I am proud to know Jack Dunphy, and I am especially pleased that he occasionally exposes my readers to his highly entertaining writing style in postings on this site. Jack is able to stand up for himself, and doesn’t need me to help out. Still, I find it highly annoying to see numerous people distorting a recent blog posting of his at NRO’s The Corner. It was bad enough when the radical libertarians like Radley Balko and Brian Doherty did it. But now that an L.A. Times editor is getting in on the act, I feel I must speak out.
So, since the president is keen on offering instruction, here is what I would advise he teach his Ivy League pals, and anyone else who may find himself unexpectedly confronted by a police officer: You may be as pure as the driven snow itself, but you have no idea what horrible crime that police officer might suspect you of committing. You may be tooling along on a Sunday drive in your 1932 Hupmobile when, quite unknown to you, someone else in a 1932 Hupmobile knocks off the nearby Piggly Wiggly. A passing police officer sees you and, asking himself how many 1932 Hupmobiles can there be around here, pulls you over. At that moment I can assure you the officer is not all that concerned with trying not to offend you. He is instead concerned with protecting his mortal hide from having holes placed in it where God did not intend. And you, if in asserting your constitutional right to be free from unlawful search and seizure fail to do as the officer asks, run the risk of having such holes placed in your own.
When the officer has satisfied himself that it was not you and your Hupmobile that were involved in the Piggly Wiggly heist, he owes you an explanation for the stop and an apology for the inconvenience, but if you’re running your mouth about your rights and your history of oppression and what have you, you’re likely to get neither.
Now, please understand: the cop in this example is acting lawfully. He has pulled over a suspect in a 1932 Hupmobile, which I think you’ll agree is a very rare car:
and he therefore has reasonable suspicion to detain the driver for what sounds like an armed robbery of a supermarket. (I’m reasonably interpreting “knocking off” a supermarket in a “heist” to refer to an armed robbery.)
If the driver didn’t commit the robbery, he may believe that the stop is unconstitutional, and that, by failing to do as the officer asks, he is “asserting [his] constitutional right to be free from unlawful search and seizure.” But in fact, as Jack explained this morning, if the driver fails to comply with the officer’s demands (which may include such indignities as commanding the driver to raise his hands above his head, lie face-down on the ground, and/or submit to a brief detention in handcuffs), he is actually resisting lawful commands by a police officer conducting a lawful detention. Not only is said citizen going to lose his lawsuit for civil rights violations, he may find himself locked up for a misdemeanor violation of Penal Code section 148, subdivision a, subsection 1.
And if the driver casually ignores the fact that the officer might consider him a danger, for legitimate reasons the driver never imagined, the driver could indeed end up full of holes. For as the refuses to get his hands in the air, and instead reaches in his pocket to pull out his wallet — to show that he is really, say, an important Harvard professor, a famous writer for a libertarian magazine, or the editor of a big-city newspaper — his actions may cause the cop to think he’s going for a gun. Why else would the driver ignore the officer’s lawful command to get his fucking hands in the air? (And yes, the officer may say it in just that rude a fashion. Complain later, driver — but raise your fucking hands in the air now.)
For some reason, a few libertarian-leaning writers have not understood Jack’s point — and in their zeal to criticize him, they have misrepresented Jack’s point. In some cases badly.
Radley Balko started the ball rolling in a column titled The Henry Louis Gates “Teaching Moment.” Balko cautions readers not to display excessive deference to police, and cites numerous examples of genuine police overreaching (such as confiscating video cameras on public streets and such). Balko’s thesis is simple: “[T]he emerging lesson seems to be that you should capitulate to police, all the time, right or wrong. That’s unfortunate, because there are plenty of instances where you shouldn’t.”
This is true, but as Jack’s example shows, there are times when you may think you have the right to ignore the officer’s commands, but you really don’t. You can disobey, but you’d damn well better be right. Because if you judge badly, you could end up in jail or dead.
Balko misrepresents Jack’s point in support of his argument, saying:
Los Angeles Police Department officer Jack Dunphy (a pseudonym) oddly concluded at National Review Online that the lesson from the Gates/Crowley affair is that anyone who asserts his constitutional rights when confronted by a police officer risks getting shot.
(All emphasis in this post is mine.)
No, he didn’t. Jack posited a specific scenario involving a suspected armed robber, in which the officer is making a lawful stop of someone he believes to be armed and dangerous, and says that someone who refuses to obey the officer’s commands in such a scenario could end up full of holes. That’s far different from, say, a situation where a citizen tells an officer illegally searching his car for drugs: “Officer, I assert my constitutional rights! Please stop your search!” There’s no reason such a person would end up full of holes, and I wager that Jack Dunphy would never say otherwise. Balko is simply misrepresenting and oversimplifying Dunphy’s point to make it sound alarming, when it’s just not.
It gets far worse when we read Brian Doherty’s blog post, titled Anonymous LAPD Writer: Running Your Mouth About Your Rights Can Get You Shot, And Don’t You Forget It. I have personally met Doherty, and while I think he’s a radical libertarian, he seems like a nice guy. However, his blog post here is very misleading, and the title is really just crap. Go back and read the passage I quoted from Jack’s column. He doesn’t say running your mouth can get you shot. He says failing to obey the commands of a police officer who reasonably suspects you of being an armed robber can get you shot. And running your mouth about it afterwards — if you’re rude about the way you do it — might lose you an apology and an explanation, to which (Dunphy says) you would otherwise be entitled.
But it doesn’t make a very snappy or convincing blog post title to say: “Anonymous LAPD Writer: Failing to Obey the Lawful Commands of an Officer Who Reasonably Suspects You of Being an Armed Robber Can Get You Shot, And Don’t You Forget It.”
Also note how Doherty loads the dice by paraphrasing part of Dunphy’s quote:
[A policeman talking to a citizen is] concerned with protecting his mortal hide from having holes placed in it where God did not intend. And you, if in asserting your constitutional right to be free from unlawful search and seizure fail to do as the officer asks, run the risk of having such holes placed in your own.
Uh, no, Brian. This is not just any citizen talking to any policeman — although I can see where you might have gotten that impression from reading Balko’s column. Nevertheless, you’re a big boy, you read Dunphy’s post yourself, and you should have been able to overcome any misimpressions from Balko’s column, assuming that’s where you first saw it.
Finally, we get to the Dog Trainer editor.
Paul Thornton, an assistant articles editor at the L.A. Times, italicizes Dunphy’s sentence: “And you, if in asserting your constitutional right to be free from unlawful search and seizure fail to do as the officer asks, run the risk of having such holes placed in your own.” Thornton — a seemingly very nice guy who was my editor for the “Dustup” series with Marc Cooper — then says:
Note the italics — and consider that an armed officer of the law grotesquely warns any innocent civilian who cites his Constitutional protection against unreasonable searches that he runs the risk of being killed. I hope that a cop who pulls me over simply because another guy driving a blue VW Jetta committed a crime would exercise more restraint should I point out that the law is on my side.
OK, Mr. Thornton, a few problems here. The law is not on your side; it is not an unreasonable search; you are not just “any innocent civilian” but rather one reasonably suspected of a violent crime; and your blue VW Jetta is a bit more common than the Hupmobile pictured earlier in this post. This is pretty thin gruel on which to base this rather histrionic display of Outrage:
Dunphy is completely out of line here; any officer who considers citizens belligerent for asserting their Constitutional rights is a danger to the public and his department. Chief Bratton take note.
No, Mr. Thornton, you’re out of line for misrepresenting the nature of Jack Dunphy’s argument. Again, I don’t level a charge of deliberate misrepresentation; presumably you simply misunderstood what he was saying. Hopefully this post helps clear up any confusion.