Thursday, January 11, 2007

Should a Triage Mentality Apply to Civil Rights?

Last Monday, a class-action trial began in federal court alleging various civil rights violations of people who were arrested during the WTO protests in Seattle in 1999. Specifically, according to the plaintiffs, the issue is this:
[P]olice arrested about 200 demonstrators gathered in Westlake Park -- primarily for pedestrian interference and obstructing an officer -- without any individualized evidence that they had broken the law.

In pretrial proceedings before U.S. District Judge Marsha Pechman, the city recanted earlier testimony and admitted that the police didn't order the demonstrators to disperse before arresting them. Once they were in custody, police used a boilerplate, photocopied arrest record for everyone.

It always chaps my hide when violent protesters - or those who refuse to self-police their fellow protestors - whine about the violations of their rights. The rest of the people of the city, who actually work and contribute to the economy, could not get to work, suffered tremendous damage to their property, and in many cases, feared for their safety. I would love to see a class action suit from those folks against the professional protest groups who spearheaded the destruction.

(All of this property destruction and wasted tax dollars, I might add, in the name of restricting the ability of the Third World to join our prosperity by denying them the ability to engage in capitalism. American liberals love the myth of the Noble Savage, and will fight to preserve it - wishes and life expectancy of said "savages" not withstanding.)

But even if these particular people weren't breaking the law, should a different standard apply when a city is under siege? When large groups have broken into full scale riot, arson has been attempted and is being threatened, city and personal property is being destroyed, and the safety of innocent citizens city-wide is in question, should we be as strict with standards of probable cause as we would be with an individualized suspect at a routine traffic stop?

When a large disaster takes place which injures many people at once, acceptable standards of medical care change. Doctors in a triage situation make decisions they would never make even in an emergency room. They give up on certain patients who might otherwise be saved, they
provide the most cursory of diagnoses, and they don't bother with minor injuries that otherwise would be treated to prevent infection. We accept and understand this change of standards, because we understand the heightened danger, limited resources, and speed at which decisions must be made requires it.

The same thinking should apply to police responses when civil order has broken down, and the city faces immediate and direct threats to the safety of a city's property and citizenry. "Probable Cause" should encompass the situation - groups of protesters ignoring the police are more likely to break the law when wide-scale lawlessness brought about by their fellow protesters is already underway. We can't and shouldn't issue blank checks to riot police, but we need to be honest with the way riots and their participants work.

The price of not doing that is to allow riots to become even more violent, and indeed deadly. This is not idle conjecture, but exactly what happened in Seattle two years later when Mardi Gras revelry became violent, but the mayor and the police were afraid of "over reacting." The results were far worse riots (despite fewer people being involved), leaving one man dead. And I believe that Seattle's current rise in violent crime is directly related to a continuation of this failure to learn the right lessons from the WTO disaster.

In the meantime, the best way for hippy protesters to safeguard their rights - and ours as well - is to behave and police themselves. If civil disorder and property damage is threatened every time a rally takes place, then we'll start seeing some real encroachments on free speech and assembly. Licensing schemes will become more onerous, police will become less willing to hope for the best before they start swinging batons, city officials will face enormous incentive to lie, and an even wider swath of innocent bystanders will be impacted.

By using the circumstances of an arrest to more correctly define the law under which that arrest occurred, to include giving the police more leeway in times of emergency and large scale disorder, we will actually protect our rights. But if these protesters are successful in suckerpunching the city yet another time, this time with costly lawsuits, all of our freedoms will suffer.


Cato said...

I agree with a lot of what you have to say, and the triage analogy makes a certain amount of sense. However, I think you underestimate the difficulty of "self-policing" other groups of people when you're involved in a protest. There isn't any way when you're marching peacefully on one street to stop somebody throwing bricks through windows on another street. So if your theory is that marching in Seattle on the same day as somebody was smashing windows should afford you less protection from the police than marching in Seattle on a smash free day, I can't follow you there. Arresting peaceful protesters en masse shouldn't be an option for police. Arresting people for pedestrian offenses when there are masked men one street over destroying private property is a case of bad priorities. If the police aren't trained well enough to differentiate peaceful protesters from rioters, maybe they need more training.

ModMilq said...

Amen to Cato's comments. However, while the triage analogy sounds good, I don't agree that it makes sense. Docs never have the power of the state behind them when they make their life or death decisions, the police do and this access to state sanctioned force is why we should always be vigilent regarding their power

Orrin Johnson said...

Self policing may be difficult, but the Constitution makes no guarantee that exercising our rights should be easy. Self policing is not only possible, it is the single most effective way to ensure protests stay safe and legitimate (by which I mean demonstrations of speech, not extortion via the threat of mass violence). Who is in a better position to know in advance of the violent plans of anarchists but fellow protesters? Who is in the best position to report property damage to police? Who is in the best position to apply some peer pressure to would-be car flippers? And failing all of that, the "peaceful" protesters are in the best position to sense when things are about to turn ugly, and simply leave the scene.

So indeed there IS a way to stop that brick thrower if you're peacefully marching on the street. Call the cops. Confront the vandal, and ask others to confront him with you. If you don't have the courage to do either of those things, go home, or stay there in the first place. If you march in a modern day protest, these are the risks and responsibilities you assume.

It is manifestly unfair to demand that once anarchy breaks out, as it did in 1999, that police, whatever their level of training, should be expected to perfectly "differentiate peaceful protesters from rioters." On balance, when given the risk of wide scale property damage and risk to life and limb versus a night in jail before an arraignment, I'll take the later. So long as the situation is indeed one of chaos (a matter of fact for the jury), and the situation is not a pretext for suppression of political speech (also a matter for the jury), then the state should be given more leeway.

And moreover, it would be unjust to allow the instigators of the chaos, or even those who stood idly by while the chaos errupted, to be allowed to use that chaos as a way to escape prosecution. But that would be - and indeed has been - the result of city officials fearing exactly this type of lawsuits.

To portray these plaintiffs as individual protesters who had no nexus to the vandals and thugs "one block over" is simply not accurate. They had responsibility in the chaos, too. If they win this lawsuit, they will profit from their purposeful and foreseeable diversion of security forces at the expense of the people who lost the most that day - the taxpayers. The Constitution does not require such an outcome.

Orrin Johnson said...

MM, doctors absolutely have the power of the state behind them when they make life or death decisions, in matters of regulation especially, but also in terms of the heavily litigious medmal lawyers hanging over their every decision.

But in a triage situation, it is even MORE on point. Indeed, often the triage is coordiated through the very same people who are the defendants in this lawsuit. Emergency management coordinators, police, firefighters, etc. all coordinate these medical efforts in emergencies, which makes the doctors who arrive on the scene under state control. That means the people they allow to die who otherwise might be saved are failing to get what otherwise would be minimum standards of care due directly to the decision of a state official, acting with the power of and under authority of the State.

If we held triage doctors to the same legal standards (state action) that we would in a slow night in the ER, doctors would never agree to respond to a large scale disaster. For the exact same reasons, we have seen that when police are expected to act in a riot the same way they would during a traffic stop, cops and the city politicians refuse to act at all.

How ironic - anarchists getting closer to their goal of "anything goes" by abusing the mechanisms of government to scare public officials into paralysis.