Yes, a police officer can escape some of the Constitution’s restrictions by convincing you to consent to his requests. The Fourth and Fifth Amendments, for example, give you the right to refuse to answer questions as well as the right not to have your car searched unless a cop has good reason to think you committed a specific crime. When you’re pulled over for running a red light and the cop asks to search your car or asks you to play the “follow the light with your eyes” game, and you consent to do so, you’ve waived those rights.
Although you can lose your rights when you consent to certain requests, a refusal to comply with a threat of force does not mean you’ve consented to whatever horrible beating comes next. My sheriff friend argued that it didn’t matter whether the pepper spray protesters were non-violent. Because they had refused a cop’s command, he claimed, the police had the right to escalate their use of force until the protesters complied. He challenged me to find “where in the Constitution it states that police cannot decide what force is lawful,” and cited the California Penal Code (sections 830-836) to show that “peace officers” have absolute discretion to determine what type of force is appropriate. This is a gross misunderstanding both of the Penal Code and the Constitution, and it’s dangerous that law enforcement officers are out there thinking they have this kind of discretion. They are not Judge Dredd, and they do not get to decide what force is “reasonable.”
Even the Penal Code itself, where it empowers officers to use force to make arrests, enables them only to use “reasonable” force to effect arrest, prevent escape or overcome resistance. (See California Penal Code section 835(a)). What is “reasonable” force does depend on the facts of an individual situation, but it is not up to the officer to decide; it’s up to a judge. And in the case of pepper spraying non-violent protesters, the judges have already spoken: it’s unreasonable.
Not only is it unreasonable, but it’s so manifestly unreasonable that every cop who pepper sprays a non-violent protester in the face can be held personally liable for the pain he inflicts on his victim. Most of the time, when a police officer gets out of line a little bit — when restraining a PCP maniac he accidentally twists his arm too hard and sprains it, or breaks a window while chasing a murder suspect into a house — the police department will indemnify him. The city (or UC) police department would pay for the officer’s attorney and would cover any money damages that the victim might win in a lawsuit. Our legal system immunizes the cops so that they can do their job without constant fear of getting sued for every accidental overreach (victims can still sue the police department, but not the cop himself). But when a cop’s conduct is obviously unreasonable, where there’s no objectively reasonable basis for what he did, the police department doesn’t have to back him up. He loses his immunity. His victim could win money from the police department, sure — but they could also win money from the cop himself, which the cop would have to pay out of his own pocket.
In fact, this already happened 10 years ago. In Headwaters Forest Defense v. County of Humboldt, the Ninth Circuit Court of Appeals — the federal appellate court whose interpretation of the Constitution binds the nine western states — held that using pepper spray on non-violent protesters is excessive force. Humboldt hippies had linked arms around trees and sat on the ground to stop a logging operation. Police got up close and pepper sprayed them in the face. The court found that pepper spraying hippies who’d linked arms around trees was excessive force, and so obviously excessive that the police involved were personally liable for hurting the protesters.
This means that if the UC Davis protesters had sued officers John Pike and Alex Lee, Pike and Lee would’ve had to pay the protesters out of their own pockets. And because Headwaters is quite clear that pepper-spraying non-violent protesters is unconstitutional, the protesters would’ve won. They should not have settled.
If the goal of the Occupy Movement was to use civil disobedience to push society towards equality, a brand new court decision expanding protections for protesters would’ve been a phenomenal tool. The pepper spray video is internationally infamous; there’s not a judge in the Ninth Circuit that would dare hold the pepper spraying to be “reasonable,” especially not in light of the Headwaters decision. Through published court decisions, judges can expand and contract our constitutional rights. This case was Occupy’s best chance to use the courts to expand them. I do understand why the protesters settled: The certainty and closure that settlement provides is often preferable to a lengthy court battle, and $30,000 does pay for a couple years of undergrad education (and nearly four months of law school!). And yet, if one’s goal is not pocket change but societal change, it’s worth waiting out the court battle to expand the Constitution for everyone.
Got a legal question you want answered? Email a former gubernatorial candidate, Sacramento attorney and UC Davis grad at firstname.lastname@example.org.