount of discretion and understanding. And also, it may sound minor but isn't, enforcement of trespassing needs to be done politely and with respect. Police officers need to remember that they're there to serve the public. It's too easy to forget that.

I should also mention that New York is the only city in American that hasn't embarked in large scale destruction of high-rise public housing. Public housing here basically works. And the NYPD, faults and all, deserve credit for that (the contrast between public housing here and in Chicago, where I grew up, is striking).

Personally, I wouldn't want to live in a hi-rise project, but many of my students do and they're not horrible places to grow up. And the waiting list to get in can take years.

What would help is if more officers spend more time in one project. Though I understand why you wouldn't want to spend your whole career is the same project, if ever a beat officer served a good purpose, this would be the place.

Ideally, officers would know, like a doorman, who lived where (at least mostly). I really think that would avoid a lot of the problems. But that's not the way it works.

And when I hear residents complain, it's mostly about new young officers (often from Long Island) coming in scared and ignorant and treating people who have lived in a location all their lives with disrespect. You add to that pressure to "produce" (ie: citation and arrest quotas), and you're asking for trouble.

Cleanville Tziabatz said...

Thanks for the explanations on public housing. Sounds like the policeman had sufficient legal cause to stop Mr. Harvin in the first place, and should not have been pushed for doing it.

PCM said...

My explanation, it turns out, is a bit out of date. At least officially. The NYPD revised the Patrol Guide on June 10th in this regard. You can read the new order here. It does set up a reasonable suspicion standard. Sort of. It is not clear how this will actually change anything. I suspect someone who refuses to answer questions would and should be considered suspicious.

A friend writes, "The new policy is mainly cosmetic, designed to extricate NYPD from its growing legal problems. The only sign of change is that it seems to direct the patrols to chase, rather than arrest trespassers."

Anonymous said...

I am doubtful that Officer London had RS here, to the extent that is required at the entrance of a public housing bldg.

Frankly, if a suspect gives a little push to fend off an unjustified Terry stop, I don't think that should be a crime or a problem.

Not saying that Officer London needed RS, and also not saying for sure that he didn't have it. Something more than large black man doesn't want to talk should be required for RS, though (again, to the extent that RS was actually req'd at a public housing project).

PCM said...

This happened in 2008, before the new order. The officer's initial actions were undoubtedly allowed and legal.

Regardless, you push a cop, you're going to jail. End of story.

Anonymous said...

Regardless, you push a cop, you're going to jail. End of story.

That is overly simplistic. If the policeman is acting outside the 4th Amendment, it should be permissibleto push.

State laws that say otherwise are, or should be, considered unConstitutional.

It is already recognized that you get to push if a policeman is using excessive force, so that is an exception to the rule you propose.

PCM said...

But you're still going to jail.

Cleanville Tziabatz said...

People who teach policemen should definitely teach them not to arrest for things that aren't crime. To the extent they don't do this, they are remiss in their basic duty and should feel ashamed.

Johnny Law said...

"State laws that say otherwise are, or should be, considered unConstitutional."

Just because you disagree with something does not mean it is unconstitutional. Most states do not give a person the right to resist an unlawful arrest. This is to prevent anarchy. You think you are being arrested unlawfully? Take it up with the judge and possibly a civil lawsuit. Don't duke it out on the sidewalk.

PCM said...

I'm no expert on this, but it seems that many states do not allow people to resist a lawful arrest (on the grounds that such resistance would result in the suspect's or an officer's death).

On google books I just found Defendants Rights Today by David Fellman, pp 36-41.

States mentioned that have abolished the right to resist arrest include California, New Hampshire, Delaware, Rhode Island, New Jersey, and Illinois.

And this is from 1978. If anything, I imagine more states have restricted such a right since then. And it seems the last time the Supreme Court spoke on such a matter was 1900.

You know, some people think the income tax is unconstitutional. Similarly, they're wrong.

PCM said...

Seems to be allowed in Ohio. State v. Hendren (1996) (if the internet is to be believed) said that it is never unlawful to resist an unlawful arrest (and it was error to instruct the jury otherwise).

I'd be curious to know the states that allow resisting unlawful arrest and the states that don't.

IrishPirate said...

The idea that you get to resist police if you "personally" believe a law is wrong, silly, or in your distinguished and scholarly opinion unconstitutional, is mindbogglingly stupid.

We're not talking the fugitive slave law and this isn't 1859.

Unless a law rises to the level of evil of the fugitive slave law or something akin to that then you better just put on your cowboy boots and work to change the law.

Those two idiot young women who fought the Seattle cop over the jaywalking ticket, may after years of study and in depth constitutional analysis believe those tickets are unconstitutional. That righteous analysis didn't give them the right to fight the cop.

For the record I am a congenital jaywalker. This is Chicago I wave to cops and then jaywalk right in front of their standing cars. They typically wave back.

Sic Semper Jaywalkus Tyrannusasurus Rexus.

Cleanville Tziabatz said...

This is a fascinatinating legal issue and one that I have spent some time looking into.

Some states allow resistance to unlawful arrest arrest, while others do not.

However, there are a lot of ancillary issues, such as the following:

1. Statutes that forbid resistance to unlawful arrest have not had their constitutionality tested (unlike, say, the income tax statutes). The most recent, relevant SCOTUS precedent is from 1906 and seems to indicate that there is a 4A right to resist unlawful arrest.

2. Even if states can forbid resistance to an unlawful arrest, they cannot forbid resistance to excessive force. However, if the arrest is unlawful, then any and all force, exercised by the popo, is unlawful. It is difficult to see a difference between resisting an unlawful arrest and resisting excessive force that is excessive merely by virtue of the fact that the arrest and/or terry stop is unlawful. This contradiction is sorely overdue for judicial resolution.

3. Even where states have clearly outlawed resistance unlawful arrest, they have not generally outlawed resistance to an unlawful Terry stop. It should be noted that the policy considerations are different in the Terry stop context. What I mean is that, in the case of an unlawful arrest, there will generally be an arrest and paperwork and either party will have a meaningful opportunity and motivation to bring the case b4 a judge. To put the preceding sentence in the vernacular: a false arrest will generally have some serious bling-bling attached to it (unless the policeman lies and gets out of it). An unlawful Terry stop is not like that. Generally, the one who suffers the unlawful humiliation is supposed to (and does) suck it up and not bring a lawsuit. Which means that there is not an effective remedy against unlawful Terry stops. Which means that lots and lots and lots of unlawful Terry stops are continuing to happen (as Prof. Moskos knows from polling his classes). There are significant policy reasons why low level "resistance" to an unlawful putative Terry stop should be allowed. Another reason is that low level resistance to an unlawful Terry stop is virtually required in order for the stopee to show that she has not given consent. The question of resistance to unlawful arrest should not be conflated with the question of resistance to an unlawful Terry stop (which it seems like this thread is doing).

PCM said...

Seeing how it's Gay Pride Week here in NYC, it just occurred to me the whole week in some way is a celebration of fighting illegal and unjustified police action: the Stonewall Riot.


Cleanville Tziabatz said...

But prosecutors said London went too far, and then compounded his misconduct with lies. London arrested Harvin and signed court paperwork saying Harvin punched him, which the video contradicts. London testified that he didn't read the papers carefully.


btw, he was acquitted, of course.