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Mace in the Face

Is the US a Police State?

by JOHN GRANT

Honorable people like to debate whether the United States of America is a “police state,” but when it comes to shutting down the expression of ideas on the political left, there’s little room for argument.

We are inundated in this country with propaganda boilerplate about being the greatest democracy in the world. No, we’re not a police state like our friends in Saudi Arabia or our former friends, and current enemies, in Iran. Our police agencies have figured out how to accomplish police state repression in a “softer,” more sophisticated manner.

Look at the video in the September 26 report by Lawrence O’Donnell of MSNBC on what he describes as a “violent burst of chaos” caused by armed “troublemakers” from the New York Police Department.

It was a peaceful demonstration against Wall Street greed. At least it started out that way. All evidence suggests it was, then, sent careening into chaos by the police strong-arming of young protesters who had done nothing but express their views in public.

In one incident, young women on the sidewalk observing the arrest of a young man in the street are corralled by cops using orange plastic nets. White-shirted Deputy Inspector Anthony Bologna, then, walks up, un-holsters his pepper spray gun and shoots one of the women full in the face. He re-holsters his weapon and walks away. Another video shows him doing the same thing indiscriminately to others in a clear violation of NYPD rules that say the spray is only authorized to disable someone resisting arrest. Over 100 people were arrested in the melee.

The MSNBC video also shows a young man with a camera being violently slammed into a parked Volvo for videotaping the actions of the police. As O’Donnell emphasizes, videotaping cops is a completely legal activity. In fact, the First Circuit Court of Appeals ruled last month on exactly this situation in a case involving a man who videotaped cops beating a man in Boston Commons. (For a PDF of the ruling, go to:www.ca1.uscourts.gov/pdf.opinions/10-1764P-01A.pdf )

The case is instructive. It began with a federal lawsuit brought by Simon Glik, a Russian immigrant who had become a lawyer in the US. He saw cops beating a man and took out his cell phone to videotape them. He was told to stop and he refused. Police arrested him, confiscated his phone and deleted the video. They charged him with illegal wiretapping since his recording included audio.

The district court scoffed at the wiretapping charge and concluded just because “officers were unhappy they were being recorded during an arrest … does not make a lawful exercise of First Amendment rights a crime. … [The] First Amendment right publicly to record the activities of police officers on public business is established.”

The City of Boston and the individual police officers involved appealed the ruling, and the 1st Circuit upheld the district court. The justices pointedly demolished the notion often used by police officers that the law on the matter is unclear.

As to whether videotaping cops beating people on a public street is constitutionally protected behavior, they wrote: “Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”

And this protection applies to everyone – including “bloggers” and other private citizens with cameras or cell phones. Again, contrary to what police agencies like to say when confronted with cameras in embarrassing situations, one does not have to be a credentialed mainstream media journalist with a government-obtained “press badge” to qualify for First Amendment protection.

As to citizens making their displeasure about police actions known, the 1st Circuit cites a Houston case from 1987: “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” That is, one has a clear right to make faces or express disfavor at police actions – as long as one doesn’t physically interfere with those actions.

The justices emphasized “the fundamental and virtually self-evident nature of the First Amendment’s protections in this area.” Citing another 1st Circuit ruling from 2009, they wrote: “We thus have no trouble concluding that ‘the state of the law at the time of the alleged violation gave the defendants [the police officers] fair warning that their particular conduct was unconstitutional.’ ”

The court is saying all this is so clear cops should know slamming a man against a Volvo for videotaping is a violation of law.

In the Wall Street melee, white-shirted commanders popped up a lot in videos as the worst abusers. As leaders, these officers should be informing their subordinates that this sort of “police state” activity is culpable behavior and, as frustrating as it may be, cops simply have to learn to live under the gaze of citizens’ cameras.

MSNBC’s O’Donnell was dogged in his coverage of the story. About the man with the video camera being slammed against the Volvo by a white-shirted commander, he said: “There’s a very brave man in this picture and it’s not the guy in the white shirt.”

Thanks to all the coverage, the NYPD has had to back off its initial dismissals that all the pepper spraying was “appropriate” and declare it will open an investigation, especially of Deputy Inspector Bologna. O’Donnell was rightfully skeptical such an investigation would be anything but a traditional whitewash.

What’s going on here?

The best explanation for all this is in a 1990 book called The Police Mystique: An Insider’s Look At Cops, Crime and the Criminal Justice System by Anthony Bouza, a man who served in a host of leadership roles in the NYPD, closing his career as chief of police in Minneapolis. The “mystique” he describes involves the ironic power of the cops at the bottom of the police hierarchy and the great discretion extended to them to accomplish their mission.

Here’s some of Bouza’s insights gained from 36 years managing cops:

“[Police] work is peculiar in that the greatest power and autonomy exists at the lowest rank level. … The system, in order to accommodate the need for action, is notably understanding of the errors that are bound to occur. Thus cops develop the sense that they can exercise power without too great a risk of being called too strictly into account for its use.”

 … Their temptation to cow those whose behavior they’re trying to control into compliance often proves irresistible.”

“Cops don’t take real or imagined assaults on their authority lightly. … A favorite ploy [of experienced cops] is to provoke an angry citizen into sufficiently loud outbursts to justify an arrest for disorderly conduct. The challenge is to push the target over an imaginary line that instinct will tell him or her constitutes a breach of something. The ability to maneuver the unwary into a trap is well known to cops but rarely realized by outsiders.

“[Cops have] the additional comfort of being able to rely on the substantial tolerance of a system that wants action and knows that it must be willing to tolerate errors in order to get it.”

“Police power assumes its most formidable aspect when cops deal with the underclass. This is the group they’ve been pressured, implicitly, to control. … A society, for example, that permits scores of millions to be undereducated and unemployed will not be patient with those who call upon it to attack these ills with more equitable distributions of wealth, social programs, and other ‘liberal’ schemes. … The overclass prefers to see the problems attacked through the highly visible ‘law-and-order’ methods that promise easy solutions.”

“The people’s power, normally hard to define and difficult to see, can be a fearful thing once unleashed, particularly when aimed at the police department.”

Watch the MSNBC video again and you’ll see all of this played out in the streets near Wall Street.

When Deputy Inspector Bologna walks up and, absolutely unprovoked, sprays a young woman bystander in the face with pepper spray, besides any personal unsavory and sadistic impulses he might have harbored, he is undertaking a variant of the “favorite ploy” to provoke that Chief Bouza describes.

In fact, the whole Monday melee can be seen as a case of cops poking and shoving citizens to “cow” them and “push the target over an imaginary line” — using rude provocation to turn a peaceful protest into a scene of chaos and havoc that, then, can be blamed on the “underclass.” In this case, that underclass is young, non-affluent Americans fed up with the direction of their society and the absence of venues to do anything about it — and courageous enough to speak out in public.

The result is a peaceful protest is turned into a melee justifying arrests.

How did we get to this place?

Anthony Bouza wrote his book in 1990, a much more “innocent” time of relative peace after the fall of the Soviet Union and before the Gulf War. Then came the 9/11 attacks, the Bush Administration’s declaration of a Global War On Terror (“You’re either with us, or you’re with the terrorists.”) and the astonishing rise of a globally based Homeland Security apparatus noted for the unprecedented linkage of military forces, civilian contractors and federal, state and local police agencies into a massive and frightening leviathan that operates in secret and is totally out of control.

On Sunday September 25th, 60 Minutes, a journalistic enterprise that more and more does shameless flak for the Pentagon and the Homeland Security leviathan, did a piece on NYPD Chief Raymond Kelly and the department’s vast anti-terrorism capacities. The story was the exact opposite in tone from Chief Bouza’s honest realism. Chief Kelly and his police were national heroes working to secure New Yorkers from another horror like 9/11. No questions about civil liberty issues were raised.

In such a climate of military/police paranoia, it’s not surprising that the day after the 60 Minutes fluff piece the NYPD is seen whacking citizens around for expressing views contrary to the flag-waving norm.

Those on the top in this society are trying desperately to hold onto all the power and wealth they’ve accumulated. They’re like deer caught in the headlights of history. So it’s not surprising to see NYPD cops who, by now, must be so thoroughly brainwashed in post-9/11 paranoia they’re ready to play out the things Chief Bouza speaks of on a scale he could not have imagined in 1990. We see NYPD cops near Wall Street attacking harmless, peaceful street protesters simply expressing a desire for economic justice. When have we seen a right wing Tea Party demonstration calling for an end to taxes and programs for the poor attacked like this?

Which takes us back to the opening of this story. Whether a society is seen as a “police state” depends entirely on whose ox is being gored. To cite an egregious example, the powerful and elite in Guatemala during the 1970s and ‘80s did not see their society as a police state – at least not in a critical way. Instead, this class saw what the police and military were doing (in this case, slaughtering and “disappearing” thousands) as necessary for their security, necessary to keep a massive, poor Native American population and their leftist supporters in check.

Right wing police defenders might take this as a reason to praise this country. See! Our police and military are not slaughtering people by the thousands. That’s because, again, we’re a sophisticated, “soft” police state. But the identical dynamic works here: The police use the power they have and the discretion they are given, as Chief Bouza makes clear, to do what cops feel is necessary to check “the group they’ve been pressured, implicitly, to control.”

Chief Bouza clearly sympathizes with cops in how they are placed by society between a rock and a hard place. Some cops clearly take personal joy in abusing leftists who would publicly demand justice. But cops are necessary in a society, and the job is not an easy one. Most cops are decent working men and women simply caught in the vice. That seems to have been the case in New York, with a few cops stirring things up to create a chaotic situation good cops were, then, compelled to address.

But it’s also tough being a leftist in America. The media is bought and sold by huge, cold-blooded, profit-making corporations and money runs our democracy to the point we have a government dominated by bullshitters and panderers. When a concerned citizens has had enough and takes to the streets, these days he or she is corralled and humiliated by a range of sophisticated and well-funded police agencies. Marginalization is assured.

What’s an American leftist to do?

What the young activists in New York are doing is a good model. You turn into Howard Beal and declare, “I’m mad as hell and I’m not going to take it anymore!” Everybody gets cameras and puts quotes from the 1st Circuit Court of Appeals ruling on posters or t-shirts. You realize the poor slob in uniform in front of you with the can of pepper spray is also a working man or woman and it’s him breaking the law when he pepper sprays you or slams you into a Volvo for using your First Amendment rights.

Since it’s against the law to employ your own pepper spray, you just have to take it like a Gandhi would. There’s no such thing as self-defense when it comes to cops, even when they are blatantly breaking the law.

The political left in America is on the ropes, and contrary to what some leftists would like to see, revolution does not seem on the horizon in America. That said, something is indeed happening, and the world is seeing more examples of bottom up expression.

Here’s what I think: The only thing that can save the United States of America from a dismal future the political right wants to lock us into is to rigorously debunk the slander of the left so the nation can begin to create a more healthy, economically just structure. That goes for ending the bankrupting state of endless war these same forces have collared us with.

Such a shift will do two important things: It will empower working people with health care and jobs so they’ll have security and money to spend, which will re-energize a capitalist engine; and in the spirit of a mixed economy, it will also mean a much needed injection of socialism into the economy – the sort of things Franklin Roosevelt had the courage to do.

Even one of the right wing’s most revered free-market economic gurus, Friedrich Hayek, conceded the healthy nature of a mixed economy in his famous 1944 polemic, The Road To Serfdom.

“There is no reason why,” he wrote, “in a society which has reached the general level of wealth which ours has attained the first kind of security should not be guaranteed to all without endangering general freedom.” He defined that security as “security against severe physical deprivation (and) the certainty of a given minimum of sustenance for all.” He went on further to say: “[S]ome minimum of food, shelter, and clothing, sufficient to preserve health and the capacity to work, can be assured to everybody. … [T]he case for the state’s helping to organize a comprehensive system of social insurance is very strong.”

Hayek’s view of a balanced economy sounds almost reasonable today and shows how very far to the right current thinking has gone after his beloved free market economy was driven into a ditch by greedy Wall Street pirates.

I plan to stand up for more economic justice with others in Washington DC starting on October 6th in Freedom Plaza, three blocks from the White House. Like others, I’ll have my camera with me. I hope DC cops don’t feel it’s necessary to slam me into a Volvo or shoot me in the face with pepper spray.

But if that’s how it has to be, that’s the cost of living free in a US police state.

JOHN GRANT is a founding member of ThisCantBeHappening!, a new independent, collectively-owned, journalist-run, reader-supported online alternative newspaper.