The Police “Use of Force,” and Berkeley’s “Use of Farce”

Photograph by Nathaniel St. Clair

Recently, the police concept of Use of Force (UOF) has become an issue across the country, and ordinances are being passed calling for “minimal” force from police. For some reason, giving a person a heart attack through repeated (and sadistic) use of a taser has come to be seen as “excessive.” And so does pepper spray used against crowds calling for justice for someone shot to death by the police. Yet PDs insist that these technologies are themselves minimal with respect to … what? Wouldn’t minimal pepper spray be “zero” use of it? Wouldn’t minimal use of a taser still be use of a taser? The knee that killed George Floyd, was that minimal? Compared to what?

When we consider minimal force, and we look at the tools, the weapons, the technologies of force, aren’t we looking at the wrong thing?

What the police consider proper use of force, however, is something else. Ordinances requiring the police to use a minimum of force have been passed at the state and city levels. In particular, the Core Principle of De-escalation in Berkeley has been that “…in any encounters that call for applying force, officers must always use the minimal amount of force that is objectively reasonable …”. And the police have wanted to insert “strive to” before “use the minimal” in that sentence. But if it isn’t the technology that kills, then it is the “striving” to use force in the first place that is the problem. “Strive to” use minimal force; does that mean going up or down in degree? Clearly, behind this ambiguity, the cops want the decision on what constitutes “minimum” to be entirely in their own hands. So much for civilian regulation of “excessive force.”

Somehow, the Berkeley City Council could not bring itself to not grovel on the issue. They took out “strive to,” and substituted “a minimal amount” for “the minimal amount.” Thus, a zero level of violence was relegated to a parallel universe.

The Council couldn’t even see the police ideology when it was thrown in their face. In its presentation to the Council, the BPD had a training officer give a hypothetical case to illustrate why “strive to” was necessary in the ordinance. In his story, an officer goes to arrest a person, who then raises his fists and adopts a fighting stance (a fairly silly thing to do against a man with a gun). Any “reasonable person,” the cop then declaims, would interpret this as “violently resisting arrest.” So, he asks, “What level of force would we need to respond?” And he lists the possibilities (pepper spray, taser, nightstick, etc.). As a cop, he apparently cannot see past the use of weaponry, as a sort of first principle. And his argument is that to constrain an officer to a prior level or concept of violence could put the officer in danger if it was the wrong kind for the circumstances. Translation: “the wrong kind of weapon.” There is no “minimal” there. Minimal use of a stun gun is a use of a stun gun. This “failure to communicate” lay in Council’s inability to ask, where is the gradient between stun guns, pepper spray, beating with nightsticks, etc.? If we are only speaking of a gradient in modes of torture, what are we really talking about?

The horrendous implication of this is that language, words, civilized discussion, a zero level of force beyond existent law is not even on the table. How many people would be alive today if the constitutional guarantee of due process had been implemented? “No person shall be … deprived of life, liberty, or property, without due process of law.” A cop couldn’t even handcuff a person without some legal process saying it was okay, and in which the subject to be cuffed had a say. That second clause is very important.

But in the story, the cop assumes an aggressive rather than defensive stance. So his first thought is a violent technological defense, ignoring the reputation the police have for their use of arbitrary violence. When Rebecca Musarra was stopped for speeding on October 16, 2015 near Trenton, NJ, she refused to answer any of the cops questions. He pulled open her car door and dragged her out of the car, throwing her down and handcuffing her – for having said nothing. As he arrested her, he recited her Miranda rights, among which are “you have the right to remain silent.” When Korryn Gaines locked her door and refused entry to the police who claimed they had a warrant to serve (August 2016, near Baltimore), they broke down the door and shot her dead as she sat on the floor typing into her facebook page about what was happening. Yet the training officer finds it unimaginable that the person approached is trying to defend himself.
Law enforcement means catching and charging people who commit crimes. It doesn’t mean stopping people in the midst of their lives, and demanding things (answers, stances, etc.) for which they can be arrested for disobedience or (in oxymoronic fashion) resisting arrest.

In a society in which the police openly carry and use guns, and shoot people in cars every week somewhere in the US, torture people into submission with tasers, beat demonstrators with nightsticks, and break into houses with guns blazing in order to serve a warrant, what is so mysterious about asking them to tone down the violence a bit? De-escalation, as a restriction on use of force, means “use less,” not “try to use less,” nor choose between one form of torture and another.

In Section 300.1.2 of the Berkeley Municipal Code, the ordinance would read: “In all cases where physical force is used, officers shall [strive to] use the minimum amount of force objectively reasonable, objectively necessary, and proportional to effectively and safely resolve a conflict.” [blink] How can the cops resolve a conflict in other that a self-aggrandizing manner in which they are one of the parties to the conflict? It is a ticket to whatever level of force the police decide to use to prevail in the conflict – totally street-level “conflict resolution.”

The people, in their public comments, were not fooled. They saw that the blandness of council’s position essentially affirmed the right of the police to get as violent as they like. And they understood that to “strive to use minimal force” implies that “minimal force,” when set as a goal, implied that the routine levels of police violence were not minimal. Why not?

For what purpose did the police originally conceive of routine levels of force greater than minimal? Why were the routine uses of force already so high? For what purposes do they use levels of force greater than civil society itself thinks is proper? Who are they working for? And on what basis have they ignored the massive demonstrations calling for a cessation to killing people, and especially black people? On what basis do the cops consider what they do to be “objectively reasonable”?

Well, this is where the whole thing gets really absurd. The law holds that levels of violence are to be judged as “objectively reasonable” to another cop who ostensibly puts himself in the shoes of the first one. Don’t laugh. That expression, “objectively reasonable,” makes its entrance into US jurisprudence in a Supreme Court decision about police violence in 1989 (Graham v Connor).

“Objectively reasonable” is an oxymoron

All human interactions proceed according to what each person judges the other person to be doing or saying. “Reasonable” refers to judgment. For an action to be judged reasonable or unreasonable, the person judging it has to be included in the perception. The perceiver who judges is inseparable from their judgment of that perception. Yet the law assumes the opposite, that somehow the character of an action is mystically independent of the person who gives it that character.

For something to be “objectively” perceived means it is perceived as an object. Height, weight, extension, color are all aspects of a thing’s objective character. But there is no metric for what occurs interactively between two people. No judgment can be objective, since judgment is itself a subjective evaluation of a situation. Not only does the one judging determine the nature of his/her judgment, but what led up to the event has to be known. An action can be judged only in terms of that to which it responds. To see someone punch another person, one has to know what preceded the punch – that is, to what it is responding (offensively or defensively).

Now, when the ordinance under consideration by the council speaks of force, it says, “where physical force is used, officers will strive to use the minimal amount.” The passive voice in that statement excuses the officer from being an active participant in the event. A situation containing the officer and his own actions is somehow presented to the officer without any mention of what preceded it, in which the officer participated. In other words, the need for violence just seems to fall from the skies.

Nevertheless, the officer has to have done something for a person to have adopted a defensive stance against it (let alone an offensive one). One cannot understand the person’s reaction independent of the cop’s approach. Nevertheless, in Graham v Connor, a second police officer is used as the source for judging a cop’s action as “objectively reasonable.” Thus, it stacks the deck in favor of the police perspective, and reduces humans to enforced subordination to police judgment.

How do the police create “objective” situations?

The only way an event between people can have an objective character is if one of those persons considers the other a thing. That is what the police do when they give commands, and expect obedience to them. One can then judge “objectively” if the person obeyed or not. The question then becomes, what makes the command reasonable? That is left out of the use of force ordinances. The Supreme Court assumes that, because a cop gives a command, it is apriori reasonable. Thus, shooting a 27 year old woman who locks her door to refuse a warrant she thinks is unreasonable, is a “reasonable” response to her disobedience.

A social hierarchy is constructed. If the cop’s commands are reasonable by definition, then a civilians non-compliant responses are, also by definition, unreasonable. These become “objective” characteristics of the police mode of control being described here.
Striving to use minimal force” now has two meanings. One is the absoluteness of police demands for obedience, failing which there will be violence. The other is the ability to torture in response to disobedience. Neither has to do with law enforcement. Both only have to do with social control. Law enforcement involves finding and apprehending a suspect in response to a crime having been committed. It is a relation concerning the past (immediately recent or not) between an individual and society. Control focuses on the present relation between the police and other persons, and deals with regimentation in the immediate future, a future in which a cop is to be seen as a “commanding officer.”

A “commanding officer” paradigm is characteristic of a military form of organization. Its central ethos is immediate obedience to commands given by those of higher rank. In this society, one has to enlist in such a military organization in order to consent to submission to that ethos. If one does not, then to impose a militarized relation through police commands is already a form of violence done to a person’s social status. As soon as that happens, as soon as a cop gives a command and expects obedience, it is too late to return to a zero level of violence. The command constrains a person to social regulations without their consent and against their human rights (to life and liberty), to abridge which is a crime. It becomes a “wildcard” for the cops, since no legislature or judge has been able to define what would constitute a “lawful order.”

Insofar as people do not consider this society to be a military organization, the character of “commanding officer” assumed by a cop takes the initial form of violence. Physical violence is what then follows, as soon as disobedience is detected by the “officer.” While sitting in the back of a car, and simply refusing to raise his hands when ordered to do so by a cop, Kenneth Jones was dragged out of the car and shot four times. (Martinot, Planet, Dec. 3, 2020)
Obedience becomes the only route to any “objectivity” concerning police-civilian relations. Because “unconditional obedience” can be demanded by the police in the name of the “objectively reasonable,” the fundamental relation between the police and the people has already been placed on the level of minimal force. A society that excuses that level of violence to be extant as a social norm has thus profoundly betrayed its fundamental law.

In addition, enforcement has been shifted from the law to the cop himself. The next step up in the deployment of force is to cross that boundary between violence and sadism represented by the deployment of instruments of torture. To torture a person by throwing them to the ground, by stunning them with a taser, by shooting them in the back (in totally cowardly fashion) because they refused to submit to a police command, is to place abject criminality at the core of all human-governmental interactions in this society.

In not postulating a zero degree of violence for the police (by forbidding the “commanding officer” paradigm, for instance), the City Council of Berkeley has affirmed those police operations that shift individuals from a domain of law to one of militarized police power. It is what makes the police a “political police,” since control and obedience are political relationships, not legal or litigious ones.

It is in this sense that there is a coloniality in the way police function. They adopt the arrogance and power of a colonizer, with a monopoly on means of punishing the colonized who dare to resist them. Insofar as these two societies (civilian and police) have different concepts of rights, they constitute different cultures. In particular, the police have rights civilians don’t, the main one being the ability to deny the rights of the civilians.
We shall deconstruct this notion of coloniality in the next article.

Steve Martinot is Instructor Emeritus at the Center for Interdisciplinary Programs at San Francisco State University. He is the author of The Rule of Racialization: Class, Identity, Governance, Forms in the Abyss: a Philosophical Bridge between Sartre and Derrida (both Temple) and The Machinery of Whiteness. He is also the editor of two previous books, and translator of Racism by Albert Memmi. He has written extensively on the structures of racism and white supremacy in the United States, as well as on corporate culture and economics, and leads seminars on these subjects in the Bay Area.