25 April, 2008


About an hour ago a judge in Queens County, City of New York, issued findings of not guilty of all charges against the three NYPD officers indicted in the shooting of Sean Bell in November 2006, during which the officers emptied nearly 50 rounds into the unarmed man and two of his unarmed friends. Bell died, the two friends survived and testified at the bench trial. Neither Bell nor his friends were suspected of any crime other than, incorrectly as it turns out, to be in possession of a weapon. Sean Bell was not the target of any investigation, nor was he of any prior interest to the police. He merely was in the right place at the right time for the incompetence that periodically manifests among New York’s “Finest” to end up played out on his person.

The particulars of the case are available elsewhere. Judge Arthur Cooperman’s verdict acquits Detectives Oliver and Isnora of manslaughter, assault and reckless endangerment. Detective Cooper was acquitted of reckless endangerment. The judge tellingly wrote that “incompetence is not the same thing as criminality”. The take-away here is manifold, but most saliently I understand the verdict to mean that NYPD officers are no more competent to deal with life-and-death situations than any citizen - life-and-death situations which often they, by dint of carrying death-dealing weapons, engender. As a point of law, at least in New York State, police officers are held to no higher standard than any other citizen in matters of lethal force.

Here’s an NYPD-approved competency test. Take your preferred index finger and rest it on the edge of a table. Flex your finger, say, 16 times and rest, taking a moment to use either hand to reach into any pocket quickly and remove it. Now put your finger on the table edge again and flex another 15 times. Take note of how long that took. That’s about how long it took Detective Oliver to determine he was firing on an unarmed man, despite his sufficiency of competence in reloading his semi-automatic weapon in the middle of the fray and finally loosening 31 of the 46 fatal shots, despite his sufficiency of instinct to preserve his own life and step aside from the car piloted by mortally injured Bell which Oliver testified went from a parked position to somehow bearing down on him and his colleagues at speed in the same span of time, such that, according to their testimony, the detectives were in fear for their lives.

Detective Oliver and his codefendants are able to offer as an affirmative defense to the charges that they were not heard when they identified themselves, that they were in fear for their lives, that they misjudged the presence of a weapon (although they testified that they could not see very well into the car). Their defense, in other words, amounts to a proclamation of gross lethal incompetence, endorsed by police department procedure (which permits the use of lethal force in indeterminate situations). Judge Cooperman affirmed this as a legitimate defense and acquitted, doing damage in my estimation to both the ideas of justice and the social contract.

Let’s not overlook in all of this that the prosecution, agents of the state just like police officers, presented their case ineptly, perhaps even incompetently. In no part of this fracas has any officer or agent of the state delegated with the responsibility and paid by the citizenry to do so protected from, or taken responsibility for, the danger they themselves present to lives of the citizenry.

And justice? While it’s clear who effected Sean Bell’s slaughter and the suffering of his compatriots, in Bush’s America persons sworn to uphold the law consider themselves neither responsible to it, nor subject to its adjudication. Makes sense, doesn’t it, in a trickle-down kind of way…

At this point you’ve doubtless wondered what all my high dudgeon has to do with BDSM, rope, etc. As horrified as I am by the facts and the entailments of this verdict, I’m reflecting on the matter of competence as it pertains to non-state actors such as myself, and I’m recalling a case in Seattle where an appellate court ruled that a defendant is not allowed to plead the competence of a partner to consent to a “forcible” rape scenario, the evidence for force having been rope and duct tape found at the scene. The State of Washington, in other words, says that you are not competent to consent to whatever you’re forced to do, and being tied up is enough to constitute force.

I’m obviously not all that familiar with case law on these issues, and I frankly don’t know how case rulings in New York State generally go (I suspect the constitutional scholar John Wirenius will have something to say about the Bell verdict, and it will be worth reading when he blogs it). I am familiar with a friend who suffered for years in court over what was essentially his incompetence at recognizing the forged ID of a 17-year-and-9-month-old model with whom he made nude pictures; the state in this case was tacitly requiring my friend to act as its agent in the interpretation and processing of state papers, the disposition of which being solely of interest to the state itself. My friend had made a good faith effort to indemnify himself, as he always does. The charges were reduced repeatedly from felonies to misdemeanors to a single misdemeanor, on which he accepted the bench ruling of guilty in order to have it removed from his record once the verdict had been entered (purely so the prosecution could get the conviction). In this instance there was competence demanded of someone who professed none and of whom no reasonable competence could be expected.

So, consider the fact that citizens who are ipso facto incompetent to take responsibility in loco parentis for big brother can, should it suit the state, be forced to have done so after the fact. Meanwhile, competence for determining one's own consent to certain behaviors can be conveniently excluded from admission in a court of law. In either instance no actual harm or coercion need be demonstrated by the state.

On the other hand, in an instance of actual and irreversible harm, namely a completely blameless man was wrongly killed by agents of the state, incompetence is conveniently claimed as an affirmative defense, goes unassailed by the prosecution, and is affirmed by the presiding magistrate as legitimate. Police officers can irresponsibly gun down citizens, and this is not a crime because legally the police are as free as you or me to be incompetent, i.e., at the pleasure of the state.

What, apparently, we are not free to be is competent in any intelligible sense of that idea. A competent citizenry would not consent to legitimized police incompetence.

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