Thursday, September 29, 2011

Is the United States a Police State?

by John Grant

Honorable people like to debate whether the United States of America is a "police state," but when it comes to shutting down the expression of ideas on the political left, there's little room for argument.

We are inundated in this country with propaganda boilerplate about being the greatest democracy in the world. No, we're not a police state like our friends in Saudi Arabia or our former friends, and current enemies, in Iran. Our police agencies have figured out how to accomplish police state repression in a "softer," more sophisticated manner.

Look at the video in the September 26 report by Lawrence O'Donnell [1] of MSNBC on what he describes as a "violent burst of chaos" caused by armed "troublemakers" from the New York Police Department.

It was a peaceful demonstration against Wall Street greed. At least it started out that way. All evidence suggests it was, then, sent careening into chaos by the police strong-arming of young protesters who had done nothing but express their views in public.

In one incident, young women on the sidewalk observing the arrest of a young man in the street are corralled by cops using orange plastic nets. White-shirted Deputy Inspector Anthony Bologna, then, walks up, un-holsters his pepper spray gun and sprays the women full in the face [2]. He re-holsters his weapon and walks away. Another video shows him doing the same thing indiscriminately to others in an apparent violation of NYPD rules that say the spray is only authorized to disable someone resisting arrest. Over 80 people were arrested in the melee.

The MSNBC video also shows a young man with a camera being violently slammed into a parked Volvo for videotaping the actions of the police. As O'Donnell emphasizes, videotaping cops is a completely legal activity. In fact, the First Circuit Court of Appeals ruled last month on exactly this situation in a case involving a man who videotaped cops beating a man in Boston Commons.

(For a PDF of the ruling, go to: [3] )

The case is instructive. It began with a federal lawsuit brought by Simon Glik, a Russian immigrant who had become a lawyer in the US. He saw cops beating a man and took out his cell phone to videotape them. He was told to stop and he refused. Police arrested him, confiscated his phone and deleted the video. They charged him with illegal wiretapping since his recording included audio.

The district court scoffed at the wiretapping charge and concluded just because "officers were unhappy they were being recorded during an arrest ... does not make a lawful exercise of First Amendment rights a crime. ... [The] First Amendment right publicly to record the activities of police officers on public business is established."

The City of Boston and the individual police officers involved appealed the ruling, and the 1st Circuit upheld the district court. The justices pointedly demolished the notion often used by police officers that the law on the matter is unclear.

As to whether videotaping cops beating people on a public street is constitutionally protected behavior, they wrote: "Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."

And this protection applies to everyone -- including "bloggers" and other private citizens with cameras or cell phones. Again, contrary to what police agencies like to say when confronted with cameras in embarrassing situations, one does not have to be a credentialed mainstream media journalist with a government-obtained "press badge" to qualify for First Amendment protection.

As to citizens making their displeasure about police actions known, the 1st Circuit cites a Houston case from 1987: "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state." That is, one has a clear right to make faces or express disfavor at police actions -- as long as one doesn't physically interfere with those actions.

The justices emphasized "the fundamental and virtually self-evident nature of the First Amendment's protections in this area." Citing another 1st Circuit ruling from 2009, they wrote: "We thus have no trouble concluding that "the state of the law at the time of the alleged violation gave the defendants [the police officers] fair warning that their particular conduct was unconstitutional.' "

The court is saying all this is so clear cops should know slamming a man against a Volvo for videotaping is a violation of law.

In the Wall Street melee, white-shirted commanders popped up a lot in videos as the worst abusers. As leaders, these officers should be informing their subordinates that this sort of "police state" activity is culpable behavior and, as frustrating as it may be, cops simply have to learn to live under the gaze of citizens' cameras.

MSNBC's O'Donnell was dogged in his coverage of the story. About the man with the video camera being slammed against the Volvo by a white-shirted commander, he said: "There's a very brave man in this picture and it's not the guy in the white shirt."

Thanks to all the coverage and 400 complaints, the NYPD has had to back off its initial dismissals that all the pepper spraying was "appropriate" and declare it will open an investigation [4], especially of Deputy Inspector Bologna, who, according to The New York Times, "works in counterterrorism." O'Donnell was rightfully skeptical such an investigation would be anything but a traditional whitewash. A department spokesman still insisted that Bologna's actions were "motivated by his concern for the safety of officers under his command and the safety of the public."

What's going on here?

The best explanation for all this is in a 1990 book called The Police Mystique: An Insider's Look At Cops, Crime and the Criminal Justice System by Anthony Bouza, a man who served in a host of leadership roles in the NYPD, closing his career as chief of police in Minneapolis. The "mystique" he describes involves the ironic power of the cops at the bottom of the police hierarchy and the great discretion extended to them to accomplish their mission.

Here's some of Bouza's insights gained from 36 years managing cops:

"[Police] work is peculiar in that the greatest power and autonomy exists at the lowest rank level. ... The system, in order to accommodate the need for action, is notably understanding of the errors that are bound to occur. Thus cops develop the sense that they can exercise power without too great a risk of being called too strictly into account for its use."

"Cops don't take real or imagined assaults on their authority lightly. ... A favorite ploy [of experienced cops] is to provoke an angry citizen into sufficiently loud outbursts to justify an arrest for disorderly conduct. The challenge is to push the target over an imaginary line that instinct will tell him or her constitutes a breach of something. The ability to maneuver the unwary into a trap is well known to cops but rarely realized by outsiders. ... Their temptation to cow those whose behavior they're trying to control into compliance often proves irresistible."

"[Cops have] the additional comfort of being able to rely on the substantial tolerance of a system that wants action and knows that it must be willing to tolerate errors in order to get it."

"Police power assumes its most formidable aspect when cops deal with the underclass. This is the group they've been pressured, implicitly, to control. ... A society, for example, that permits scores of millions to be undereducated and unemployed will not be patient with those who call upon it to attack these ills with more equitable distributions of wealth, social programs, and other "liberal' schemes. ... The overclass prefers to see the problems attacked through the highly visible "law-and-order' methods that promise easy solutions."

"The people's power, normally hard to define and difficult to see, can be a fearful thing once unleashed, particularly when aimed at the police department."

Watch the MSNBC video again and you'll see all of this played out in the streets near Wall Street.

When Deputy Inspector Bologna walks up and, absolutely unprovoked, sprays young women bystanders in the face with pepper spray, besides any personal unsavory and sadistic impulses he might have harbored, he is undertaking a variant of the "favorite ploy" to provoke that Chief Bouza describes.

In fact, the whole Monday melee can be seen as a case of cops poking and shoving citizens to "cow" them and "push the target over an imaginary line" -- using rude provocation to turn a peaceful protest into a scene of chaos and havoc that, then, can be blamed on the "underclass." In this case, that underclass is young, non-affluent Americans fed up with the direction of their society and the absence of venues to do anything about it -- and courageous enough to speak out in public.

The result is a peaceful protest is turned into a melee justifying arrests.

How did we get to this place?

Anthony Bouza wrote his book in 1990, a much more "innocent" time of relative peace after the fall of the Soviet Union and before the Gulf War. Then came the 9/11 attacks, the Bush Administration's declaration of a Global War On Terror ("You're either with us, or you're with the terrorists.") and the astonishing rise of a globally based Homeland Security apparatus noted for the unprecedented linkage of military forces, civilian contractors and federal, state and local police agencies into a massive and frightening leviathan that operates in secret and is totally out of control.

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