Is Resistance Futile?

Brett Hernandez, a San Francisco cop, was suspended for having unlawfully searched a guy who parked illegally.

On January 24, 2019, around 11 a.m., Ibrahim Nimer Shiheiber pulled up to the curb in front of a sandwich shop in the Inner Sunset to grab a Philly cheesesteak for lunch. He parked in a red zone with his tail end blocking a fire hydrant. Shiheiber put his hazards on and headed toward the shop.

At that moment, an SFPD cruiser pulled up and two officers jumped out. Officer Hernandez and a female officer named Jacqueline Hernandez, no relation, approached the then-30-year-old and turned on their body cameras.

The only justification for this search would have been a founded suspicion that Shiheiber was armed and presented a threat to officer safety, which would have justified a pat down. There was no basis to suspect he was armed, however, while Shiheiber was wrong about most of his assertions to the officers, that he wasn’t yparked” but “stopped,” he was right that they had no authority to touch him. And Hernandez did and was punished for it.

But what’s mostly curious about this encounter is that it escalated because Shiheiber was non-compliant and Hernandez paid him back for his “bad attitude.” What gave rise to to this resistance is unknown, but there are many on social media offering “advice” about what cops are allowed to do, what people’s rights are and how people should engage with police.

Perhaps Shiheiber preferred to assert his rights, or what he believed his rights to be, rather than get through the encounter as quickly and painlessly as possible. But in doing so, an otherwise banal encounter escalated into a search and seizure, with Shiheiber on the ground, shirt ripped and hip hurt. Was it worth it?

This raises an issue that was discussed by commenter Carlyle Moulton here at great length with regard to Greg Prickett’s post about the killing of Patrick Lyoya.

For a black man in the US running from the police is rational because if he/she fails to escape he/she may end up dead. Lyoya’s fate simply emphasises this.

While this may be substantively false, Carlyle raised another issue about the perception of a police stop in the minds of black men. There is a pervasive belief that a black man stopped by a cop is likely to be maimed or killed. Whether it’s believe to be a probability or merely a fair possibility, the point remains that when given a choice between what is perceived to be a very possible death sentence and the risk of flight, flight makes a lot more sense than sticking around to be shot and killed.

The responses to Carlyle’s point, made a few times at greater length, were unavailing. It may well be true had Lyoya not resisted and fled, he would be alive today, but that doesn’t address the perception raised by Carlyle. And it’s most certainly true that police killing a black man is an extremely unusual event, contrary to the widespread belief that cops are slaughtering black guys, or anybody, in the streets. This is not to minimize police abuse and needless violence, but to note that out of millions of police encounters, the probability of someone being killed is negligible.

What gives rise to this false belief that black men are better off resisting and fleeing from police than not for fear of being killed? The threat has been grossly exaggerated by activists for the obvious purpose of creating outrage and support for reform. This is understandable, as a nuanced approach to police violence is unlikely to be sufficiently outrageous to get many people worked up about it. It’s far more effective to turn every encounter into an outrage, create the appearance of constant brutality, to gain support.

But does this distortion of reality help or hurt? On the other hand, this hype may be causing people to react to police in a way they believe to be rational, but creates the very scenario they are trying to avoid by resisting and fleeing. This is the self-fulfilling prophesy problem, as the second sentence of Carlyle’s comment shows. Lyoya’s death shows that his fear of police was justified and his reaction was rational. Post hoc, ergo propter hoc.

The traditional legal advice is “comply now, grieve later.” The point is to survive the encounter as arguing or fighting with cops rarely does much good. Yes, there are limits to it, and there are horrible outlier stories, but for the vast majority of encounters, this approach has enabled everybody to make it home for dinner. Unless you’re hoping to be a cause célèbre, most people prefer not to be harmed.

There is, however, a fair argument to be made that this enables and encourages cops to exceed their authority, to believe that they are unconstrained by law and god-like in their power on the street. “Grieve later” hadn’t done much to fix the problem, and while police killings may be negligible, exceeding their authority is commonplace and rarely addressed.

The belief raised by Carlyle is certainly understandable, as this is what people hear constantly about police encounters. And if they’re on the good guy curve, what else would a person know but what he’s being constantly told? Then again, are the police to assume that a resisting, fleeing person is doing so because of a good faith belief that the police are likely to kill him or assume that he will cause the cop harm?

And if being obsequious to police is the most likely way to make it through an encounter without being harmed, are we being enablers of police misconduct? Is it necessary that we sacrifice our constitutional rights to make it through a police encounter unscathed? And of critical importance, are those hyping fear of police violence causing people to react in ways that makes it far more likely that black men will be harmed and killed because they believed their lies? Do black lives matter enough not to create a false belief that’s likely to get them killed?