Cobb County “Fuck The Police” Arrest Story About Police Behavior, Not Civilian Behavior

What’s at issue here is the behavior of police officers. Police are public employees to whom we grant an extraordinary amount of power. But in return for being granted these powers, they should both agree to a high level of professionalism, and accept it when we subject their behavior to a high level of scrutiny. No amount of laws or law enforcement will ever be able to ensure polite, courteous behavior from the general population. You will always have rude people behaving poorly. It follows then that police will inevitably encounter such people on the job. And when they do, it is reasonable for us to expect police to handle this interaction is a grown-up, professional manner. If the civilian is not actually breaking a law during the interaction, as was determined by a judge in this case, then the interaction should not result in an arrest. If it does result in an arrest, then we have the situation of a police officer arresting someone who has not committed a crime.

Now yes, the police argued later that her behavior was in some way a destructive one that had to be stopped by force, but again, a judge heard the facts of the case and ruled that this was not the case. Fine, so now we’ve established that saying something rude to a cop on the street will not necessarily be a criminal act, at least in that county. And if that were all we needed to ensure that the police would take note of this and change their policies accordingly, then there would be no need for a large settlement.

But we recognize, and courts acknowledge as well, that merely the finding of “not guilty” with regards to the offensive act is often NOT sufficient to ensure that police discontinue with similar arrests. If there is no downside to the police for arresting people for behavior that is not criminal, but that they simply don’t like, then there is nothing to keep them from doing it. In general, the more power you grant to an official, the more intense should be the scrutiny applied to their behavior. Unfortunately, police arrest policy in the US is a situation where this connection between power and responsibility appears to be pretty out of whack. For every one lady on a bike who wins a large, well-publicized award, there are twenty others who complain and get stonewalled. And there are even more whose complaints are never heard at all, or who simply don’t complain and take it.

Therefore the purpose of the large settlement is to serve as a strong negative inducement to the police to discontinue making arrests for behavior which is not determined to be criminal. And again, it’s not sufficient to simply say well, the charges were dropped, so what’s her problem? Her problem is, she was arrested and spent 24 hours in a jail cell. This is not a slight inconvenience, but a significant harm. And while it’s true that that harm certainly wasn’t $100,000 worth of harm, that’s not the point of the award. The point isn’t to make her whole, but to give adequate incentive to the police to change their policy. If the court was only interested in rectifying the measured harm done to the woman in this one instance, perhaps 3x a day’s wages, plus 20% for her troubles might do that. But it is unreasonable to expect a judgement of a few hundred dollars to in any way influence police policy. Ergo, the large award.

Outsized awards are not the only mechanism available to courts to curb inappropriate behavior by the police. The court can directly order the police department to change its policies. A good recent example of this is the case of Willie E. King v City of Indianapolis et al. This was a typical case of police arresting someone simply for videotaping them on a public street. The settlement included a large cash award to King and a requirement that police officials issue department-wide memoranda to their officers clarifying that civilians have a right to videotape them in public if they pose no threat or impediment to the police. The King case made it to a federal circuit court, which issued the finding and the Indy PD accepted the settlement.

Videotaping cases are often pretty clear-cut in that it comes down to the simple question of whether or not police should have an expectation of privacy while patrolling out in the open on a public street. Since nobody seems to buy this argument, such cases are fairly straightforward for courts—-federal courts at least—-to decide. In the case of Amy Barnes, the question of criminal law as it applies to her actions is probably much trickier for courts to make categorical pronouncements upon. This is because the 1st Amendment right to free speech is not absolute. You are not allowed to walk up and down the street with a bullhorn shouting obscenities just because you feel like it. Prevailing standards of decency apply, and in fact that’s what the police argue Ms Barnes was violating.

Now clearly, the judge didn't buy the police’s argument, and interpreted this as a case of the officer taking it personally. By extension what the judge was saying was, in the absence of any compelling arguments that Barnes was causing harm to the public, police shouldn’t arrest people simply because they feel personally insulted. Which i think is a fairly reasonable position to take, and the judge imposed this position with the large award to Barnes. However, you can see how it would be much more difficult to deal with this situation by ordering a change in policy. The SCOTUS itself has famously wrestled with similar situations and admitted that it’s very difficult to sit down and write down the rules for what should and shouldn’t be protected speech such circumstances. And for the judge to order the police to change their policies would imply the belief that somehow the new policy writers would find greater wisdom than has escaped the nation’s greatest legal scholars throughout history.

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