Sunday, April 26, 2009

Should Blacks Act in Self Defense When Faced With an Electrocution Device in the Hands of a Police Officer?

Are there any circumstances under which a Black man has a right, derived in law or reason, to defend himself from a police officer who is armed with and threatening to use an electrocution device and intends to use it, regardless of the risk of death or serious injury, and before the intended victims has had the benefit of a trial or even an arraignment? Are police authorized to execute Black people on the street with hand-held portable electric chairs, or are they bound by the requirements of Due Process to see that Blacks defendants have the benefit of a trial before they are executed?

During the era of slavery in the United States, the US Supreme Court announced that "a Black man has no rights that a white man is bound to respect." Since Blacks during slavery had no right to self-defense under the law, and could not even testify in court against a white man as to the circumstances under which a Black man had defended himself from a white man, therefore it was a foregone conclusion that a Black man who defended himself from whites by use of force would be convicted of a crime, if not lynched on the spot. When Blacks did offer resistance to white force, they were brutally repressed.

In spite of that, there were always so called "bad niggers" who preferred to lose their lives in a fight than to lose their lives and their dignity in a failure to fight.


Today, US police officers are armed with what Amnesty International has deemed potential instruments of torture, whose use may result in death, particularly if that is what was intended in the first place. Of course, I'm referring to the police's portable hand-held electrocution devices.


We've all seen videotape of police officers sitting or kneeling on top of a Black man, who was handcuffed, while shocking him with a taser. Since the Black man was already immobilized, the use of the electrocution device -- often repeatedly -- constituted torture and arguably attempted murder, that can easily end in death, and sometimes does. Let there be no mistake: That which is called a "taser" is, in fact an electrocution device that, like the devices used in capital punishment, may have to be replied repeatedly in order for the victim to finally die.
If the Black man in that situation somehow gets hold of the officers' gun and shoots the officer dead, should the Black man be tried and convicted of murder, or exonerated because legitimate self-defense is a complete defense to a charge of murder?


I think the Black man should be exonerated by a jury and perhaps even be given an award if, as so often happens, the Black man had done nothing to provoke the police action in the first place, or the police response was with the intention or willingness to kill rather than to merely subdue and arrest.


Am I saying that there are circumstances under which a member of the public should shoot a police officer? Obviously there are! Let us imagine that a police officer is holding his wife and children hostage, threatening to kill his family and then himself. If a member of the public has a clear shot to prevent the deaths of the members of the police officer's family, should he nonetheless allow the police officer to proceed, simply because the officer is wearing a blue suit and a badge at the time?


No, defense of another has long been recognized as a defense to a charge of murder and police officers, like other human beings, sometimes do kill others in a way and under circumstances that constitute murder.
Let us imagine that the police officer's wife is somehow able to wrestle the gun away from him and shoot him dead. Has she committed a crime or defended herself from a crime that was about to be committed against her? The answer should be obvious, and the fact that the murderous husband happens to be a police officer ought not blind us to reason.


The de facto and only rarely rebuttable presumption in American society is that police officers are always acting lawfully, and therefore no one is within his rights to resist the force of a police officer. And yet, as a matter of fact, we know that many police officers exceed that which is necessary to do that which is unnecessary and reprehensible.


If the Black man in New York who had a billy club stuck up his rectum had somehow gotten hold of the police officer's weapon and shot the police officer dead, would that have been a legitimate self-defense? That would be something for a jury to decide after the the fact.


In fact, what is legitimate self-defense is always a matter for a jury to decide (except when judges refuse to allow defendants to offer evidence about the circumstances and refuse to allow juries to hear evidence that would support a claim of self defense). But many Black men, for failure to act in self-defense, do not live to see their cases go before a judge or jury, and that is a shame for which the Black man himself may be responsible. It is not our fault when we are the targets of color-aroused violence, but it is our responsibility to act to defend ourselves. Whether we have acted in legitimate self-defense is a matter for a judge and jury to decide.


When a Black person is not threatening police but nonetheless believes that the only way to save his own life is by an act of self-defense, I believe the Black man (woman or child) should defend himself, and let a jury subsequently decide whether he has done the right thing, particularly if the alternative is to be killed by police.
In the case of electrocution devices, I once believed that it was useless to study the so-called "use of force continuum", because the police who most violate Blacks' rights are those who least care about such guidance. But, now I perceive a possible use for such official guidance: If Black people are aware of the use of force continuum and conclude that the police have exceeded the force authorized under the circumstances, and/or that the police have demonstrated a willingness or intention to unlawfully kill a Black person rather than merely arrest them (electrocution devices, when used, often electrocute people), then that should certainly be a moment when a Black person (or any person) would consider acting in self-defense. The question will then arise whether the person has acted in legitimate self-defense. I believe that will be a question for a judge and/or jury to decide.


Perhaps, many judges would not permit a defendant to offer statistical evidence that the threatened use of an electrocution device was excessive force that triggered a right to self defense, precisely because the actual use of an electrocution often results in electrocution. Without having reviewed the case law and precedents, I believe that if judges do not allow a defendant to prove that he acted to save his own life (or the life of another), then that is a failure of jurispudence that needs to be addressed, and not a failure on the part of the self-defendant.
How should we behave if we see a police officer coming toward us with a stun gun pointed at us or at someone else? Of course it depends upon the circumstances, but we must consider at that moment the possibility that we may become victims of pre-trial execution. I believe there may be cases in which we are compelled to act in self-defense, and to let a jury decide if we have acted appropriately.
And what should we do if we see seven police officers sitting on top of a woman in the street, shocking her repeatedly with an electrocution device? Again, I believe that Blacks should act "in defense of another" and let a jury decide, if necessary, whether we have done the right thing. If we are fortunate, there will be a videotape to support our testimony, although it may not make any difference if the case is tried to an all-white jury. Nonetheless, we must defend ourselves whenever it is legitimate to do so, and put our faith in the legal system.
The justice system is stacked against Black people, with the very people most likely to be shocked with electrocution devices often lacking the financial wherewithal to mount an effective defense; with juries often all-white; and with all-white juries again presuming that the police are always right. In a state without the death penalty, it may be better to spend one's life in jail than to give one's life to Taser international, as so many Black men have been compelled to do.


And in a state with the death penalty, it may be preferable effectively to take one's torturer to the grave rather than to go there alone. The important thing is to defend oneself first and then, if necessary, let the jury decide.


To say that Blacks should always submit to police violence, no matter how exaggerated and intentionally lethal, is to take us back to the days of Dread Scott, when Blacks had no rights that a white man was bound to respect.

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