COMMENTARY: When the video of Ms. Breaion King’s arrest surfaced a few days ago in Austin, Texas, I watched it and then read the comments on social media. About half of the people commented with the usual vitriol towards law enforcement, and said that her arrest typified a law enforcement predisposition to arrest people of color. The other half concluded that Ms. King was resisting arrest and got what she deserved.
The issues involved here are worthy of analysis.
Courtesy photo
J.R. Lonsway
My perspective comes from that of a retired deputy chief, who oversaw disciplinary matters for a uniformed services division, and also from a year spent as a lieutenant of the Professional Standards Unit (internal affairs), and as a uniformed supervisor (sergeant and lieutenant) tasked with investigating citizen complaints on officers. The offenses ranged from criminal behavior to violations of rules, regulations, and standard operating procedures.
First of all, there was no illegal arrest in this case. The Supreme Court held in 2001, in Atwater v. City of Lago Vista, that a police officer can arrest a driver for a traffic offense. A traffic stop for an observed traffic violation is legal (Whren v. United States), and even if the violation is a “fine only” offense, in which people are not usually taken into custody, the offender can still be taken to jail. (Ms. Atwater, a white woman, was stopped because she was not wearing a seatbelt and neither were her two children. The irony in the case is that the officer, also white, arrested her and took her to the police station in his squad car without buckling her up! The children were released to a friend of Ms. Atwater.)
I mention this case law only to point out the legality of the arrest of Ms. King.
Now, to the use-of-force issue. The media headlines I read described the arrest as “violent” and “brutal” — and to the untrained, inexperienced civilian it would certainly appear that way. It looks as if Ms. King is getting tossed around like a rag doll, and many find the video disturbing while labeling the conduct of the officer as unacceptable. However, as any officer who has ever arrested a woman can tell you, if she physically resists arrest it can be very difficult to control her while employing the minimal force necessary.
With respect to the size of the officer versus the size of the offender, if a person brings their arms together against their body, tenses up and clenches their fists in a refusal to allow the officer to handcuff, then the level of force used by the officer must escalate to overcome the resistant actions taken by the arrestee. I don’t care how big, strong, and in-shape the cop is, if someone puts up an active, physical resistance, even a woman he may outweigh by as much as one hundred pounds, it is very difficult to control them, much less get the handcuffs on.
That is why the officer who arrested King escalated the force to the level of taking her down to the ground, and it appears he is using her momentum to help accomplish that task, although not without a struggle as she is actively, versus passively, resisting. (Personally, I would have pushed her against a vehicle for leverage so that I would not have to go to the ground with her, because if she has her arms underneath her and my weight on top, that compounds the difficulty of getting her arms out from underneath her body.)
So, the question now becomes, was the force necessary and justified?
The answer to that question is: At this point it does not matter. The incident occurred one year ago and has already been investigated internally. The officer was given a verbal reprimand (not sure for what) and the case has been adjudicated. Under the Peace Officer’s Bill of Rights, once a complaint has been adjudicated, the officer cannot be investigated twice for the same offense because double-jeopardy applies.
That leaves a criminal investigation, and the statute of limitations may prohibit that pursuit, but even if that is not applicable, any statement given by the officer during the internal investigation cannot be used against him for the criminal investigation. The Supreme Court held many years ago in Garrity v. New Jersey that a public employee who is compelled to give a statement during an internal investigation is doing so under threat of job loss for failure to cooperate, and, therefore, cannot have that statement used against him in a criminal proceeding.
If the officer in Austin “lawyers up,” investigators would have to go with the patrol car video as evidence, and I don’t think a criminal charge, whatever it may be, would hold water. In all likelihood, there will be no criminal proceeding and Ms. King will have to seek recourse through a civil suit. There could be a DOJ civil rights investigation if requested by the City of Austin, but I don’t think anything would come of that simply because the arrest was legal.
Police departments, in general, frown on arrests when a citation would do. It is generally bad P.R. to make these types of arrests, and they tie up manpower because one officer has to transport the prisoner while another waits for the wrecker to tow the car, and then the prisoner has to be processed at the station and afterwards taken to jail. It is time-consuming.
That is why, generally, the only traffic offenses people are arrested for are DWI, driving under revocation, sometimes reckless driving or leaving the scene of an accident, or just plain refusing to sign the citation. But, if it is not illegal for an officer to arrest for mere traffic offenses, as the Supreme Court has determined, does that mean a police chief can prohibit the activity? Yes and no. The general rule of thumb is, if the action negatively effects operational efficiency, it will be strongly discouraged. In other words, some custodial arrests are necessary, but if a traffic ticket will suffice, then don’t arrest the driver.
This leads us to the final and most significant question: Was Ms. King arrested because she is black? The only person who can answer that is going to be asked that question during the investigation (if he doesn’t lawyer up). For sure, investigators will dig up his past history, including any other citizen complaints, previous discipline, prior arrests of persons of color, and go forward from there.
Whatever the findings, once again law enforcement finds itself in a position where the entire LE community is under national scrutiny because of the actions of a few. (I say “a few” because of the remarks made to Ms. King by the officer that transported her. Those remarks were inappropriate, and in the absence of the video would probably result only in a verbal or written reprimand. But more than likely he is going to be standing in the unemployment line very soon.)
J.R. Lonsway is a retired deputy chief of police with the City of Las Cruces and the author of Twenty. He blogs at jrlonsway.com.