"Qualified Immunity": What Cops and Slave Overseers Have in Common

The late Kelly Thomas, following his fatal encounter with the slave overseers of the Fullerton PD.

Michael Slager, the former North Charleston, South Carolina police officer killed an unarmed man and then attempted to frame the victim, will not be convicted of murder. Nor is he likely to be convicted of the lesser charge of manslaughter.

Slager’s jury deadlocked because a single member of the panel insisted that he could not “in good conscience” vote to convict Slager of criminal homicide. This is not because the facts of the case are in dispute. Slager was captured on video fatally shooting unarmed, 50-year-old Walter Scott in the back as he fled a traffic stop, and then placing a Taser next to his fatally traumatized body.

The critical issue for that juror, apparently, was whether Slager’s state of mind as he committed these acts transmuted them from criminal homicide and obstruction of justice into an exercise of state-conferred authority protected by “qualified immunity.” Specifically: Was the officer acting out of “total fear,” as he claimed, following what he said was a struggle in which Scott attempted to grab his Taser? Or was Slager acting out of “passion” – in this case, anger and outrage over Scott’s refusal to submit?

If Slager weren’t a member of the state’s punitive priesthood, these questions wouldn’t matter.  As a police officer, however, Slager enjoys precisely the same privileged status in the exercise of discretionary violence that was once afforded to slave owners and overseers in the antebellum South.

Under what we are required to pretend is the “law,” Slager – like any other police officer – is authorized to detain any citizen who provokes his suspicion, and to obtain that citizen’s submission using whatever increment of force he deems reasonable. From the point of such a seizure, the officer exercises a proprietary claim over the detainee until or unless he decides to release him – and any assertion of self-ownership on the part of the detainee can potentially be punished through summary execution.

In “The Constitution of Police Violence,” a soon-to-be published article for the UCLA Law Review, Dr. Alice Ristroph of the Seton Hall Law School describes case law regarding law enforcement encounters with citizens as “a blueprint for police violence. It invites officers to interrupt civilians, sometimes with minimal suspicion and sometimes with no suspicion at all. Once interrupted, the citizen must comply with the officer’s requests [which are more accurately described as `demands’] or risk expanding the officer’s authority. Actual or perceived non-compliance rapidly ratchets up the officer’s authorization to use force, and any non-compliance perceived to be dangerous empowers the officer to kill.” (Emphasis added.)

Every police agency in the country teaches its officers a “use of force continuum” that “sets the expectation of escalation,” continues Dr. Ristroph; “after the first resistance, force will escalate until the suspect is subdued or dead.” The resistance in question can be a purely verbal assertion of self-ownership – as in Eric Garner’s exasperated protest about the unwarranted harassment he had experienced, coupled with the declaration, “It stops today!”

As Ristroph observes, defiance of this variety constitutes “the uncodified but very real offense called `contempt of cop.’” A Mundane who refuses to acknowledge the proprietary claim made by the officer who detains him can expect summary punishment of the same kind once visited on slaves by their overseers, and for exactly the same reason. It was exceedingly uncommon for abusive slave “owners” or overseers to be punished. In similar fashion, only in exceptionally egregious cases will a police officer face prosecution for brutalizing a citizen.

One useful illustration of the scope of permissible police violence is seen in the fact that none of the eight Fullerton, California police officers who beat to death an unarmed, helpless, mentally ill man named Kelly Thomas five years ago was ever convicted of a criminal offense. That case also usefully underscores the fact that the slave overseer mindset of police is not a function of racial bias.

Only two of the assailants – Officers Manuel Ramos and Jay Cincinelli – were prosecuted, and they were acquitted. Dr. Steven Karch, an “expert witness” routinely deployed to defend criminal behavior by police, gave a credulous jury an excuse to pretend that the 160-pound Thomas somehow posed a threat to eight police officers, and that rather than being killed by the officers who beat, kicked, tasered, and suffocated him, Kelly just happened to die from the long-deferred consequences of methamphetamine use several years earlier.

As an overture to the beating, Officer Ramos theatrically snapped on latex gloves while taunting the victim: “See these fists? There’re getting ready to f*ck you up.” Cincinelli, who repeatedly clubbed the victim’s face with the butt of his Taser, later gloated that he had “just smashed his face to hell.”

Photographs taken of Kelly while he was in an irreversible coma attest to the thoroughness with which Cincinelli and his comrades carried out their mandate to obtain submission through criminal violence. I suspect that if photography had been available in 1839, similar pictures would exist of a slave woman named Mira who was beaten and scourged to death by a North Carolina resident named Hoover who presumed to claim her as his property.

So grotesque was the disfigurement of Mira’s mortal remains that Hoover was indicted for murder and then convicted of that offense by a jury culled from a population that was inured to the routine barbarism typical of chattel slavery.

In the ruling State v. John Mann ten years earlier, North Carolina Supreme Court Justice Thomas Ruffin wrote that “The power of the master must be absolute, to render the submission of the slave perfect.”

A slave is “one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make anything his own, and to toil that another may reap the fruits,” Ruffin explained, and the slave would accept this only if the master exercised “uncontrolled authority over his body” – without that authority being subject to judicial review. In that 1829 case, a man who had leased a slave named Lydia had shot and wounded her when she tried to escape. The only salient issue for Ruffin was whether someone who had leased the labor of a human claimed as the property of another enjoyed the same legal immunities as the “owner” himself.

Ruffin dealt with similar questions a decade later in North Carolina v. Hoover. The appellant insisted that he had been required to exercise the “rights” explained by Ruffin’s earlier decision with great severity, because Mira “had attempted to burn his barn, and was disobedient and impudent to her mistress.” Hoover also claimed that Mira had attempted to poison his family. The “evidence” for those accusations was a confession extracted from the helpless woman through torture. At the time she was killed, Mira had just delivered a child and was too weak to work.

The trial judge had explained to the jury that they could acquit Hoover, or find him guilty of the lesser charge of manslaughter, if they determined that the victim’s conduct provided “legal provocation” to the killer – which would have included disobeying “the orders of her master.” They could likewise find extenuation on Hoover’s behalf if the killing followed such a provocation so quickly that “his passion had not a reasonable time to cool and subside”; in those circumstances the offense would be manslaughter, rather than murder.

Slave “owners” and overseers, like contemporary cops, were expected to follow a “use of force continuum” in the exercise of power no human being can rightfully wield against another – and on those vanishingly rare occasions that resulted in prosecution, the courts were expected to prioritize leniency.

Ruffin’s ruling in North Carolina v Hoover was unalloyed barbarism lacquered with genteel language. He offered an extravagant apology to the killer as he explained that he could not find sufficient grounds for overturning the conviction – and not for want of effort.

“A master may lawfully punish his slave,” Ruffin declared, “and the degree must, in general, be left to his own judgment and humanity, and cannot be judicially questioned. But the master’s authority is not altogether unlimited. He must not kill. There is, at the least, this restriction upon his power; he must stop short of taking a life.”

The slave’s is a lesser life than that of the person claiming to own him, to be sure, and wherever possible, means will be found to justify the lethal exercise of a slave master’s discretion: “If death unhappily ensue from the master’s chastisement of the slave, inflicted apparently with a good intent, for reformation or example, and with no purpose to take a life, or to put in in jeopardy, the law would doubtless tenderly regard every circumstances, which, judging from the conduct generally of masters toward slaves, might reasonably be supposed to have hurried the party into excess.”

Buried beneath that avalanche of adverbs is a principle now known as “qualified immunity,” which is now invoked to justify the criminal violence of police officers like Michael Slager.

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Dum spiro, pugno!

The Verdict: Murder as an Official Entitlement

Support Your Local Police, Orange County Chapter: Anaheim cops respond to an anti-police protest.

 “Among other lessons we’ve learned in this trial,” pontificated Judge William Froeberg just before a jury acquitted Kelly Thomas’s killers, “is that violence begets violence.” 

This statement was either a conscious lie, or a symptom of incurable ideological blindness. The murderous violence directed at Kelly Thomas by a half-dozen police officers was unilateral, unprovoked, and utterly unjustified. It wasn’t begotten by anything Thomas had done, or failed to do. It was purely a manifestation of the criminal impulses that are nurtured within those who belong to the State’s punitive caste – and then directed without stint or limit against those who refuse to submit to the “authority” of those privileged bullies. 

“These peace officers did their jobs -- they did what they were trained to do,” insisted John Barnett, the police union lawyer who represented Manuel Ramos during the trial. 

Immediately after the acquittal, Officer Jay Cincincelli – who, like Ramos, was fired following the public outcry after the Kelly Thomas killing – announced that he would seek to get his job back. Given that the Fullerton PD initially defended the officers’ actions, and their training officer insisted that the attack on Thomas followed established procedures, Cincinelli has every reasonable expectation of being rehired. 

During his summation to the jury, attorney Michael D. Schwartz, who represented Cincinelli, likewise insisted that the unremitting assault on Thomas was carried out in strict fidelity to the “training” the officers had received.

“The officer has the right to pursue the suspect until the suspect is controlled – that’s how my client was trained,” Schwartz told the jury. From his perspective, this both explained and justified Cincinelli’s use of his Taser as a club, with which – in the assailant’s own words – he “smashed [the victim’s] face to hell.”

Schwartz exhorted the jury to “analyze this case without the emotion.” By this he meant suppressing the human tendency to empathize with the victim; he decidedly did not want the jury to set aside the irrational belief that aggressive violence is morally appropriate when committed in the name of the State.

Once matters of identity are subtracted from the incident, we’re left with the spectacle of a solitary, unarmed, terrified individual being beaten and suffocated beneath more than a half-ton of armed, aggressive strangers. There is no rational basis for describing this as anything other than criminal homicide. 

The only way the jury could conclude otherwise would be to accept the premise that police officers, as agents of government-imposed “order,” have an unqualified license to kill any Mundane who resists their aggressive violence. A codicil to that license dictates that police who kill a Mundane who tries to defend himself must be regarded as victims.

“Listen to them during the fight,” Barnett urged the jury, maintaining the pretense that an act of mass violence against a solitary victim somehow constitutes a “fight.” “You don’t think they thought they were in the fight of their lives? Do you think that they called a bunch of cops there … to come watch them and help them beat down some homeless person? Do you think that’s what happened?”

The video recording of the event makes it unambiguously clear that this is precisely what happened. The thrust of the defense argument was that police are given social permission to act this way, and therefore can’t be held legally accountable when they behave according to their training.

“Their actions were consistent with their training, and nobody disputes that,” reiterated Barnett, confident that this was an endorsement of their actions, rather than an indictment of the institution that employed them.

Many commentators have compared the acquittal of Ramos and Cincinelli to the outcome of the O.J. Simpson murder trial. One significant difference here is that the killing of Kelly Thomas was captured on video, and the perpetrators can’t pretend that the identity of the “real killers” is a mystery. A decidedly imperfect but somewhat better comparison could be made to the 1924 Leopold-Loeb murder case.  

Richard Loeb was the son of a retired Sears Roebuck vice president; at the time of the murder, he was preparing to enter Harvard Law School. Nathan Leopold was the son of a millionaire box manufacturer. 

Leopold and Loeb, who fancied themselves to be philosophers, disdained the moral law as something that applied to lesser beings than themselves. Leopold wanted to commit the “perfect crime” by kidnapping and murdering a wealthy child. 

Their selected victim was 14-year-old Bobby Franks, whom they lured into a trap and then killed with a chisel. After burning the victim’s lifeless body with hydrochloric acid and disposing of it in a drainage ditch, the killers sent a ransom note to the young man’s parents.  The boy’s mortal remains were found through the intervention of what an investigator called “the hand of God.”

The killers were identified and eventually confessed. During the sentencing phase of the trial, Clarence Darrow successfully mounted a defense that was close kindred to the one offered on behalf of Ramos and Cincinelli: The killers shouldn’t be held accountable for doing what they had been taught to do.

Darrow described how the killers – the children of privilege -- had been relentlessly marinated in a nihilistic ideology that led them to believe that there were simply entitled to kill on a whim. This blunted their moral sense and left them unable to repress their appetite for violence. Besides, who were the jurors to judge these hapless artifacts of indifferent Nature?

“Nature is strong and she is pitiless,” Darrow declared during his summation to the jury. “She works in mysterious ways, and we are her victims. We have not much to do with it ourselves. Nature takes this job in hand, and we only play our parts. What had this boy [meaning Richard Leopold] to do with it? He was not his own father, he was not his own mother…. All of this was handed to him. He did not surround himself with governesses and wealth, He did not make himself. And yet he was compelled to pay…. Tell me that you can visit the wrath of fate and chance and life and eternity upon a nineteen-year-old boy!”

The defense in the Kelly Thomas trial affected a similar pose of cosmic mystification in pretending that the victim’s death was caused by something other than a prolonged assault by the defendants and a half-dozen of their comrades. Thomas’s death was the product of “fate and chance,” not a prolonged beating by police that left him brain-damaged in an irreversible coma.

John Barnett insisted that Ramos and Cincinelli didn’t act out of “malice” when they killed Thomas. Darrow struck a similar note in his argument on behalf of Leopold and Loeb, and maintained that the murderers could find extenuation in the surpassing pointlessness of their crime:

“Why did they kill little Bobby Franks? Not for money, not for spite, not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go into the make-up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood.” 

Leopold and Loeb murdered Bobby Franks for the same reason Manuel Ramos and Jay Cincinelli targeted Kelly Thomas: The helpless victim offered the killers an opportunity to indulge the libido dominandi – the lust to dominate others. 

Premeditation may not have been involved in the Kelly Thomas killing, but the perpetrators have been indoctrinated in the belief that they can employ aggressive violence at their discretion, and escalate it as they see fit.

Like Leopold and Loeb, Ramos and Cincincelli earnestly believed that they were entitled to kill. Unlike their murderous forebears, Kelly Thomas’s killers will not be sent to prison – a development that will fortify and encourage their fellow State-licensed sociopaths in police departments throughout the Soyuz.

At roughly the same time a jury in Orange County, California was ratifying the murder of Kelly Thomas as an exercise of an institutional entitlement to kill, a former SWAT commander a continent away shot and killed another man in a movie theater. 

Curtis Reeves, who was regarded as the “Best of the best” during his decades as a police officer, took inconsolable offense when Chad Oulson used his cellphone to send text messages to his daughter. After complaining to the theater management, Reeves returned to his seat and confronted Oulson, who (according to the killer) threw popcorn at him. Infuriated by Oulson’s refusal to obey his orders, and acting in “fear for his life,” Reeves did as his decades of training dictated: He drew a firearm and shot the man dead.

Reeves was arrested and – like Manuel Ramos – faces a charge of second-degree murder. There is no measurable moral difference between the lethal actions of those individuals. However, for those who adhere to the cult of the State, Reeves committed a grave sacrilege by carrying out the familiar liturgy of lethal aggression without being clad in the vestments of the government’s punitive priesthood.

Dum spiro, pugno!

The Right to Resist -- and the Duty to Interpose

“Get on the floor! Get on the floor!” ordered the assailant, dragging the college-age victim into a campus building and shoving him to the ground in front of an astonished student. As the vessel of his wrath curled up in a fetal position, the bully continued his harangue.

“Do you want me to hurt you again? Do you want me to sock you in the mouth? Where’s my paper? Huh? Where’s my paper?” 

Unsatisfied with the answers he received, the bully reached down and shoved the prone target, then threw a lazy punch that failed to connect. After a few seconds, the victim managed to scramble away, and the assailant – whose rage suddenly and inexplicably evaporated –took a seat next to the befuddled witness.

“Sir – how come you didn’t help out?” the “bully” asked the student, who had silently ignored the fracas, which was staged as part of an informal sociological experiment.

“I think the big issue for our generation is bullying,” explains the lead actor in this melodrama, YouTube personality and activist Yousef Erakat. “Why does bullying continue, and why doesn’t anybody put a stop to it?” Erakat and a friend, Ali Amjad, devised what they called The Bullying Experiment, in which they staged incidents at several locations on the UCLA campus and video-recorded the reactions of witnesses. 

In one skit, Erakat grabbed Amjad and rebuked him for running away, pointing out that “I know where you live.” In another, he seized his co-star by the throat and then threatened a nearby student, who briefly turned his head to watch and then left without a word.  One student – a near-ringer for Community’s Troy Barnes – can be seen using his cellphone to record the confrontation, standing his ground when Erakat threatens him. 

The choreographed pseudo-violence reaches a point at which Erakat jumped on top of Amjad and appeared to pummel him, and this provoked some students to intervene physically. The Good Samaritan in one incident was a burly male, who grabbed Erakat from behind and dragged him away. On another occasion, a small and physically over-matched – yet commendably defiant -- young woman named Caitlin Estudillo actually shielded the “victim” with her body. 

The point of this charade, Erakat insists, is summarized in this question: “What if no one stopped to help you while you were getting bullied?” This updated and expanded take on the Parable of the Good Samaritan posits an affirmative moral duty to intervene to protect an innocent person who is being bullied by an aggressor. 

Fiction: The "Bully Experiment."

Assuming that principle is valid, shouldn’t it apply to aggressive violence by people acting on behalf of the State – police officers, in particular? Don’t bystanders have a moral responsibility to intervene, in any way possible, to protect someone being beaten or otherwise abused by a cop?

The behaviors displayed by Erakat in this role-playing exercise, and some of the specific language he used (“Get on the floor! Get on the floor!”), made his character practically indistinguishable from any of thousands of police officers whose violent exploits have been captured on video and broadcast to the world. 

There are, of course, some significant differences: The bully played by Erakat didn’t continue to escalate his attack until he had achieved “compliance,” nor did he summon the help of several colleagues – a few who would join in the beating, and a few others who would form a protective ring around the assailants in order to prevent onlookers from intervening on behalf of the victim.

This is to say that although the scripted violence of Erakat’s bully was sufficient to shock the conscience, that of the typical police officer in a similar encounter is immeasurably worse – and bystanders are not only encouraged not to intervene, but prohibited by “law” from doing so.

Erakat’s video, which made its debut several weeks ago, offers a timely counter-point to the murder and manslaughter trial of Fullerton Police Officers Manuel Ramos and Ken Cincinelli. Ramos and Cincincelli are two of the eight cops who beat homeless man Kelly Thomas to death on the street near a bus station on July 11, 2011.

Thomas had done nothing to justify an arrest. (Ramos, eager to confect a pretext, pretended that Kelly had removed discarded mail from the trash, which isn't illegal.) The mentally troubled, 160-lb. man posed no threat to anybody. Thomas died – that is, he lapsed into an irreversible coma – while crying out for his father to help him.

 

The reality: Ramos about to "f**k up" Thomas.

Nobody tried to help Thomas – because Americans have been indoctrinated to believe that it is morally wrong and legally impermissible to do so. This is obviously not the case under the moral law. As Orange County DA Tony Rackauckas acknowledged during closing arguments in the trial of Ramos and Cincinelli, this isn’t the case under the written law, as well.

“There is no legal authority for a police officer to use force to punish someone,” Rackauckas informed the jury. “There’s no authority to use force for `street justice.’ A police officer cannot get mad at somebody and start punching him around, or use any kind of force on him at all.”

When a police officer uses “unreasonable or excessive force, he is not lawfully performing his duties,” the prosecutor continued. Section 2670 in California’s Criminal Jury Instructions explains that defendants accused of resisting arrest cannot be convicted if the arrest was unlawful, and that “a person may lawfully use reasonable force to defend himself or herself.” 

The threshold question is whether the victim “reasonably believes he is in imminent danger of unreasonable or excessive force by a police officer.” Of course, the mere presence of a police officer is enough to satisfy that condition.

Ramos, who taunted and mocked Thomas for several minutes before beginning his assault, slapped on a pair of rubber gloves and told the victim that he was preparing to “f**k you up.”

It wasn’t necessary at that point for Thomas to wait until Ramos assaulted him, according to Rackauckas; the officer’s threat “created in Kelly Thomas a right to self-defense.”

 “A lot of people don’t understand this idea – but the police know,” Rackauckas continued. “They know if they are not lawfully performing their duty … [and] are using excessive force, that a person has the right to self-defense – that a person has the right to resist. You have a right to resist an unlawful arrest.” (Emphasis added.) 

This point had been made earlier from the witness stand by retired FBI Special Agent John Wilson. A former tactical police training expert, Wilson spent 60 hours studying the surveillance video of the Kelly Thomas killing. He testified that the actions of Officer Ramos were improper and unlawful. Under cross-examination by the defense, Wilson emphasized that once the police attack began, Thomas had the right to use lethal force, if necessary, to protect himself. The OC Weekly reports that the off-duty cops who crowded the courtroom reacted to Wilson’s testimony “by shaking their heads and hissing.” 

Irrespective of statutory and case law, Police are trained to deal with resistance of any kind by escalating force until the targeted individual submits, or dies. They have been encouraged in such behavior by several decades of judicial rulings that often recognize the innate right to self-defense against police violence while perversely insisting that citizens have a duty to submit to whatever indignity or trauma a cop sees fit to inflict on him. 

 

A cop's-eye view: They command, we submit. Like hell, we do.

That was essentially the case made by police union attorney John Barnett in his closing arguments on behalf of Ramos. Appealing to what he hopes is the latent authoritarianism of the Orange County jury, Barnett insisted that by provoking a confrontation with Thomas and then beating him into a coma, Ramos “did everything he could to keep the community safe…. Officer Ramos had a right to do exactly what he was doing.” 

From the perspective of Barnett and the police union that fills his doggie dish, when a policeman decides to kill someone, that person has a duty to die. As Rackauckas pointed out to the jury, this morally abhorrent view is a legal fiction – and police are aware of that fact.

All bullying is based largely on bluff. Yousef Erakat, echoing the themes of the government-sponsored “anti-bullying” campaign, insists that witnesses have a moral obligation to call the bully’s bluff and, if necessary, interpose on behalf of a victim. Kelly Thomas was battered into a lifeless pulp in view of dozens of people who have been trained to think that this principle doesn’t apply to privileged bullies in government-issued attire. 

Dum spiro, pugno!