Or why isn't it a crime to use it or any other permanent-damage-causing tech in the first place.
Rubber/plastic bullets have cost how many eyes at this point?
There IS NO justification for LE to use this stuff, as their charter in the case of protests is about maintaining peace and de-escalating any confrontational violence that may occur.
The very notion of being a force confronting/opposed to protesters is WRONG, as they should be de-escalating things, and THIS is the greater issue.
LE is waging war upon protesters instead of providing security services.
The past week has shown that cops are absolutely willing to use injurious force without even the slightest shred of justification, and then lie badly about it. In such a situation, it’s not clear why a group of people that acts this way should be given any equipment at all, let alone the legal authority to use it based on their own word alone.
> The past week has shown that cops are absolutely willing to use injurious force without even the slightest shred of justification, and then lie badly about it.
But you just said you couldn't prove this above... Which is it?
You can’t prove a negative. You can however point out that no justification was given, or that the justification given was a blatant lie.
Given that we live in a constitutional republic that provides rights to all citizens, any use of force on them that lacks justification is therefore unjustified.
No, they said they could not prove themselves to have done nothing. I know those things feel equivalent, but they represent entirely opposite ends of perspective. In the scenario they have to prove themselves innocent, the cop needs provide no justification.
And even if they don’t have justification for use of force, unless if there’s a super narrow precedent showing they shouldn’t have, they’re immune from lawsuit. And since qualified immunity dismisses lots of cases, very few new precedents are being created. The total effect is that if you have a device created after QI was invented by the courts, you’re effectively totally immune.
The clause “without justification” in my original comment matters a lot, do not ignore it.
Cops might have the legal right to use force, but they must have clear justification for that application. Indiscriminate application of tools designed to injure people by the police should be a crime, but in practice it does not appear to be so.
In that case be prepared to defend the claim of it being without justification. Which if it truly is as clear cut as you're making it out to be, should not be a problem at all.
It’s rather disturbing that you expect that the citizens prove that the cops were unjustified in their application of force, rather than expecting cops justify their application of force.
Aside from reversing the burden of proof, I can’t prove a negative, such an attitude hands the police a carte Blanche to strip citizens of their rights until the citizens can argue for their rights back. This is not how functioning democracies are supposed to work.
This is just a misunderstanding of the burden of proof. If they are unjustified, then you should be able to prove that. Otherwise what you're talking about is the police having to prove their innocence. Exactly the kind of thing that you would complain about, if you hadn't gotten it all wrong.
IANAL, but I think you're misapplying presumption of innocence here. Essentially, there are two claims:
1. that the police used force at all
2. that the civilian on which force was used did something to justify it
For claim 1, the police absolutely have the presumption of innocence. But once they concede that they did use force, the burden of proof flips around. Otherwise, you're placing a presumption of guilt on the civilian by asking them to prove that they weren't threatening a cop.
This is essentially an affirmative defense [0]: it concedes the unlawful action (e.g. police use of force) but alleges a specific set of circumstances that would shield the person from repercussions. The burden of proof lies with the one using the affirmative defense.
Exactly. There is no claim that they did not throw the tear gas back, but in order for it to be self-defense they have to show that the police did something to justify it, as you laid out in #2.
You have it backwards. The police must show that they were justified in throwing the tear gas in the first place. The burden of proof lies on them to prove that force was justified.
I never said anything about self–defense. I am saying you are misunderstanding how the burden of proof and presumption of innocence works. Your original comment, referring to a police officer using force:
> If they are unjustified, then you should be able to prove that. Otherwise what you're talking about is the police having to prove their innocence.
If I allege that a police officer used force on me, they have the presumption of innocence. However, if they admit to using force, that presumption vanishes. We can assume they did it, because they just admitted to it!
The question then becomes whether or not that force was justified. In answering that question, the burden of proof shifts to them: I am presumed innocent of threatening them, and they must affirmatively prove that I did something to justify their use of force.
Edit: I never said anything about self–defense because your original comment was about the burden of proof for use of force by the police, not against them. You are moving the goalposts.
If I shoot my neighbor, it’s not up to my neighbor to prove that they didn’t deserve to be shot. It’s up to me to prove that I was justified in shooting my neighbor.
But for some reason the moment the police are involved, that presumption is reversed. Why?
What a strange change of subjects and wording. This response feels a bit disingenuous to me, but it’s interesting enough that I’ll bite.
Throwing tear gas back (important word) at the police when you feel it’s unjustified is an interesting question. Arguably such an act could be an act of self defense, but that gets very complicated when the police are involved.
What right do citizens have to defend themselves against what they feel is unlawful police violence? Against non-state actors, you have the right of self defense, obviously. Against state actors it is obviously complicated, since nominally they have a monopoly on the legal use of force, and we don’t want everyone with a valid warrant to feel justified in shooting at the police.
But to assume that there is no force that the state can apply that would not justify self defense is to accept a complete erosion of all civil liberties once the police are involved. Not all wrongs perpetuated by the police are amenable to court restitution; if you lose out on your right to peacefully assemble, then can a court give that back after the fact? What happens if the police apply lethal force without justification; you can’t sue to get your life back.
It is obvious that some right to self defense against state action exists, but exactly where the line is seems quite fuzzy to me.
While citizen's arrest is a thing, it does not automatically give you the right to detain someone. A use of force (as would be required to detain a subject) is often only legal to stop a direct felony from taking place.
Except in this case it's being used unlawfully on peaceful civilians, and the only reason there are no consequences is that the people using it are cops.
