When considering what jurisdiction in this world is or is not, or perhaps which one just might be ever so slightly closer to being the land of the free than some other's let us examine a snippet of text that enumerates a right of citizens of some actual jurisdiction the world which might give many people in the United States some pause:
"Any arrest, detention, trial, or punishment which is not in accordance with the procedure prescribed by law may be resisted."
This comes from the English translation of the constitution of the Republic of China,1 Chapter II, Article 8. The small Island nation which exists under the constant threat that its neighbor, which claims it as a part of its sovereign territory , might as some point make good on its claims. In other words a Government with an actual constant adversary includes the right to resist unlawful arrest. Meanwhile in the United States the new Cool, Hip, and Totally going to fix everything in New York Mayor Bill De Blasio offers citizens of his city:
â€œWhen a police officer comes to the decision that itâ€™s time to arrest someone, that individual is obligated to submit to arrest. They will then have every opportunity for due process in our court system."
The funny this is, this "obligation" to be arrested actually is enshrined in the law of most US States. Given the "catch and release" arrests Journalists are facing as they cover the police violence and backlash to said police violence in Ferguson, Missouri I'll just throw up the text of the relevant Missouri Statute on the Subject:2
Resisting or interfering with arrest--penalty.
575.150. 1. A person commits the crime of resisting or interfering with arrest, detention, or stop if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, or the person reasonably should know that a law enforcement officer is making an arrest or attempting to lawfully detain or lawfully stop an individual or vehicle, for the purpose of preventing the officer from effecting the arrest, stop or detention, the person:
(1) Resists the arrest, stop or detention of such person by using or threatening the use of violence or physical force or by fleeing from such officer; or
(2) Interferes with the arrest, stop or detention of another person by using or threatening the use of violence, physical force or physical interference.
2. This section applies to:
(1) Arrests, stops, or detentions, with or without warrants;
(2) Arrests, stops, or detentions, for any crime, infraction, or ordinance violation; and
(3) Arrests for warrants issued by a court or a probation and parole officer.
3. A person is presumed to be fleeing a vehicle stop if that person continues to operate a motor vehicle after that person has seen or should have seen clearly visible emergency lights or has heard or should have heard an audible signal emanating from the law enforcement vehicle pursuing that person.
4. It is no defense to a prosecution pursuant to subsection 1 of this section that the law enforcement officer was acting unlawfully in making the arrest. However, nothing in this section shall be construed to bar civil suits for unlawful arrest.
5. Resisting or interfering with an arrest is a class D felony for an arrest for a:
(2) Warrant issued for failure to appear on a felony case; or
(3) Warrant issued for a probation violation on a felony case.
Resisting an arrest, detention or stop by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person is a class D felony; otherwise, resisting or interfering with an arrest, detention or stop in violation of subdivision (1) or (2) of subsection 1 of this section is a class A misdemeanor.
Now this is a large wall of text, but the laws in many states are similar. Portions of the text have been made bold to make it clear that merely walking away from a police officer who has taken an interest in you is a criminal act allowing your arrest for which there is no defense based on the illegality of officer's consumption of your time. Sure, the statute allows for civil suits in the event of unlawful arrest, but that does nothing to make an arrest for the high crime of walking away from a police officer an unlawful one in which you might successfully pursue a suit for the arrest. While this point of law hasn't been discussed much in the conversations around Ferguson because of all the immediate police violence happening, I imagine it will become an issue when it comes to charging or trying Darren Wilson.
This is in contrast to the law at the time of the United States founding when inheriting the common law from England3 as well as case law well over a hundred years after the ratification of the United States Constitution. In the 1920-40's though the precedent was questioned in academia and by the 1960's courts had taken the academic "what if" precedent over the actual legal precedents established in court. When you combine the exceedingly open-ended definition of "resisting arrest" with the perversion of precedent, and further combine it with vague criminal laws concerning such matters as disorderly conduct or "failure to identify" and environment is created where there needs to exist no statute forbidding "Contempt by Cop" for the de facto situation to exist where an entire class of people can't be told to fuck off or questioned while at work. Never mind that the entire justification for civilian police and their ideal conduct is the converse of the situation in the United States as evidenced loudly in St Louis County now and more quietly in many other places at other times.
Instead of police who are merely citizens with greater obligation of service to their fellow citizens you get entitled rants where the title implies anything other than the platonic ideal of perfect submission justifies your pain and destruction. You get a United States that would be the freest country in the world, if only the number of persons incarcerated per capita were positively correlated with freedom. You also get situations where even former police officers find themselves free, but unable to escape Ð±Ð¾Ð»ÑŒÑˆÐ°Ñ Ð·Ð¾Ð½Ð°.4 In this way the police and political officers of the court work to present themselves as hedgehogs who can't be buggered at all.
In St Louis county where young people might be stopped several times a month by the police for attracting interest through their biological accident of being black, today's placebo offered as a panacea was diversity training for officers and police encounter training for the youth is going to be unsatisfying and unlikely to assuage discontent. These are young people who want a future of some sort and know that if during such frequent encounters their persistence in being might cease because either the officer, themself, or both are having a particularly bad day their life can end. I mean in 2009 the Ferguson police department charged a wrongly arrested man for the audacious crime of bleeding on their uniforms when they beat him.
Regardless of what might come out about Mr. Brown's character, the circumstances the lead to the current situation are disturbing, and it isn't really hyperbole on the part of nations the United States has criticized for their human rights records coming out and saying this response to Ferguson is fucked up. Maybe there's an element of jealousy, if only they could afford Bearcats, LRADs, and full ballistic armor for their departments of fear. Whatever the most immediate catalyst for calm ends up being in this situation, I doubt a long term solution is possible that does not seriously address the problematic criminal codes in the various United States in a way which restores everyone's rights in the United States to at least a pre-1960's "white man" level instead of what seemed to happen where everybody's rights were dropped to a Jim Crow level in the name of equality while actually continuing to be prosecuted to maximally keep the black man down.
- Also referred to as Taiwan or Formosa. [↩]
- Missouri Revised Statutes, Chapter 575. Offenses Against the Administration of Justice, Section 575-150 [↩]
- Matthew Lippman, Contemporary Criminal Law: Concepts, Cases, and Controversies 250 (2009) [↩]
- Soviet term for, the big jail. The one where it might seem to casual observers you are free. [↩]