Bad Idea

I was a cop for thirty years, during that time I was punched, slapped or just plain hit to many times to count.  I have been kicked and bitten, complete with growling noises. I have been hit with a variety of blunt objects and struck by a car. I have been pushed down stairs and fallen off a cliff.  I have been shot at and missed. I always tried to give as good as I got. If I didn’t win on my own, I ultimately prevailed with the help of a small circle of friends. All of these assaults are classified as a felony under Texas law. Almost none of them were ever prosecuted.   Louisiana is proposing Offenses against police made enhanced as hate crimes.

I am against it for a variety of reasons.  First, if the District Attorney routinely dismisses Aggravated Assault on a Peace Officer charges, what reasonable expectation is there that the same DA will accept an enhanced charge?

Police officers put themselves in situation where they know that they will be assaulted. Cops know that most people’s last fight happened in junior high school.  In an emotionally charged atmosphere people are liable to react emotionally.  Cops on the other hand are involved in physical confrontations, routinely and they do not have an emotional involvement.  Most have skills that allow them to turn the missed or ineffectual swing into a takedown and handcuffing move.

The concept of a “hate crime” goes to motive.  The why something was done. Motive is important in 1940’s mystery stories.  It doesn’t mean squat in most prosecutions.  The state typically must prove that an offender knowingly or intentionally acted in the manner described, not why.

There are people out there that believe fighting with the police is recreation, just as much fun for the cops as it is for them.  Don’t believe me, Australia. Early in my career, there was Gilbert.  Gilbert was a barroom brawler. When his wife was unavailable to be beaten and nobody at his local watering hole would fight, he would raise hell until the police were called. Gilbert wouldn’t fight me one on one.  He was five inches taller and fifty pounds heavier. He would go one on one with officer’s in his weight class. Usually Gilbert would insist on back up and then wait for back up to arrive. If a female officer arrived, he would insist on more back up.  In the meantime we’re chasing Gilbert around the bar and he is running away trying to avoid the confrontation.  When the numbers and size were acceptable to Gilbert, he would make his stand. We would demand that he leave the bar. He would refuse.  At some point somebody would say, “you’re under arrest,” and the fight could begin. Gilbert did not bite. He might have frothed at the mouth a couple of times. He didn’t kick. He never tried to take an officer’s gun. Gilbert did not wave pool cues or broken beer bottles around. For our part we did not use Mace, nightsticks, flashlights or tasers on Gilbert.  The fight usually ended when we ran Gilbert head first into a wall. Once Gilbert was handcuffed one officer could take him to jail and book him. Gilbert had a reputation to maintain. He wasn’t going to jail without a fight.

So many times, when dealing with unruly drunks, they knew that they were going to jail. What they wanted and needed was a face saving gesture; a swing, token resistance or a momentary struggle.  Just so they could say, “I wasn’t ready, the cop cheated, or there were two of them.” If you are student of history you can find similar tactics at sea whenever the French or Spanish fought the British.  The British would fire at the French and Spanish, they would fire away from the British and immediately surrender.  That way they could say that they didn’t surrender without a fight.

At the other end of the spectrum are offenders who use deadly force or cause serious bodily in an attempt to get away or retaliate.  These offenders are already looking at serious prison time.  In Texas, a finding that the offender used a deadly weapon during the commission of an offense calls for extended incarceration prior to being eligible for parole. This is a straight forward proposition, did he or didn’t he? With a hate crime the jury is being asked to be a mind reader and there is too much wiggle room.

In order for a prosecution to be successful, the prosecutor must prove the “elements of an offense”. Let’s take aggravated assault: (1) a person, easy enough the offender is there for all to see, (2) intentionally or knowingly (there is a legal definition for each term but common knowledge will suit), (3) uses a deadly weapon, a deadly weapon is anything  depending on the manner in which it was used, or (4) causes serious bodily injury. If the prosecutor cannot prove each of the elements, (3,4) are either or beyond a reasonable doubt then he cannot get a conviction. For a hate crime additional elements are added (5) the victim is a protected class and the offender knew it (wearing a uniform, driving a car with lights and siren and announcing POLICE in loud voice does not make this a lay down) (6) because of his status the offender did various and sundry bad shit to the officer.  This is the equivalent of throwing a forward pass in football.  When it works it can be spectacular, but odds are it won’t work and may even work against you.

I am not suggesting that everybody gets a free shot at officers.  There are already laws on the books that cover assaultive behavior against cops  let’s make a commitment work with what we have, rather than adding additional charges that won’t get prosecuted.

 

h