Saturday, November 24, 2007

Utah Tasing: Another Perspective

This past Wednesday, Digby posted an article at Hullabaloo, discussing a You Tube video of a Utah Highway Patrol officer tasing a motorist. The original article appeared on, and was written by Steve Watson. Digby's article garnered almost 300 comments.

Here's my take, as a former police officer, on the situation. Bear in mind, I was not present at the scene. Nor, for that matter, were any of the commenters at Digby's. My comments are based on the video as posted to You Tube, Watson's article, Digby's comments, some of the responses Digby received, and my experience stretching over 14 years in law enforcement. Excerpts are from the Watson article as posted on InfoWars, unless otherwise noted.

Mr Massey tells the officer he does not understand why he has been stopped or what he is being charged with, at which point the officer orders Massey to get out of the car.

The trooper can be clearly heard telling Massey (the motorist) that he had been stopped for a speeding violation (time stamp -9:16, "You were going kinda fast"). Massey apparently refused to provide his license and registration to the trooper, which is a violation in every state (time stamps -9:15, -9:10, "license and registration, right now"... -9:01, "No..."). The driver was ordered from the vehicle after he refused to sign the speeding citation (time stamp -7:39, "I'm not signing anything"). Signing the citation is not an admission of guilt; it is an acknowledgement that the motorist has received a copy of the violation. In most states with whose laws I am familiar (and I'm not a lawyer), if a driver refuses to sign the citation, the violation moves from an infraction to a situation requiring a custodial arrest. This is a decision made by either the Legislature of the state or, more commonly, whichever Commissioner has jurisdiction over motor vehicles in a particular state; it is not left to the officer's discretion.

The officer then puts down his clipboard and immediately takes out his Taser and points it at Mr Massey without any provocation whatsoever, yelling "Turn around and put your hands behind your back" as Massey attempts to point out the speed limit sign and engage the officer in conversation.

Based on what is seen in the video, I would tend to agree that the trooper probably was not justified in drawing his Taser at this point. However, we did not see whatever the trooper may have seen when he approached the car and looked inside while dealing with Massey. There may have been indications that led the trooper -- based on his knowledge and experience -- to believe that Massey presented a potential threat.

The Plains and Western states are home to a tremendous number of militias, survivalists, "Christian Identity" followers, neo-Nazis, white supremecists, "sovereign citizens", "redemptionists", and assorted other anti-government extremists, many of whom view the police -- or any semblance of authority -- as a dictatorship to be overthrown by force (see, for instance, the Anti-Defamation League's page on extremism). There may have been indications within the vehicle -- not visible to the dash cam -- that Massey potentially subscribed to some of those beliefs. (And, yes, it is equally possible that there were no such indications; I'm simply saying that we cannot see what the trooper saw).

Insofar as Massey had already evidenced his unwillingness to cooperate, the trooper was within his rights, under Terry v. Ohio, 392 U.S. 1 (1968), to consider searching Massey for weapons. Additionally, if the trooper had a reasonable and articulable concern for his own safety, he would be justified in handcuffing Massey. Handcuffing, under these circumstances, does not constitute an arrest.

A shocked Massey asks "what the hell is wrong with you?" and backs away, turning around as the officer had demanded[....]

The video, as I view it, does not show Massey "turning around as the officer had demanded"; rather, it seems to me that Massey is walking away from the trooper and returning to his car (see time stamp -7:23; he is, in fact, walking away from the trooper). Again, based on what the trooper may have seen in the vehicle, he might have reasonably concluded that Massey was returning to the vehicle to retrieve a weapon.

He then asks for his rights to be read and points out that the officer cannot arrest him without doing this.
Also, see time stamps -4:34 and -3:44, "You cannot arrest me until you tell me my rights..."

This is a misconception that has affected society for years. Miranda v. Arizona, 384 U.S. 436 (1966) does not require "Miranda" warnings at the time of arrest. Miranda comes into play only during "questioning initiated by law enforcement officers after a person has been taken into custody...."

In other words, the warnings are required only under these circumstances (as laid out in the Supreme Court decision):

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. Pp. 467-473. [Emphasis added]

In this case, Massey was not in custody as defined by Miranda, nor was he being subjected to "custodial interrogation." On television, Miranda warnings are an integral part of the arrest process; in the real world, however, many arrests do not require the warnings as there in no intention of conducting a custodial interrogation. Certain information -- name, date of birth, address, driver's license, etc -- may be requested without triggering Miranda safeguards; refusal to provide this information is generally considered a separate offense, generally custodial in nature (if the person refuses to identify himself, the officer is usually required by statute to take the offender into custody).

The officer had no legal right to make Massey sign any document he did not understand.

Every state, and the Federal government, view driving as a privilege, not a right (despite what most teenagers claim). This is why drivers licenses may be suspended or revoked after one or more convictions for driving offenses. Part of the legal background to obtaining a license is what could be called an "implied knowledge" of driving laws and regulations -- the "ignorance is no excuse" theory. Generally, these laws and regulations include what the driver's responsibilities are in violations. Again, once Massey refused to sign the citation, the trooper probably was required to take Massey into custody.

In commenting on Watson's piece, Digby says:

Word to the wise. Do not ever question the police, no matter whether they are violating your rights, ignoring the constitution or breaking the law. It is perfectly legal for them to torture you on the spot if you do.

From viewing the video, and applying what I learned over fourteen years, I have the following comments:

"...they are violating your rights..." The operator of a motor vehicle, on a public highway, does not have the right to refuse to provide his/her drivers license, registration, and/or proof of insurance to a police officer investigating a traffic violation. The operator does have the right to refuse to sign a traffic citation, but the operator must be prepared to accept the consequences, generally laid out in state statutes or regulations, for such a refusal. As noted above, the consequences generally include being taken into custody.

"...ignoring the constitution..." The trooper did not violate Massey's Constitutional rights. As I explained above, Miranda warnings are not required at the time of arrest, but rather at the time of custodial interrogation (if any).

"...breaking the law." At no point during the video, as posted, did the trooper violate the law. It was Massey who violated not one, but many laws.

Also, there are at least three obvious breaks in the video as posted: once when the trooper is writing the citation (time stamp -8:00), and others at time stamps -2:48 and -0:48. It is entirely possible that those "breaks" showed circumstances that would tend to undermine Massey's claim (or they could just be dead space that was edited out for brevity).

One of Digby's commenters, a former police police officer calling herself Carol, had this to add:

I forced myself to watch that clip, and as a retired peace officer, =my [sic] opinion is both the trooper and motorist were at fault. [...] I've had similar incidents in my career where the subject refused to cooperate and turned to leave before we were done. In each case, I explained quickly and briefly the options and consequences of their leaving without completing the detention - warrant for arrest, incarceration, huge fines, etc. At worst, I'd have to have a warrant issued for them to be stopped farther down the road, including escalation of force. But in no case was I warranted to use deadly force in preventing them from leaving.

I agree with Carol completely. Many people are perfectly willing to refuse to cooperate with cops (which is, after all, their right), but are unwilling to accept the consequences of their actions.

I had one such situation that still sticks in my mind. Sometime back around 1979, I stopped a vehicle for speeding. The operator refused to show any documentation -- license, reg, etc. I informed him that if he persisted in his refusal, I would apply for an arrest warrant for him. He refused, so I applied for a warrant. I served the warrant on him at work, placed him under arrest, handcuffed him, and led him from his office (he was a physician). He told the judge that he did not believe a police officer had the legal authority to make a speeding arrest, based upon Biblical and "constitutional guarantees of freedom of travel." He also told the judge the "only real law enforcement officer was a duly-elected sheriff." He further claimed that Superior Court, as an "equity court," (based on the presence of a gold fringe on the American flag) did not have jurisdiction over him. These claims are all part of the sovereign citizen creed. Needless to say, the judge did not buy his finely-honed legal reasoning. The man's license was suspended for a year for the motor vehicle charges, and he was incarcerated for seven months in the county jail for resisting and interfering. He received an additional four months for contempt -- he argued with the judge at sentencing.

Is it possible the trooper acted improperly or unreasonably? Yes, of course it is. However, I am not going to make that judgment call unless and until I have access to the full video of the confrontation. Nobody else should jump to conclusions without all the facts, either.

UPDATE: There is some interesting give-and-take in the comments to this post at PoliBlog, between the post's author, Dr. Steven Taylor and a commenter calling himself Paul. In comment #3, Paul makes many of the same points I made above, but he puts a different spin on a couple of them. Also, he brings up a couple of court decisions I had forgotten about: New York v. Belton, 453 U.S. 454 (1981) and Atwater v. Lago Vista, 000 U.S. 99-1408 (2001).

Paul makes another interesting and valid point in comment #7:

You seem concerned here with the officer’s obligation to diffuse the situation. I wonder: In your opinion, did Mr. Massey have any obligation to diffuse it? And couldn’t he have done so by simply signing the ticket and then seeking his day in court? Apparently, you would have the officer coddle Mr. Massey. I would not. The officer is not Mr. Massey mommy, and Mr. Massey is not a child.

I couldn't have said it better myself.

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