This Colorado Cop Is Learning a Lesson about Proportionality
Loveland, Colorado police officer Austin Hopp was sentenced this week to prison time for attacking an elderly woman with dementia in June 2020. After pleading guilty to second-degree assault and other crimes, Hopp reached a plea agreement with the county and was sentenced to five years in prison plus three years probation.
Hopp was “enforcing the law” when he threw victim Karen Garner to the ground, broke her arm, and dislocated her shoulder. The 80-pound, 73-year-old woman had allegedly attempted to walk out of a local Walmart with $13.88 worth of merchandise. When confronted, Garner left the merchandise in the store and walked home.
Hopp and his partner, Officer Daria Jalali, quickly caught up with Garner, who was picking wildflowers along the road. Hopp proceeded to assault Garner with the help of Jalali. [See video.] Hopp’s manhandling of the tiny woman was so aggressive that a local bystander even stopped—thinking Hopp was abusing a small child—and asked “do you have to use that much aggression?”
The sergeant on site, Philip Metzler, was quick to dismiss the bystanders’ concerns and shouted down the citizen, declaring Hopp “didn’t do anything wrong.” Metzler also invented a false narrative about how Garner “ran from the store” and “resisted arrest.”
Soon thereafter, Garner was taken to the local lockup where she was refused medical attention, even though she had a broken arm. While Garner while crying in pain in her holding cell, Hopp, Jalali, and Community Service Officer Tyler Blackett viewed the body cam footage from the incident. Video from the police station shows the three officers laughing and joking about Garner’s arrest and her broken arm. Hopp announced that he was “proud” and “super excited” that he had the opportunity to use hobble restraints on the elderly woman. Jalali and Hopp shared a fist bump over the arrest with Hopp declaring that the arrest “went great” and “we crushed it.”
But then nothing happened. As is so often the case with police assaults on members of the public, the leadership in the police department took no exception to Hopp’s assault or the fact that Garner was denied medical attention. The laugh-fest following Garner’s arrest was not seen as anything to worry about. Loveland's assistant chief of police Ray Butler, after viewing Hopp's video, concluded Hopp's felony assault was "necessary, reasonable, and within policy."
It was only in April of the following year that Garner’s daughter was finally able to get information on her mother’s violent arrest. Thanks to their skilled attorney, bodycam videos of the incident were made public, as was the video from the police station. Only after a public outcry over the contents of the video did the police department’s leadership take any significant action. Hopp, Jalali, and Metzler were given paid vacations—also known as “administrative leave”—pending investigation.
Hopp, Jalali, and Blackett finally resigned—i.e., were not fired—in late April. It was not until more than a year after the incident, in September 2021, that Metzler resigned. Metzler, of course, had signed off on Hopp’s report, and—according to Garner’s attorney—deliberately mislabeled his own bodycam files so as to hide evidence. The other sergeant that approved Hopp’s report, Sergeant Antolina Hill, remains employed by the department.
Now, nearly two years later—and certainly no thanks to the police department that employed and protected him—Austin Hopp is in prison. His partner Jalali is awaiting trial in June.
Do Police Understand the Concept of Proportionality?
But this leaves us with an important question: what sort of thinking convinces a police officer to conclude it is laudable, or even acceptable, to rough up an old lady in this manner?
We can already guess the narrative that the police were telling themselves, given the words of Metzler: in their minds, Garner was apparently a “criminal” who resisted arrest and ran from the scene of a crime. Perhaps in their minds, this exaggerated version of events justified breaking an old woman’s arm and throwing her in a jail cell.
Most reasonable people, however, understand there is a problem of proportionality here. Garner didn’t actually steal anything, but even if she had stolen something, was the proper response to beat her up? Moreover, in Garner’s case, the value of the goods she had in hand amounted to under 14 dollars. This must all be viewed in light of the basic premise of proportionality which is that “[T]here should be a proportion between the severity of the crime and the severity of the punishment.”
So, here we have a woman who had not actually stolen anything, but police were acting as if she were a hardened criminal, deserving of harsh treatment. Moreover, as Murray Rothbard was always careful to note, when a suspect is in the process of being apprehended, guilt has not even been determined yet. In other words, all force taken against a suspect may ultimately prove to be against a party who is completely innocent.
Thus, in the Garner case, we witness police breaking an old woman’s arm in a case where:
- Guilt has not been established.
- The suspect has not actually stolen anything.
- The suspect is a small elderly person and presents no threat to the community.
The public, on some level, understood all of this, which is likely why the public’s reaction to the police in Garner’s case was one of near-universal revulsion. Had Hopp arrested the local 200-pound ne’er-do-well in a similar fashion for stealing a pack of cigarettes, Hopp would almost certainly not be in prison today.
Reasonable people understand that not all cases of theft (or attempted theft) are created equal and do not call for the same response. Indeed, in many cases, proportionality and basic decency suggest no arrest at all is the most prudent course of action. Garner’s case is just such a case.
The "Arrest and Jail" Model for Minor Infractions Is a Modern, State-Centered Invention
“Law and order” types, however, often have problems understanding proportionality and the fact that arresting people is not necessarily the solution to every legal infraction. For many law-and-order advocates, even very minor infractions require forceful intervention, jailing, and arrest. Those suspects who don’t immediately and docilely submit to arrest? Those people—regardless of their alleged infraction—are “resisting arrest” and therefore must be made to comply by any means necessary.
As the Garner case has demonstrated, however, this is a ghoulish position and out of touch with the real world.
For example, in the case of Garner, how might the situation have been handled differently? It was apparent to any decent person—i.e., not the personnel of the Loveland Police Department—that it is would not have been appropriate to use violence against someone in Garner’s situation. For one, the supermarket could protect itself from Garner in the future by simply banning her from the premises. This is common in the case of shoplifters. If the police were hell bent on establishing Garner’s identity—and if she refused to provide a name—they could simply have followed her the additional half mile home. Then they could have issued a summons to appear in court.
This almost certainly would have been less time-consuming and costly than arresting the woman and putting her in jail. The summons approach definitely would have been less costly than the $3 million settlement paid out to the victim’s family in the Garner case.
Yet, we continue to hear from the “always comply” crowd that any minor infraction requires a response of overwhelming force followed by violent escalation. But what if Garner had somehow managed to get free of the police officer and was able to run away? If we believe that compliance is of paramount importance, then we must conclude that it would be justifiable to use all types of force, up and including deadly force, on people in Garner's situation. In other words, we end up supporting the idea that death is somehow a proportional "punishment" for petty (attempted) theft. Cleary, there is something very wrong with this position.
Moreover, from a public-policy view, police resources are wasted on cases such as these. If Loveland is like most communities of its size and demographics, there are many unsolved, never-prosecuted car thefts, assaults, and burglaries. Anyone who has been a victim of a burglary, for example, knows that the police do next to nothing in terms of finding stolen property. Police often lie that they "must enforce every law" but this is obviously not the case. Police choose each and every day how to distribute police resources and what crimes to investigate and address. This is reflected in the fact that police devote very few resources to homicides, but large amounts of resources to more lucrative and easy investigations of illegal drugs.
So why did two police officers and their sergeant decide to double down on arresting Karen Garner? Because it was the easy thing to do. Also, Garner presented no threat whatsoever to the personal safety of police officers. This made her an even easier target. Tracking down dangerous criminals, on the other hand, requires actual work and risk.
In the end, it would have been best to do nothing from the standpoint of police. If Walmart wanted to insist on punishing Garner somehow for her petty non-theft, Walmart could sue her in court. This, of course, would be the course of action recommended by Rothbard in his chapter on proportionality in The Ethics of Liberty. But even then, the penalty inflicted on Garner would still have to be proportional, since, as Rothbard notes
The victim [i.e., Walmart], then, has the right to exact punishment up to the proportional amount as determined by the extent of the crime, but he is also free either to allow the aggressor to buy his way out of punishment, or to forgive the aggressor partially or altogether. The proportionate level of punishment sets the right of the victim, the permissible upper bound of punishment; but how much or whether the victim decides to exercise that right is up to him.
In Garner's case, Walmart could pursue maybe 20 bucks for restitution for the time spent by store employees on reclaiming property from Garner. Or Walmart could simply decide it's not worth the trouble. Anything more than a few bucks restitution in this case is disproportional to the severity of the crime. A broken arm is beyond the pale of reasonable responses. On the other hand, a doctrinaire commitment to police-enforced “law and order” simply depends on an imaginary version of reality in which every minor infraction can be addressed through government intervention.
Such thinking is purely modern. Historically, prosecution for such offenses has generally been a matter of private civil law. The idea that police ought to be sent out to round up every low-grade thief is a product of big-government twentieth-century thinking, and it leads to a “cure worse than the disease.”
That was clearly the case in the Garner situation. Fortunately, the court recognized this, and Hopp will have a few years in a prison cell to help him understand. Let's hope his partner Jalali will soon have the same opportunity.