"Qualified Immunity": A License to Commit Criminal Violence

Beaten twice, then arrested: Shannon Kanda displays handiwork of the cops who "protected and served" her.

Two times on the same night, Shannon Kanda was severely beaten by two male strangers. The first pair of assailants gave her a bloody lip and a few mild bruises. The second group, who arrived a few minutes later, shattered her skull against a metal staircase handrail. As a result of that attack, the victim was forced to undergo reconstructive surgery to replace broken ocular bones.

Kanda had done nothing to provoke either attack. The first group of assailants fled and were never captured. The second – Officers Gregory Moore and Jonathan Cantrell of the Coeur d’Alene, Idaho Police Department – actually filed a battery charge against their victim.

After the first beating, Kanda – who was very intoxicated -- went to a friend’s apartment and called the police, in the familiar and entirely mistaken belief that they would be of help. 

When Officers Moore and Cantrell arrived, they asked her to come down to the parking lot where the attack had taken place. Kanda later explained that she hesitated because “she feared for her safety and was not assured by the officers present.”

As the three of them left the apartment, Kanda allegedly brushed away Officer Cantrell’s hand. Offended by this defilement of his consecrated person, Cantrell snapped, “Hey, you don’t hit the police” – as if the action of batting away uninvited contact from a stranger were a form of criminal assault. 

Seconds later, according to the police account, Kanda “swung” at Officer Moore. She doesn’t remember doing anything of the kind. She admits that she was drunk and unsteady, and that the officers “misjudged [her] unsteadiness … as movements threatening to their security.” 

Whatever it was that Kanda did, Moore reacted by attempting a “brachial stun” – a pressure-point strike to a nerve cluster at the side of the neck – but missed, and wound up slugging her in the jaw. Cantrell jumped in and both cops threw the victim face-down on the stairwell landing, slamming her face into the iron handrail as they did so. As she was bleeding into the pavement, Kanda was handcuffed and told that she was under arrest for “battery on a police officer.” Significantly, however, that charge wasn’t formally filed until after she had initiated a lawsuit against the department and the City of Coeur d’Alene.

Cantrell and Moore responded to that suit by insisting that the two of them – armed, highly trained, intrepid defenders of the public weal – faced an imminent threat from a drunk and traumatized woman, and “feared for their safety.” They also suggested that Kanda’s eye injury might not have been their fault – that it may have been inflicted by the first pair of thugs to assault her that evening. This would mean, of course, that they slugged and body-slammed a woman who had already been beaten up so severely that she required major surgery on the following day. 

 

Militarized police activity in Coeur d'Alene

The last argument in the officers’ arsenal was the inexhaustibly useful doctrine of “qualified immunity,” the unfailing legal shield of uniformed abusers.  U.S. District Court Judge Edward Lodge granted their motion to dismiss the suit, ruling that the “takedown” was justified, and that the act of shattering Kanda’s skull against a handrail was “unintentional.” Therefore, according to Lodge, “a reasonable officer in the Defendant Officers’ position could have concluded that their actions were lawful.” 

Bereft of options and resources, Kanda was compelled to plead guilty to the battery charge. She also had to endure the self-pitying commentary of Police Chief Wayne Longo, who simpered that his officers often respond to “difficult situations” and find themselves “targets of meritless lawsuits.” 

If Kanda had won her lawsuit, neither the political clique ruling Coeur nor their costumed emissaries of violence would have personally paid the judgment. However, once the suit was dismissed on the grounds of “qualified immunity,” the municipal government informed Kanda that it would seek a court order requiring the victim to pay the city’s legal costs.

Fortunately, Kanda won her appeal to the U.S. Ninth Circuit Court of Appeals, which quite sensibly observed that no “reasonable” officer could consider body-slamming an already traumatized woman’s head and driving her face into a steel railing to be “proportionate under the circumstances.” The District Court’s ruling was reversed and the case was sent down for further proceedings, which are still underway.

Shannon Kanda’s ordeal is both intensely infuriating and tremendously useful. It is difficult to conceive of a more compelling illustration of the fact that state-sanctioned criminal violence is dramatically worse than the private sector variety.

Rather than pursuing the thugs who had attacked Kanda, the police who had been summoned to “help” made it their priority to punish the victim for being insufficiently deferential to their “authority” by inflicting an even worse beating on her. The machinery of “justice” then punished her again when she sought redress for her injuries. To paraphrase the eternally relevant insight from Edmund Burke, Kanda found that the agents of the “policed society” in which she lives were of no use in protecting her, but ready and eager to complete her ruin when given the opportunity.

The violence inflicted on Kanda by Cantrell and Moore was incontestably criminal in nature, and should have been prosecuted as such. The most significant obstacle to prosecuting that crime – and similar ones committed under the color of state “authority” in Idaho, most likely every day – is found in 37 words added in 1997 to the section of the Idaho State Code dealing with assault and battery:

“No peace officer may be held criminally or civilly liable for actions or omissions in the performance of the duties of his office under this chapter, if the peace officer acts in good faith and without malice” (18-921).

There is no reason to believe that if Kanda had been slugged and body-slammed by two private citizens, her assailants would have been able to avoid prosecution by attesting to their own “good faith” and absence of “malice.” Neither would the armed functionaries called police, if they were authentic peace officers. Police, however, are part of a privileged criminal caste. They claim the right to violate the moral law by committing aggressive violence, and an exemption from prosecution for such criminal acts.

In his magisterial work For a New Liberty: The Libertarian Manifesto, Murray Rothbard observed that for a reasonably free society to exist, “police and the other authorities [must be subject] to the same law as everyone else….. [I]f everyone is supposed to be subject to the same criminal law, then exempting the authorities from that law gives them a legal license to commit continual aggression.”

That license is found in the abhorrent doctrine of “qualified immunity,” which the Idaho State Code condenses into 37 words. One immensely useful reform – pending the complete abolition of the coercive caste, of course – would be to delete that provision from the Idaho Code, and to do the same with similar measures in other states.

Police accused of “excessive force” often complain that it is difficult to calibrate the acceptable level of coercion, and insist that as long as they believe their actions are lawful, they can’t be questioned. Abolishing the spurious doctrine of “qualified immunity” would relieve police of that burden by requiring them to recognize that all aggressive violence is criminal, and will have individualized legal consequences.

“But if this principle is adopted, it could effectively end law enforcement as we understand it!” police apologists would protest. To which I would reply: “Oh, good – I see I’m not going too fast for you.”

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The Smell of Fear

Either as a result of their hyper-acute sense of smell, or an instinctive ability to decipher behavioral cues, dogs have an uncanny ability to detect fear. Owing to the relentless indoctrination they undergo regarding the primacy of “officer safety” and the supposedly all-encompassing threat environment in which they operate, cops exude a dense musk of fear that dogs can probably detect. This might help explain why casual encounters between dogs and cops frequently end with the dog being shot and left to die.

On October 7, Cherrie Shelton of Albany, Georgia saw Patches, her two-year-old Jack Russell Terrier, gunned down by a probation officer named Antoine Jones on her front porch. Shelton began to explain that the tiny dog – who posed no conceivable threat to anybody – didn’t bite. By that time, however, Jones had already pulled out his gun and taken aim. He fired a single round that entered the dog’s left side, exiting through its stomach.

Shelton spent a half-hour desperately trying to save her dog. When she angrily demanded to know why Jones – who had visited the home before – shot the harmless dog, the 300-pound emissary of the tax-fattened class insisted that the 12-pound Jack Russell Terrier made him “fear for his life.” The Georgia Department of Corrections later issued a statement saying that its valiant officer had “acted appropriately” by slaughtering a dog that posed no threat.

On October 20, it was Boise resident Gabrielle Stopkai’s turn to watch as a police officer gunned down the family dog, a mixed-breed named Kita. The officers had visited the neighborhood following a reported robbery, but were not responding to that call when they passed by Stopkai’s home. Two weeks earlier, the five-year-old dog had given birth to a litter of six puppies, and she had become predictably apprehensive when strangers would approach. 

The officers claimed that Kita had “charged” them, snarling and acting “aggressively.” Stopkai and other witnesses insist that the dog’s behavior, while territorial, wasn’t threatening. The encounter lasted five seconds, ending when an officer fired a single shot into the back of Kita’s head from a distance of about three feet. Among those who witnessed this act of casual cruelty was Stopkai’s two-year-old son.

Survivor: One of Kita's six motherless puppies.

According to Stropkai, the Boise Police Department told her they wouldn’t even bother to investigate the actions of its officers, because the reflexive destruction of her dog is within department policy.

“As with every citizen, a person has the right to defend themselves,” sniffed Boise PD information officer Charles McClure. This is true, but irrelevant. Anybody not wearing the habiliments of the state’s punitive priesthood would be required to demonstrate that the dog had posed a genuine threat, and would face civil and criminal liability for the gratuitous destruction of another individual’s property. 

Police are supposedly bold and intrepid defenders of the public weal, yet every time a cop guns down a dog we’re told, in effect, that officers are uncommonly timid and high-strung creatures who are all but paralyzed with fear at the approach of an unfamiliar canine. We never hear or read about people who provide useful services being “forced” to defend themselves against supposedly aggressive dogs by killing them. Yet “puppycide” by police is something that occurs every day. 

The critical variable is not the behavior of the dog, but the sense of impunity granted to police officers. They don't shoot dogs because they have to, but because they can.

 

Officers salute "K9 Officer" about to be euthanized.

Police consider themselves entitled to shoot any dog that barks in their direction. They likewise claim the supposed authority to arrest and prosecute any Mundane who “threatens” or “distracts” a police dog – or, as they would describe the creature, “K-9 officer.” 

It’s common for police departments to hold retirement ceremonies for police dogs – in fact, the day after two Boise police officers gunned down Kita, the department announced the “retirement” of a drug detection dog named K.C. Retired police dogs are frequently given official funerals, and sometimes listed in the roster of “fallen officers.”

Not surprisingly, things are handled much differently when a police dog inflicts actual injury on a member of the productive class.  

A police dog in Brazil, Indiana attacked an 11-year-old boy and mangled his leg during a War on Drugs agitprop event at the county courthouse. The officers immediately reacted to this assault by drawing their service revolvers and gunning down the dog. No, of course they didn’t: The official response was to cut the victim in for a share of the blame.

“One of the children – an 11-year-old male – had moved quickly,” insisted Brazil Police Chief Clint McQueen. “The dog responded quickly, grabbed the boy’s leg, which caused a couple of puncture wounds. It was only a few seconds before officers had control of the dog, got him to release the bite.”

That precious interval – “a few seconds” – is all it takes for officers in different circumstances to shoot any dog that barks at them, or appears ready to do so. Rather than being destroyed immediately, the police dog was taken out of service for evaluation. McQueen promises that it won’t do “police work” until test results are available. Neither retirement nor destruction of the officially licensed attack dog appears to be an option.

Because this “unfortunate accident” – as McQueen described the event – involved an “officer,” the doctrine of “qualified immunity” will protect the handler from civil liability for the injury inflicted on the child. 

 

Officer Fredericksen and "Aik."

Lynwood, Illinois Police Chief Michael Mears followed that formula perfectly last April when Aik, one of his K-9 “officers,” attacked a terrified child.

“This is just one of those unfortunate accidents,” Mears said, no doubt with a “sucks to be you” shrug. 

Julia Klooserterman was walking with her four children in nearby Lowell, Indiana when a dog in a neighbor’s yard charged at them. Rather than pulling out a handgun and killing the animal, the mother interposed herself, shielding her children with her body. She couldn’t protect all of her children. Aik charged the group from the rear, knocking one of the children to the ground and biting him on the neck. 

The dogs are owned by Lynwood Police Officer Brandin Fredericksen, who was not on duty at the time of the attack. Lowell Police Chief Erik Matson told the Chicago Sun-Times that the matter was closed once Fredericksen provided rabies documentation to the police.

Lynwood Chief Mears blithely assured the Sun-Times that Aik is a “social dog” that has “participated in demonstrations with the public without incident” since mauling the child. If Aik had been a privately owned pet that so much as growled at a member of Mears’ department, it would be dead. 

Any encounter with a strange dog can leave a person unsettled. This is true of postal carriers, private delivery and service personnel, and police officers. But only cops consider themselves entitledto shoot dogs on sight. Apparently, there is something about being given a badge and a government-issued costume that brings out the latent cowardice in people thus attired. 

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Rough Men Stand Ready to Kill You in Your Bed

“We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm,” wrote the late Richard Grenier decades ago. The murderous reality behind that oft-recited authoritarian aphorism – generally mis-attributed to Orwell – was made tangible on the morning of June 27 when at least a dozen L.A. County Sheriff’s Deputies traveled to Littlerock, California, a village of roughly 1,200 people about an hour northeast of Los Angeles, to attack an 80-year-old man named Eugene Mallory in his bed.

Mallory woke up to find armed men in his home. The elderly man’s glasses were on the nightstand beside him. His handgun was also within easy reach. After the panicking man reached for his gun, the intruders shot him six times.

The deputies who had invaded Mallory’s home weren’t responding to an emergency, nor were they pre-empting a criminal plot. They were serving a narcotics warrant issued in response to a claim that someone who had passed by the property smelled ingredients used to manufacture methamphetamine.

After shooting the helpless old man in his bed and leaving him to die, the intruders assaulted and bound his terrified wife, Tonya Pate, then ransacked the property. Although they found no evidence that Mallory was an aspiring Heisenberg, they did locate an insignificant amount of marijuana – something not listed in the search warrant, but seized upon as validation of the murderous home invasion. 

The Fourth Amendment, which was rendered irrelevant long ago, requires that in order for a warrant to be valid it must specify the items being sought. Additionally, a vague report of a suspicious smell doesn’t meet the Fourth Amendment’s standards for probable cause. This was acknowledged by the California Supreme Court in a decision announced a few hours after LA County deputies slaughtered Mallory. The Court ruled that police were not permitted to search a closed shipping package because it reeks of marijuana. 

In that case, which arose from a 2010 arrest of a man accused of trying to ship pot to Illinois via FedEx, the police insisted that what they call the “plain smell test,” coupled with “exigent circumstances,” justified a warrantless search and seizure of the package. That argument didn’t pass the Court’s smell test.

If police aren’t permitted to seize a package that exudes the aroma of marijuana, it can’t be considered permissible to mount a daybreak no-knock raid of a residence on the basis of an unsupported claim that something in the surrounding air made an informant’s nostrils twitch. 

Since the warrant was invalid, and the search was illegitimate, Mallory was within his legal rights to use lethal force to defend himself. However, department spokesman Steve Whitmore insists that “The lesson here is … don’t pull a gun on a deputy.”

A more suitable lesson is this: We live in a country where criminals in uniform feel entitled to gun down elderly men in their beds.

Shooting terrified people in their beds is a familiar practice to the Berserkers employed by the LA County Sheriff’s Office. 

(LACSO via LA Weekly)

In October 2010, two members of a specialized unit of the sheriff’s office called the Community-Oriented Policing Services High-Impact Team – known by the exquisitely appropriate acronym COPS HIT  – barged into a backyard shack occupied by Angel Mendez and his pregnant girlfriend, Jennifer (whom he later married). 

The deputies – Christopher Conley and Jennifer Pederson – didn’t have a warrant, nor were they in hot pursuit of a suspect. 

Both of the intruders had their guns drawn. Neither said a word. After Mendez sat up in his bed, the deputies opened fire, shredding his body with more than a dozen rounds. His  girlfriend, who was five months pregnant, was also hit, suffering a shattered collarbone. 
 

Angel Mendez lost his leg the following day.

Bleeding profusely from multiple wounds, Mendez was dragged from his bed to be interrogated. Paramedics arrived, ripped away Mendez’s clothing, and worked frantically to save his life. Nude, traumatized, and lying in a puddle of his own blood, Mendez was harangued by Sgt. Greg Minster, who tried to manipulate the victim into saying that he was at fault.

“One more time,” Minster snarled at Mendez in a video-recorded interrogation, “why did you point the gun at my deputies?”

“I didn’t, sir,” gasped Mendez as he struggled to survive the assault.

The “gun” in question was a cheap toy BB rifle that had been on Mendez’s bed when the officers barged into the shack where he and his expectant girlfriend were living. He moved to set the rifle on the floor so he could get out of bed.

Deputy Conley – reciting from the killer cop’s catechism of self-justification – insisted that he feared for his life and reacted instinctively. 

However, in an interview with Sgt. Patrick Kim, Conley admitted that the encounter with Mendez lasted “maybe 15 seconds” before he attempted to kill him. This means that the shooting was not the product of a split-second decision, and that Conley had ample time to recognize that Mendez didn’t pose a threat.

The harassment of Mendez continued after the victim was taken to the hospital. Sgt. Robert Gray demanded that Mendez admit that he had pointed the BB gun at deputies Conley and Pederson.

“I did not aim it at them, sir,” Mendez insisted. “I was like, `No, please, stop, don’t shoot me!’ And they shot again and again and again after I dropped everything.”

On October 1, 2010, Mendez was charged with “assault with a deadly weapon on a peace officer” – despite the fact that the intruders had no legal cause to be in Mendez’s home, and didn’t bother to identify themselves as deputies. On the following day, Mendez lost his leg to amputation. After it became clear that the LACSO couldn’t get away with describing a BB rifle as a “deadly weapon,” it withdrew the original charge and attempted to have the victim prosecuted for “brandishing” what was called “an imitation firearm,” but Deputy DA James Garrison declined to pursue the case. 

Last August, a federal judge awarded Mendez and his wife a $4.1 million settlement to be paid by the tax victims of Los Angeles County. In announcing the award, Judge Michael Fitzgerald ruled that the shooting was the result of an unlawful search – which means that it should have been prosecuted as an act of attempted criminal homicide.

Deprived of an opportunity to send the man they had nearly murdered to prison, the Sheriff’s Office had to settle for ruling that his assailants had acted “within policy” by invading his home and mutilating him. They are still plying their criminal trade, and the department continues to insist that the marauders had an unqualified right to murder Mendez.

“This individual did pull a weapon on our deputies, forcing them to respond because they feared for their safety,” snivelled department spokesliar Steve Whitmore. Given that the search was illegal, the deputies were common home invaders. Mendez had an unqualified right to kill them in self-defense, if he had been able to. 

Because the department continues to pretend its operatives have a plenary entitlement to terrorize people, the COPS HIT unit continues to carry out home invasions. “They just storm these places and do whatever the hell they want,” complained attorney Gerald Ryckman in an interview with LA Weekly. This behavior isn’t limited to Los Angeles County, of course.

Last July, just a few weeks before Mendez and his wife were awarded compensation for their suffering at the hands of a state-sanctioned hit team, Auburn, Washington Dustin Theoharis filed a $20 million tort claim against Officer Kris Rongen of Washington Department of Corrections. Theoharis had previously been awarded a $3 million settlement by King County to indemnify the criminal actions of Deputy Aaron Thompson. 

Theoharis was asleep in his bed on February 11, 2012 when two armed strangers entered his room and started to give him orders. Understandably startled, Theoharis reached for a flashlight. This prompted the two intruders to open fire. Theoharis – while still in bed -- was shot sixteen times, but survived.

The assailants who shot Theoharis had arrested his roommate, Nicholas Harrison, an ex-convict who had failed to report for community supervision. They had barged into the bedroom to find if Harrison had a gun, which would have allowed them to charge him with a parole violation. They had no warrant or probable cause for the search. Since Harrison was already in custody at the time of the incident, there was no need for a “safety sweep” of the residence. This illegal search was conducted solely for the purpose of seeking an enhanced charge against a suspect who was already in custody. 

Immediately after the shots were fired, Detective Benjamin Wheeler – one of four other officers on the scene – raced to the downstairs bedroom, where he found Theoharis bleeding from multiple entry wounds and the two officers who had shot him in what appeared to be a “state of shock.”

When Wheeler asked what happened, Thompson claimed that the victim “told us he had four guns, and then he started reaching for one.” This was a lie. No gun was found in the bedroom. A rifle was found in a locked gun case in the room next door. Theoharis was asleep when the officers went into his darkened bedroom and began barking orders at him, and within ten seconds he had been perforated with sixteen shots.

 

Rongen receiving an "Officer of the Month" citation.

By any reasonable definition, Detective Thompson and Officer Rongen committed the crime of attempted homicide. The King County Prosecutor declined to file criminal charges against either assailant, insisting that the shooting was justified because of a “perceived risk” to officer safety. 

An internal review of the incident by the Sheriff’s Office found that neither Thompson nor Rongen had asked “anything about the occupant of the room, if there were weapons present or if the person permanently lived at the residence.” The officers were faulted for not taking the time to “determine a safe course of action with four other detectives who were present.”

Rongen (r.) conducting a stop-and-frisk.

For its part, the Department of Corrections simply ruled that Rongen’s actions had followed department policies. Rongen, invoking the Fifth Amendment, refused to cooperate with the investigation. 

Rongen is a former football standout with Washington who made it to the NFL long enough to get cut during training camp. When Rongen violated the rules of football, he and his team were penalized. He has suffered no such sanctions as a law enforcement officer who attempted to murder a man in his bed.

People who recite Grenier’s line about the “rough men [who] stand ready in the night” will sometimes pair it with Kipling’s reproach against those who are found “making mock o’ uniforms that guard you while you sleep.” The thought of being “guarded” by such pathologically violent people is sufficient to banish sleep permanently, and mockery is the mildest treatment they deserve.

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It is no exaggeration to say that I am inundated with messages from people whose lives have been blighted -- or ruined -- by criminal violence committed by police, and find that "professional" journalists aren't interested in telling their stories. I devoutly wish I could get a Wayne Foundation grant to fund my work. Pending such a development, I'm dependent on the generosity of readers, and I want you to know that I'm not the only one who appreciates your help.

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