Standing Still

Okay... I know that I'm supposed to be on hiatus, taking a break from the complaining about the world that has tended to make up so much of Nobody In Particular for the past 15 years. But the following question came up as relates to the conviction of former Officer Kim Potter in the death of Duante Wright, and, for better or for worse, here is where I work out my answers to these sorts of questions.

Potter -- I mean, she has to go to prison, but... her story seems credible & if we believe it, should she still be going to prison? Is this progress (in the war against cops killing black people)?

My answer to it is likely overly long, but here it is.

Sometimes, people use the tools of legal process and punishment to push back against the temptation that life offers to deliberately act on the perverse incentives that pervade existence. It provides a counter to the impulse to take by force or deception what would require more effort to obtain within the rules (if it can be obtained licitly at all).

But sometimes, the role of the Rule of Law is simply to be cudgel against those who embarrass the society with their actions, intentional or not, or contribute to a sense of unease.

The "war" should not be seen as one against "cops killing black people," because that is not the point. Progress would be a reduced number of police shootings due to an understanding that people's lives (whether they are Black or not) are valuable enough that they shouldn't be casually ended simply out of an assumption of criminality or so that members of the majority don't have to question the constant fear they profess to feel.

(Note that in the trials of George Zimmerman and Travis McMichael, Gregory McMichael and William Bryan, their defenses all more or less came down to "the fact that we confronted a Black person who didn't know us from a hole in the ground with lethal force shouldn't have given them a reason to see us as threatening to them, so their response was a reason for us to fear for our lives.")

Officer Potter does not have to go to prison. Officers have been breezily forgiven of much greater lapses than hers. (A lot of shootings can be traced to officers not following what they were supposed to have been trained to do. Officer Potter had the misfortune of her lapse being close enough to the death that the legal system decided it was deemed relevant in court.) She's being offered up as a sacrifice in the name of bad-faith appeasement: "We gave you Chauvin and Potter (to name two)... what more do you want?" Their convictions will be pointed to a "progress" when it's really little more than scapegoating. Police officers are not the problem; White America regarding the Black population of the country as agents of violence and anarchy is.

Shootings that later turn out to be unjustified are a problem, but they aren't the problem. In the case of Daniel Shaver, he was held at gunpoint by a number of police officers for a quarter of an hour or longer. In all of that time, they were apparently unable to determine whether he posed some sort of threat to them, and they continuously gave him orders, and even as he visibly grew increasingly stressed, an officer said to him, and I quote: "Alright, if you make another mistake, there is a very severe possibility you are both going to get shot, do you understand?" There is something broken with a law-enforcement culture that sees lethal force as a rational reaction to a person under duress making what the officers on the scene acknowledged as errors, rather than attacks.

And sure, part of can be laid at the feet of gun culture in the United States. Officers are expected to behave as if any given random citizen they have reason to stop is armed and dangerous.

But officers are often allowed, or even expected, to treat pushback on the part of a person stopped as active disrespect of their authority, and, perhaps more importantly, a threat to their safety. And citizens are at a disadvantage; the Supreme Court of the United States, in Whren v. United States, allows officers to make stops on a pretext; one can be pulled over for a minor traffic infraction so that an officer can attempt to find a greater breach of the law. And in Heien v. North Carolina, the Supreme Court ruled that an stop is legal even when the officer is mistaken about whatever law they cite in creating reasonable suspicion. So if an officer pulls me over based on something that isn't even a crime, to give themselves a reason to attempt to incriminate me for something else they understand to have happened, I'm expected to lump it. And if things escalate and I wind up being shot, the officer can point to multiple precedents in establishing that they've done nothing wrong. A police officer can have a shitty day; citizens need to always be on their best behavior.

That imbalance of power is accepted, and so are its consequences, because of an implied social contract that states that the law is only weaponized against those who have done something egregiously wrong. As Alan Dershowitz puts it: "Criminal law is supposed to apply to bad people consciously making bad decisions, that they know or should know are in violation of the law." There is an assumption that those shot by police deserved what they received; this is mostly character assassination in the service of the belief that if one is "a good person," they won't find themselves on the wrong end of an officer's bullet for what turns out to be a bad reason.

And that takes us back to former Officers Potter and Chauvin. The video showed the violations of the social contract. Society looked at the video and decided that Daunte Wright and George Floyd, were,  if not entirely blameless, innocent enough that the power imbalance shouldn't have been used against them.

But the setup that the United States has now more or less guarantees more killings, and, as I noted before, not just by police officers. One of the implicit assumptions of allowing the use of lethal force is that some number of times the wrong people will be killed. That is not, strictly speaking, unjust. It's the nature of the beast. Where the putative injustice comes into play is where the determination of whether someone is the wrong person comes from some feeling about them, rather than a clear-eyed application of the rules. And in this particular instance, Kim Potter was on the wrong side of feeling.