Opening a can of whoop ass

Key question: "Why didn't you tell them you were cops?"

The "whoop ass" quote:

Purists would point out: The word is pronounced whup, not whoooop. This is from Judge Gainer's recent opinion, in which he ignored the blatantly illegal conduct of three Chicago police officers, setting them free:

QUOTE:

[The Prosecutor]: Judge, he [Officer Paul Powers] wants to open a can of whoop ass on our victims and their friends.

:UNQUOTE.

So that's what it's come to, eh?

In a court of law, a public prosecutor uses language like that and the judge says...nothing? Actually, a lot of people who should have said a lot more, didn't. Members of the press, that is.

The only reason I'm writing about this case is because no one else has...but should have.

Themes:

A local judge supports local law enforcement by means of a highly-suspect acquittal. I've lived in Chicago most of my life, so I am not surprised at this. I reserve my greater criticism for local media for failing miserably in their coverage of certain aspects of this trial. As far as the victims are concerned, all I can say is: I'm happy to learn they'd initiated a federal lawsuit against these officers.

One of the saddest truisms concerning our legal system: "It's far easier to get justice at the federal rather than at the local level."

The Acquittal

QUOTE:

A Chicago police sergeant and two officers were acquitted today in connection with the off-duty beating of several patrons at a West Loop bar in December 2006.

Following a bench trial several weeks ago, Circuit Judge Thomas V. Gainer Jr. found Sgt. Jeffery Planey and Officers Gregory Barnes and Paul Powers not guilty of aggravated battery charges in the attack at the Jefferson Tap and Grille.

:UNQUOTE [ article by April 28, 2009, Matthew Walberg, Chicago Tribune ]

Background:

On Dec. 15, 2006, after 3:30 a.m., there was the beginning of a physical confrontation between two groups in a bar. The first group: four young businessmen playing pool. The second group: six off-duty police officers, not in uniform, in another area of this bar. There were 10 video cameras on premises (inside and outside the bar), tapes from which were brought into evidence during this trial.

[NOTE: These cameras did not record any audio.]

The cops say they were verbally taunted, claiming one of the pool players called officer Powers a "pussy." Powers had been crying over the death of his father three months earlier.  This name-calling did not, however, immediately lead to an exchange of blows. Pushing and shoving ensued when another officer (who, by the way, had a gun in his hand) took it upon himself to interfere with the on-going pool game. He took balls from the table and deposited them into the table's pockets.

[As any pool player will tell you, that alone can cause a brawl.]

The pushing and shoving escalated to the point where the officers were taking some of the pool players down to the floor. Interestingly enough, none of this rough stuff led to any charges. The escalated physical activity (assault, leading to a pool player's broken nose) occurred in the vestibule, where there were no cameras, and on the front sidewalk.

[Side note: Did the cops, who were regular patrons of this bar, know where the cameras were and where they could get away with an unmonitored assault?]

The four businessmen claimed they were assaulted by these officers without any provocation or hint of an impending eruption. Prosecutor claimed these officers were looking for trouble and, without warning and not based on any prior interaction with the victims, decided to [as quoted above] "open a can of whoop ass."

Glaring omission in Judge's 30-page opinion

I read all 30 pages of Judge Gainer's opinion in this case, and was struck by one glaring oversight:

At no time during this gradually escalating encounter did any of the assailants identify himself as a cop.

If, as one of these plain clothes officers claimed, he was trying to defuse the rising tension between the two groups, he could have immediately chilled the situation by declaring himself (and his colleagues) to be cops while openly displaying his badge.

I'm especially amazed that the judge didn't ask: "Why didn't you simply tell the pool players you were cops?" This was a bench trial, not a jury trial, and the judge had latitude to bring this up himself. In fact, not declaring themselves as officers strongly supports the victims' claims that the cops were looking for trouble.

NOTE: Most of the officers looked big and burly, compared to the rather slightly built pool players. As a general rule, little guys don't go around taunting big guys - especially in a bar and especially not calling one of them a pussy.

The prosecution didn't jump on this issue - for instance, "Why were you trying to hide the fact that you were cops?" Perhaps prosecution did so during the trial, but I don't have those transcripts. Since this was a high profile case with news media in attendance, I'm confused by their silence on two counts:

• If this issue had been raised by prosecution or by anyone else during the trial, why was this fact not published?

• If this issue hadn't been raised at all, why was that oversight not included in any of the news stories?

In either event, this oversight is just another example of media not thinking. I'm sure H.L. Mencken would be spinning in his grave at the general incompetence displayed by members of the Fourth Estate these days.
 

More from the judge's decision

Some quotes and my responses:

QUOTE: The actions of the off-duty officers were in response to the fighting words, defined above, uttered by, more probably than not, [pool player] Adam Mastrucci.

RESPONSE: Couple of problems here:

• Even if the officers' claim were true [that the pool players called one of them a "pussy," with a gradually-increasing tirade of taunts and foul language following], it was clear from the testimony and videotaped evidence that these "fighting words" only gradually led to a brawl. Maybe there are "fighting words" that have a delayed-reaction aspect to them; just wondering. [Hmm...new legal concept here: delayed-reaction fighting words.]

• I thought police officers (especially veteran cops like these) had received extensive training on how to control themselves in the face of verbal abuse. If these cops engaged in what the Judge called "mutual combat" as a result of verbal abuse, then I highly question their professionalism (and, come to think of it, that of the Judge himself).

• "...more probably than not"??? The Judge needed something to justify cops acting badly, so he read something into the videotaped evidence (remember: no audio) to conclude that Mastrucci had uttered fighting words. However, none of the witnesses in the bar heard any such language from the pool players.

• The Fighting Words Doctrine: The Judge invoked this doctrine to protect the defendants, though he should have known that cops are expected to have a higher tolerance of verbal abuse. Also consider: "Tellingly, despite continued reaffirmation of the fighting-words doctrine, the [US] Supreme Court has declined to uphold any convictions for fighting words since Chaplinsky [v. New Hampshire (1942)." http://www.freedomforum.org/templates/document.asp?documentID=13718

QUOTE: [Sgt.] Planey was trying to calm the situation.

RESPONSE: Judge Gainer made much of Sgt. Planey's numerous efforts at being a peacemaker. However - a little reemphasis here - neither Planey nor any of the other cops had identified themselves as police officers at any time during this encounter. Also, the Judge totally ignored this bar's outside camera clearly showing Planey exiting the bar and storming up to one of the pool players (about 20 feet away), grabbing him, and then pushing him up against a wall. Maybe Planey didn't know about the street cam, therefore encouraging this extra bit of violence. I'm sure this particular footage will be played prominently at the upcoming federal trial.

QUOTE: He [Aaron Gilfand, having suffered a broken nose] is heard making a call about a lawyer the night of the incident. He contacted lawyers and refused to cooperate with OPS [Office of Professional Standards of the Chicago Police Department]. When he did cooperate, he only did so with his lawyers present. He has profited from one lawsuit and stands to profit from another.

RESPONSE: Gilfand had sued this bar and settled out of court. That apparently bothered Judge Gainer. Tell me, how is it that a judge allows himself to be influenced by the outcome of another lawsuit? Gainer is virtually accusatory in these remarks (for example): "He contacted lawyers" [How dare he!] "He refused to cooperate" [No crime in that, Judge.] "He only [cooperated] with his lawyers present." [Oh, that awful man!] "He has profited from one lawsuit and stands to profit from another." [If Gilfand wins his federal lawsuit, I hope that presiding judge will appropriately blast Judge Gainer for issuing such a flawed verdict.]

Aftermath of the trial

Judge Gainer should have found all three officers guilty of aggravated battery - and, in Sgt. Planey's case, of obstructing justice. However, conviction of this felony would have meant these three men would be ineligible to remain on the police force. Gainer, having been a prosecutor in the Cook County State's Attorneys office for 10 years, was undeniably sympathetic.

The Chicago Police Department wasted no time in reinstating these three officers. However, Top Cop Jody Weis had other options. He could have kept these men at a desk job for (say) a year, pending completion of anger management and sensitivity training. And as a form of cooling-off punishment. Weis should also have dressed them down for:

• carrying a gun (at least one officer in that bar had a gun in hand, as caught on tape) while drinking;

• failing to identify themselves as police officers, when the escalating situation clearly warranted such revelation;

• conduct unbecoming law enforcement officers

One consequence of this brawl will undoubtedly be an out-of-court settlement of the lawsuit pending in federal court. Chicago taxpayers will once again bear the cost of police brutality. [What? You don't think this case will actually go to trial, do you? Mayor Daley wants to avoid the additional publicity of a prolonged airing of these events before a far more neutral tribunal.]

This entire episode can and should become the subject of a made-for-TV dramatic reenactment. I'm especially interested in what the ten video cameras caught on tape. Sadly, only a few minutes of this footage is on line, though I'm sure more would help flesh out the scenario. This is about all I could find, though you should scroll down and watch both video clips: http://chicagocopwatch.org/tag/police-brutality/

Judge Gainer's 30-page written decision is at:

http://www.chicagotribune.com/news/chi-090428-tap-decision-pdf,0,3828680.htmlpage

Steven Searle was a candidate for U.S. President in 2008:

"If you truly believe in the rule of law, then cops who break the law should be convicted as easily as any other criminal" - Steve.

Founder of The Best Party Available

Contact me: bpa_cinc@yahoo.com

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