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How Many Kicks to the Head Does It Take?

A suspect crashes his car after leading El Monte, CA police on a dangerous, sometimes high speed chase and flees into a residential neighborhood. Soon cornered, he gives up in a backyard and lies face down, arms and legs out, surrendering. An El Monte police officer runs up, gun drawn, and kicks him full force in the head. He is inert after the blow, possibly unconscious. This does not stop a second officer from punching him repeatedly in the ribs. A third officer arrives and lets a police dog bite him once on the leg. The first officer slaps the K-9 officer a high five. All of them, the three officers and the dog, have their extra-judicial treat for catching a bad guy. In court, it would be the scofflaw’s word against three sworn police officers, except a news helicopter catches the whole incident on live video.

The suspect goes to the hospital, and the officers goes back to work, while the ACLU calls vainly for placing the officer who dealt the kick on administrative leave. (He has since been reassigned to desk duty.) Los Angeles, which has in the past erupted in riots over such brazen police abuse, is mercifully quiet. The El Monte Police Chief Tom Armstrong responds measuredly that he is withholding judgment pending the facts. “I worked internal affairs for four years and I have learned that you do not make a decision in a vacuum,” Armstrong explains. “I do not know what was in the mind of that officer, as to why he did that. I saw the individual turn his head toward the officer.”

As a police misconduct civil rights lawyer, I can say that what was in the officer’s mind is probably the same as what is evidently going through his Chief’s head: What can I get away with here, while the public isn’t looking? In my ten years of practice, I have seen scores of ordinary officers accused of brutality insert their cover stories into the gaps in the video and other evidence. It is in such gaps that they often blame the victim by pretending that s/he reached into a waistband for a weapon, or reached for the officer’s weapon – veritable police clichés. But there are no gaps in this video. It is shot from overhead, clear, continuous, and unmistakable. The officer lost his cool and punished the surrendering suspect on the spot with a potentially lethal kick to the head. That much is painfully obvious. If he stopped to think first, it was only to calculate, incorrectly, that no one was looking.

But are we looking? What possesses a Police Chief, who is responsible ultimately for the safety of both his officers and the public they come in contact with, to let such an unhinged officer return to work and to dither so before condemning his actions? Why should he not be arrested forthwith and charged with felony assault or attempted murder like any civilian in his shoes would be?

The self-evident answer is that Chief Armstrong is not interested in accountability but in cover-up – notwithstanding his pious intonations that he worked in internal affairs. An honest internal affairs investigator does not supply an excuse for the officer under investigation by saying, as Armstrong did, “I saw the individual turn his head toward the officer…” Look for that dot dot dot to form the foundation for the official excuse – unless the absurd excuse supplied by the police union’s lawyer Dieter Dammier gains traction first: that the kick was a justifiable “distraction blow” to thwart the suspect from getting up or reaching for a weapon in case he might try to do so. But if the video did not depict his complete surrender, it is hard to imagine what that could ever look like.

Chief Armstrong may equate such excuse-making with the wellbeing of his police family. If so, it is a dangerous equation. A good and sensible police chief would instead consider what the lack of swift condemnation of such brutality spells for the dynamics between police and the public. Countless people in this country live amid an epidemic of police violence. Rare videos like this one only serve to assuage the mainstream that brutality is rare, is addressed when it arises, and therefore does not demand systemic reform. On the contrary, rampant police abuse is creating a widening gulf of mistrust between police and the public they putatively serve. Common to many but alien to the rest of us, it may help explain why someone like the 23-year-old evader in this case would run from police in the first place.

On the police side, the failure to prosecute assaultive officers only exposes responsible officers to danger by an incensed public robbed of any reasonable hope for official accountability. John F. Kennedy famously warned: “Those who make peaceful protest impossible make violent revolution inevitable.” Officers, made more fearful as a result, turn even more aggressive. So goes the vicious cycle. Have we learned nothing from the Rodney King beating and riots?

But who could expect responsible local government action when the federal government sets such an atrocious example? The President inveighs that prosecuting the architects and executors of U.S. torture policy, and releasing photos evidencing torture, may undermine agents’ morale and expose soldiers in combat zones to retribution or death. But have we calculated the cost, in potential future attacks, of failing to show the world that we can police ourselves and abide by our own standards, let alone the cost to our own moral fiber? No arrested criminal, or victim of U.S. torture, gets the benefit of such nuanced, exception-based analysis. These double standards will undo is. It is not for the perpetrators to let bygones be bygones and only look ahead, as the President counsels. The victims do not soon forget.

William Brandeis, a wiser Supreme Court Justice than most, observed: “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself.” (Olmstead v. United States, 277 U.S. 438 (1928)).

Unless we are willing to apply consistent legal standards, we will only spin further to the edge of our moral compass, and will find ourselves putting down ever more justifiable rebellions by ever increasing excessive force.

Each extra-legal kick to the head which does not jar us to our senses becomes one more intolerable exception to democracy. We only get so many exceptions before we simply cease to be.

BEN ROSENFELD is an attorney in San Francisco.

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Ben Rosenfeld is a civil rights attorney in San Francisco.

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