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Arathain Kelvar wrote:
That said, assuming she kicked the bejeesus out of him, she was handcuffed and in a patrol car. She was not totally secured, but was a minimal threat. Bottom line, I believe he was angry at having been kicked, and responded out of anger. I don't see any scenario where punching a handcuffed perp in a patrol car is an appropriate response.
Whether he was angry or not or responded out of anger isn't really important; what's important is "were the officer's actions reasonable under the circumstances" under
Graham v. Connor. It's very easy to ascribe any motive we want to an officer when we don't like his actions; conversely unreasonable actions don't become ok just because the officer had honest or good intentions.
I certainly can imagine circumstances where a handcuffed person in a car might be a significantly greater danger, especially a much larger and stronger individual, but those don't really obtain here. However, in general, it's good to keep in mind that just because a person is in handcuffs does not mean they are controlled. I have seen small women in handcuffs manage to cause thousands of dollars in damage to the inside of a patrol car before. That still probably doesn't call for punching them in the face, but
Finally, there is a difference between "used excessive force in controlling a suspect" and "assaulted a suspect", the difference being "was the subject engaging in conduct the officer would reasonably need to use force to control?" She was, and that means that what the officer was doing was probably not an assault, even though it appears it probably was not reasonable. I stress "probably" to both though, because A) we don't have all the information and B) because it is possible to imagine actions by the officer that would be so unreasonable that they would be an assault. If, for example, he had shot her, or dragged her out of the car and smashed her face into the pavement, we would definitely recognize an assault since they go well beyond anything that could reasonably be related to stopping her from kicking. Neither of those situations or anything like them occurred though, so the appellation of "assault" is probably not accurate, and it should not be insisted upon - an offense should be described as it is, not based on the term that feels the most viscerally satisfying (and that means to people in general; I am not saying that's what you are trying to do here)
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How would this be treated in the wider world? If someone kicked me, and I laid them out, I would not expect the police to bother me about it. But that is primarily because I could make the case of an ongoing threat. That's a hard case to make here. In this situation, I would expect leniency based on the heat-of-the moment tit-for-tat exchange.
I think it's pretty obvious that if a woman came up to you in public and tried to kick you for some reason, and you hit her, that it would be self-defense, social attitudes towards striking women notwithstanding. The same would be true for the officer; in his case we might debate if pepper spray or a TASER or other techniques might be better than punching her, but an open situation is much more suited to deploying these devices than the inside of a car - and more importantly, we would be in the situation of trying to quibble over whether another response would have been more optimal after the fact, rather than viewing it from the perspective of the officer at the time.
Outside of certain sexual practices that are not germane to the issue, you would never be in a situation to have a person handcuffed in the first place. If you had someone handcuffed in the back of a car, it would be very hard for you to argue you were making an arrest. "How it would be handled for anyone else" isn't really relevant because it would be a fundamentally different situation. It's similar to any other situation which a person not properly permitted to perform the activity in the first place would not likely find themselves in. For example, if we evaluate the reasonability of the actions of pilots, we compare them to other pilots because the average person almost never finds themselves in the position of operating an aircraft in the first place.
While cops should be better prepared to deal with this than the average citizen, and should be held to a higher standard - that relates to their occupation, which I'll come back to. I'd expect the same leniency for a cop in that situation as I would for myself. From a prosecutorial standpoint.
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From an occupational standpoint, he failed here to conduct himself properly. Fired seems a bit harsh, but a substantial administrative leave, without pay, and an apology to the victim seems appropriate. Assuming this is the first such instance. Otherwise, he has no business being a cop if he can't control himself.
This is not an unreasonable stance, assuming that the full evidence available - not the least being an unedited video, and the officer's own explanation of his actions - is congruent with what we've already observed. However, the question of what he did or didn't do correctly from an occupational standpoint is exactly the question here, and while it seems that he didn't, we can't state that as undisputable fact. This is not to conclude that other evidence would mitigate the situation if it exists; it's possible that it would make it worse for him too.
Most importantly, we're missing his explanation of why he did what he did, and that has to be looked at in light of everything that he needed to do, which included his duty to control and transport a person he had placed under arrest, and the general lack of options for controlling a person who is kicking in the back of a car - there ARE options other than hitting the person, but they are limited, and not necessarily easy to execute. His side of the story cannot be looked at through a light of "well, the video shows this, so we're just going to let you have your say then dismiss it out of hand because video" either.
Fundamentally, video rarely tells the full story - in fact, it often tells far less of the story than people think it does. Unfortunately, video has a habit of making its way to the press and the public sans all the other contextual evidence that goes along with it, and it tends to deceive people into thinking its more complete than it actually is. It also has a tendency to be viewed as if the perspective and conditions of the viewer are the perspective and conditions of the officer. The officer rarely sees the situation from the camera's perspective, and he definitely does not have the advantage of getting to replay it over and over, nor go through the situation while sitting comfortably seated in front of a computer and knowing that it isn't actually him having to deal with it. In that sense, it's not really any different than replay in football - the players and referees are often judged overly harshly by laymen who can look at things over and over in slow motion. Or to take another example, people widely ***** about reporters getting shot up by attack helicopters in a war zone, and forget that a TV camera might look a lot more like a surface-to-air missile when you are the one facing getting shot down by it.
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