Is there a duty to damn?
In the bowels of the OJB archives is a draft article I was composing in a response to this comment from Steve Baxter (which I’ve cleaned up a little for republication), which will never (I hope) see the light of day. Tempers were high then, perhaps lower now. This is what I’m posting instead.
Baxter wrote:
I am so sick and tired of hearing the same old crap when you lot defend your inaction on Kelly Thomas with your committees and tasks force on the homeless, that serve as a means to pad your resume and go to a gala at the end of the year, more than better the lives of our most marginalized.
… [Nine] months [after Kelly Thomas died], all the police sergeants, captains and lieutenants, who watched the video long before the rest of us, then lied about Kelly being the aggressor and then allowed 5 of the 6 police officers, who were involved in the murder to continue to patrol our streets and free to harm others for another six weeks, are still employed, and suffer no consequences. Goodrich has in fact since been promoted.
I EXPECT THE MAYOR, SOMEONE WHO I HAVE SUPPORTED SINCE BEFORE SHE EVEN TOOK OFFICE, TO DEMAND THAT PEOPLE LIKE GOODRICH CORRECT THE RECORD AND CLEAR KELLY’S NAME, AND THEN TO DO ALL SHE CAN TO SEE THAT THEY ARE FIRED OR DEMOTED. …
… [A]sk yourself why you have alienated someone like me, a life long Democrat with a history of activism, to the point of changing to independent. Last night i told a house which was filled with progressive leaning guests, all invited by me, that Matt Rowe, not Doug Chaffee, had my full support.
I think that the first paragraph is, let’s say uncharitable, but Baxter and I don’t know each other well so I’ll let it pass. I do want to address the final three, though, as well as a comment that Baxter asked me to post for him. (I’ve fixed a couple of punctuation marks, that’s it.)
OK, a lot of people (especially around FFFF) are saying things like that, so let’s take that on too.
Kelly being the aggressor:
Cops don’t think the way most of us do about aggression. Police are supposed to take control of a situation, demanding compliance from those around them. This is not an accustomed or a comfortable situation for most of us, but they really do have a legal right to do it, even for foolish and incorrect reasons. They get to assess the situation. No, you cannot override their judgment because you think that it’s stupid; you can be arrested for that, even if you’ve been a perfect angel and the officer has not. That’s why giving a person the power of a police officer is an awesome thing that demands a high level of ethics and skill.
Kelly did not obey orders at various points. (He had the right to ask if he was under arrest, and if not under arrest, to leave — but he might have then been arrested on some completely groundless pretext rather than an almost groundless one.) He was being goaded, taunted, and insulted — none of which is illegal. I think that it’s rotten, but it’s not illegal. It’s not even necessarily a violation of a department’s rules; in some cases, in fact, using humiliation of a suspect as a means of control could be superior to using force. But he stood up, he refused the order to lie down on the ground, he walked away, he briefly raised his hands to Wolfe (in what seemed to be self-protection), and then he ran. I think that none of this makes him “the aggressor.” The question is whether it is unreasonable for a cop, who knows the law, to call him “the aggressor,” and I suspect that cops are trained to think of someone that way. In Occupy rallies in Northern California, one protester was deemed an “aggressor” simply for not climbing down from a small pedestal (or some such.) Is that “aggression”? Clearly not — unless, maybe you’re a cop wondering if someone is getting a better vantage point from which to shoot you.
Point is, I think that the spokespersons’ assertions that Kelly was the aggressor is pretty absurd. That does not mean that the police do not believe it, by their definition of aggression. If so, it may be a delusion but it’s not a lie.
5 or 6 police officers were involved in a murder
Looking at the video, 2 or 3 of the officers were not involved until the end, when Cicinelli decided that Kelly’s writhing in pain was not incapacitated enough and so he bashed his face in. If anyone encouraged him towards this unbelievable overreaction, if anyone said “Jay, smash his face in” or noticed what he was doing and gave him the nod, then yes, they were involved in a murder (or, more likely a manslaughter.) For the others, except Ramos and Wolfe, their “involvement” was not the sort of thing that would make me worry about their being on the streets. As for Ramos and Wolfe, they were involved in a pretty sketchy arrest for possessing stolen property turned legally legitimate but ethically weak arrest for resisting arrest. There’s no indication that they knew what Cicinelli was about to do or wanted him to do it; then just wanted Kelly to be maximally incapacitated by lying face down with his hands behind his back. That’s not murder, or even involvement in murder.
Free to harm others
I don’t see any reason to think that the three cops I haven’t named were more likely to harm others than any other Fullerton cops. As for the one’s I’ve named: Wolfe, possibly; Ramos, maybe; Cicinelli, definitely.
Mayor should clear Kelly’s name, etc.
Having seen the video, I think that it’s fair for the Mayor to let it speak for itself and address those things that won’t be resolved in court. Some bigger employment lawyer than me would love for a city official to have declared Ramos and Wolfe guilty. If, as I expect, Wolfe isn’t charged and Ramos isn’t convicted, they’ll have a nice little defamation suit at the end to add insult to injury. Think of it as an additional pension.
Supporting Rowe over Chaffee
I like Matt Rowe, just as I like Jane Rands; each is my second-choice for the seat they seek. I would not be distressed to see either of them win next month. I just like Doug Chaffee and Paula Williams more.
Baxter’s statement suggests that he considers Chaffee to be a coward and a weasel. Let’s take that notion head on.
“As an attorney I have a greater faith in law than the average citizen, and although I was personally outraged, I decided that the best course of action was to defer to the experts and not inflame the anger and cause even more division in our bla bla I’m a coward bla “
Baxter thinks that Chaffee should have condemned the incumbents at the outset by signing the recall petitions. People may not have thought through the idea fully: For Chaffee — the only candidate who literally was almost elected in 2010, losing in a recount — supporting the recall could have made it less likely to succeed by making it look like his opportunistic effort to reverse the recount. Because Chaffee arguably stood the most to gain from a recall, his staying out left it less political. Criticizing him for not politicizing the events is just weird. He knew that if it was going to pass, it could pass just as well without him.
Baxter thinks that Chaffee should have condemned the officers involved. His fake statement for Chaffee claims a greater than average faith in the law. I’d say that this is about half-right: decades of legal practice have given Chaffee greater than average experience with the law. Part of the curse of being a lawyer is that experience teaches you that the facts will usually be more complicated than you imagined they would be. One therefore learns to reserve judgment, to wait until a case is fully developed. There is nothing wrong with not jumping to a conclusion. This time last week I’d have said that Ramos was going to be found guilty; now I don’t think that he will. Is Chaffee somehow worse than me because he held his fire? He’s a community leader; what he says matters more to people than what an FFFF groundling thinks. He’s know for responsibility, so he has to be more careful.
Baxter thinks that Chaffee should have spurned McKinley’s supposed endorsement if he is recalled. I don’t know if McKinley actually offered his contingent endorsement, but if he did I can see why. McKinley presumably did so because it’s possible that the City Council, especially with Sharon leaving to run for Assembly, is going to be <i>extremely inexperienced</i> come January. (Bruce Whitaker would be the most experienced, if he’s re-elected, but he’s not exactly a moderating influence, and condemning government roundly isn’t governing.) I disagree with McKinley about a lot of things, but I believe that he wants to see the city government run well, even if by someone with an opposing philosophy. That means wanting someone with Chaffee’s experience and understanding of the world as a lawyer — without which I think that the Council is more likely to face trouble.
Chaffee has received a lot of criticism for his response to the Kelly Thomas killing in the Fullerton Observer, in which he talks about community policing. For those who don’t know, community policing is Dan Hughes’s initiative to build relations with the citizenry that help to stop crime — and it is a good idea. Chaffee apparently thinks, I’d say rightly, that the city is on the right track in this regard. It would not have prevented this tragedy, but it is a good direction for Fullerton overall — and, from a legal perspective, it’s highly inconsistent with the sort of approach that got Kelly Thomas killed. (I presume that that was Chaffee’s point in his answer.)
Does all of this mean that I think that Matt Rowe, by taking a more critical stand, has done something improper? No. Matt brings some relevant experience as a military commander and I am glad that he feels strongly about avoiding massacres. But I’m very interested in hearing what he thinks after viewing the video. Does he blame the officers involved — or the underlying policy? I would not be surprised if he agreed with me that the policies were rotten but that Ramos and Wolfe were properly (or at least legitimately) discharging their duties by acting as they did. (I suspect that he and I will agree on Cicinelli.) Maybe he’ll check in and say so.
The best comment I’ve seen on this whole affair comes from Glenn Georgieff, whom Baxter and I both support, who says that he thinks that then-Mayor Dick Jones (whom he seeks to replace) blew it with the cavalier attitude that he showed at the start of events, where he didn’t even seem to take the concerns of the critics seriously. That’s a fair criticism to hold against Jones, who represented the city. It’s not a fair criticism of Chaffee.
Damn you write lengthy articles in response to comments!
Yeah — and about something so trivial, too.
Let’s just say that it’s worth my time (and yours) to help people think it all through.
I believe that when there has never in Orange County legal history been a single case where a on duty police officer was as much as charged for any type of violence against a witness or a suspect in a criminal court, when there have been thousands of complaints, the assumption should not be the due process will reach a just conclusion. After six weeks, five of the cops were still patrolling the streets, and Ron Thomas was saying that no one will speak to him at the FPD. Anyone interested in defending the oppressed and defending those who can not defend themselves would have spoken up.
By the way, I confirmed tonight that Chaffee has not once reached out to explain his silence or to wish the family condolences. Do you really think he was absent for prudent legal reasons rather than political ones? If you say yes I will not believe that you are doing anything other than following a script.
The cops also said Kelly had broken into cars and fought back so hard that officers received broken bones. I’m not saying they did not received broken or fractured bones, but it was not because Kelly fought back to violently. Do you feel the police department should at least say they were mistaken when they made these assertions?
I have a letter explaining why I back Matt Rowe, would you be kind enough to pint it for me? (By the way, I won’t be upset if you print your angry retort, get it out of your system, i won’t even respond. Keeping that shit inside you will grow a tumor) Sage advice … again.
Hey Greg– Matt posted on the 8th regarding the video: http://rowe4fullerton.com/uncategorized/justice-for-kelly-thomas-and-the-rights-we-share/
While your opinion is insightful, if you would, please point me to something that Mr. Chaffee has written on the topic. It’s been a week since the video came out. It’s been 10 months since the video was recorded. I believe that Mr. Chaffee has had more than enough time to compose a thought.
That’s a very legitimate criticism.
He doesn’t write on blogs. He does not appear to be campaigning on the issue, although I think I recall from our conversation that he thinks it was a terrible tragedy. Why should he write on it? Seriously — is the policy issue in this election the extent to which we should blame the police for Kelly’s death? I think that the police issue should be how we can prevent a recurrence of it.
On that, I can point you to the much-maligned statement he wrote about community policing, which he seems to believe is a significant step forward for the FPD and which he thinks will make future problems less likely.
Which do you think he should do as a council member — condemn people (especially before the evidence was out) or take positions on policies that may solve Fullerton’s problems? You seem to want to condemn him for doing the latter. Why? We’re waist deep in condemnations, but still searching for solutions.
Greg,
He should write it because it’s the 21st century and he’s campaigning for office.
You are presenting a false duality between condemnation and remaining silent. I will settle for any piece that Mr. Chaffee would like to write that uses these two words: Kelly Thomas. Let’s not confuse the issue.
Doug Chaffee has been silent for 10 months while Fullerton craved leadership through a crisis. A silent leader is no leader at all.
I wasn’t there, so I don’t know, but: did this come up last Thursday at the LWV event?
Breaking it down:
(1) First case where an on-duty cop was charged: good! I think Cicinelli should be convicted. I don’t think that Ramos should or will be.
(2) Which cop wasn’t patrolling the streets? I vaguely remember that it was Cicinelli. If so, I can accept that call. I’d probably have taken Ramos off too. But what Ramos and Wolfe really needed were different instructions.
(3) No one at FPD would speak to Ron Thomas: frankly, that’s not surprising. I expect that this was due to legal advice. It sucks, but few lawyers would disagree with it. The lawyer is out to represent a client, not to be an impartial judge.
(4) Re Chaffee, do you mean “reached out to Ron Thomas”? While I think that reaching out to Ron Thomas would have been nice, Chaffee doesn’t represent the City (except on the Planning Commission, which is irrelevant) and people have been waiting for him to take steps that they could describe as politicizing tragedy. If he kept quiet, it maybe have been because he was damned if he did and damned if he didn’t. Do you think that Ron Thomas has suffered for Chaffee not reaching out to him? (If you mean that he didn’t reach out to “Kelly’s Army,” I can’t blame him.)
(5) I don’t know why he hasn’t “explained his silence,” though I’ve heard others speculate that he didn’t want to be seen as capitalizing politically on the tragedy. I don’t know if it’s true, but it’s plausible. (I don’t recall asking him about it.) You should ask him if you want to know. By the way, if there’s a script, I am not aware of it and don’t know what it says. Chaffee did tell me that he doesn’t read the blogs, but I don’t know what his reaction would be to what I’m writing here. This is my own perspective.
(6) I don’t see any evidence that Kelly had broken into cars. That sort of misinformation does come out, often exonerating cops, and it’s fair to ask for an investigation of why that charge was made. The explanation might be benign. If they were mistaken, then yes I think that they should apologize.
(7) If the police did suffer broken bones in apprehending him, then I don’t think that they should apologize for the truth. That fact does not actually imply that Kelly fought back violently, but that the process of apprehending him was dangerous.
(8) As to your letter: ask Vern, he’s the Editor-in-Chief (and I think he supports Rowe.)
(9) My angry retort was, as I recall (and I’m not rechecking it now), to your telling me “fuck you and fuck off.” Do you need much explanation for why I retorted that way?
HEADLINE:
ORANGE JUICE BLOGGER AND CHAFFEE APOLOGIST, DOES NOT THINK OFFICER RAMOS DESERVES TO BE CONVICTED
Mr. Diamond,
My point was exactly that you would be justified in almost any respond to my telling you to “f the f off” I feel poorly that you denied yourself the opportunity. After your Ramos comment I believe we have very little more to discuss, as I was looking to exchange thoughts with a human. I try not to argue outside of my own species.
Best
Stop the stupid stuff at the end, Steve. My problem in arguing with you about this is that you don’t seem to understand the problem of qualified immunity for police, which will be used in his defense. It doesn’t cover every wrongdoing by cops — I don’t think that it covers Cicinelli’s — but it does cover what Ramos did before Cicinelli showed up. It would probably be “politically wise” for me not to challenge your failure to understand the law, but as an attorney I see my role as explaining the law. And the first thing you should realize is that saying that something is not unlawful is different from saying that it is right.
Whether someone should be convicted depends on the law and the facts. It’s a different question from whether they did something wrong. Ramos did something wrong in rousting Kelly — and he did so because he was hired and ordered to do something wrong. The policy of driving off the homeless in the event of a complaint was wrong. He was just implementing it.
Now, if the policy was so horrific as to violate the constitution and such, he would have to not do it. But intimidating people into cooperation and moving the homeless out of an area — while I don’t like it — is pretty standard stuff for police. The “I was only following orders” defense works when we’re not talking about something heinous, such as Ramos’s actions before Cicinelli arrived.
Had Ramos intended to kill Kelly, or maim him, or to engage in any other overreaction that went beyond his authority as a cop, then yes he would be individually liable. But if all he was doing was implementing a rotten policy of finding any legally justifiable way of moving the homeless out of the area upon complaint — a policy that should not have existed, but did, and was not itself clearly illegal — then he’s covered by qualified immunity. That’s the law. It doesn’t make what he did right; it just gives him protection. I have some serious problems with some applications in the law, but I recognize that it’s the law and is a proper part of his defense.
I have a hard time arguing with someone about whether someone should be convicted with someone who does not understand the law of qualified immunity. I hope that you’ll try to learn about it.
“(1) First case where an on-duty cop was charged: good! I think Cicinelli should be convicted. I don’t think that Ramos should or will be.”
Wow…
I challenge you, GSR — please explain your understanding of the principle of qualified immunity for police. You’ll find a decent discussion on Wikipedia if you need it.
I don’t think that it protects Cicinelli. I do think that it protects Ramos.
You may think that one should not argue about whether someone should be convicted with an eye on the actual legal rules as issue. If so, just say so.
I challenge you to blog under 2,000 words!
You said you don’t think Ramos *should* be or will be convicted. You make distinctions between the law as it is (not as it should be) in other comments but make no distinction when you declare that Ramos shouldn’t be convicted.
I think Ramos should be convicted at the very least of involuntary manslaughter. Whether or not he will be, that’s up to an ever so flawed legal system.
Given present law, he should not be convicted.
What are the elements of the crime of involuntary manslaughter? Has he satisfied them? Does he not have any available defenses?
Sorry, but that’s how the law answers such questions.
“I disagree with McKinley about a lot of things, but I believe that he wants to see the city government run well, even if by someone with an opposing philosophy. That means wanting someone with Chaffee’s experience and understanding of the world as a lawyer — without which I think that the Council is more likely to face trouble.”
What are you trying to say here? If McKinley really wanted to see a city government run well why didn’t he do that himself when he has/had the chance? Why is he getting recalled instead? Integrity means alot in politics. McKinley at this point has none. He hasn’t done any good for this city and well, his words mean nothing after condoning that certain type of women is ok to get sexually assaulted at Women’s meeting in Brea. But that’s over. You are running for a seat and for you write this about McKinley, I question your integrity and why you would write this about someone who has none. And yeah, so what about what you have done thus far with the Occupy movement? After what you wrote about McKinley here, I am not so sure that your motives are pure to the heart of the Occupy movement.
What I mean is this: McKinley clearly disagrees with Chaffee about a lot of issues, but he believes that Chaffee will govern responsibly — as opposed to doing something like bankrupting the city or just slashing services to the level of Somalia. I think that he prefers the former.
As for his character, I think that the criticisms of him about sexual assault and about his actions as police chief seem well-placed.
If you explain your personal attack better, maybe I can address it. In the Occupy movement, I fight against repression of the type that Ramos and Wolfe engaged in. What I don’t do is pretend that it’s illegal when it isn’t — even though I believe that much of it should be.
Look, I am not trying to attack you personally(I apologize if it came out that way). I am not calling you names or judging you in any negative way. But you put yourself in the same boat with McKinley to support Chaffee. McKinley was never fit to be in the city council. Unfortunately, it took him to win to figure that out, but this recall is a course correction. For him to endorse anyone in this recall should be a curse not a blessing. He is a meme for an Epic Fail. For you to be in line with a guy like that is suspect which begs the question, do you really want the best cadidate to win?
I don’t see or heard from Chaffee that would make me believe that he would have done anything different than what Bankhead,Jones,McKinley did.
Community Policing? What does that mean anyways? A Zimmerman/Trayvon incident waiting to happen.
I think that, had he been on Council, Chaffee would have gone along with Quirk-Silva’s actions, who sounded the right notes, although maybe not as quickly. It’s a fair question to ask him, though.
I don’t make my decisions about who to support based on whether someone obnoxious does the same. McKinley disagrees with me (and I presume with Chaffee) over the first question in his race: whether or not he should be recalled. When it comes to him personally, that’s the crucial question. That he doesn’t want to see the City government dismantled if he loses is nice, but I still want him gone.