A member of the Fort Lupton, Colorado Police Department was fired last month after she was found guilty of reckless endangerment and third-degree assault. Former Officer Jordan Steinke had arrested Yareni Rios-Gonzalez for suspected menacing and put her in the back of the patrol car of Platteville police officer Pablo Vasquez. Vasquez had parked his cruiser on railroad tracks. Moments later, the car was struck by a passing train with Rios-Gonzales inside. The victim—who has never been convicted of any crime related to the incident—and can thus be presumed innocent—suffered life-threatening injuries as a result. She barely survived.
The incident helps to illustrate the risks faced by suspects in custody when at the mercy of indifferent, incompetent, or hostile law enforcement officers.
The matter of police aggression toward persons already in handcuffs is also notable for being central to the George Floyd case. Floyd was subject to deadly force by police officers even though he was cuffed and posed little-to-no threat to the safety of officers or the public at large.
Indeed, we can point to many, many cases across the country of police assaulting persons who were in handcuffs. In most of these cases, police convicted of offenses receive slaps on the wrist such as job loss or probation. When lawsuits are pursued against the police officers or their respective departments, it is the taxpayers who pay the bill. Police attacks against handcuffed victims provide interesting case studies because they cannot be justified by the usual claims about the use of force by police. When law enforcement officers use violent tactics against others, it is often said this is justified because the officers were in danger of harm themselves, and thus acted in self-defense. These claims are often correct. In cases where suspects are already restrained, however, suspects do not pose a deadly threat to police and police assaults cannot be justified.
Unfortunately, protections for police such as qualified immunity and pro-police bias in law courts often prevents victims from receiving sufficient restitution from their attackers.
Murray Rothbard noted that the deck is already stacked against those who are taken into custody by police, and a legal double standard clearly exists. Rothbard writes:
The policeman who apprehends a criminal and arrests him, and the judicial and penal authorities who incarcerate him before trial and conviction—all should be subject to the universal law. In short, if they have committed an error and the defendant turns out to be innocent, then these authorities should be subjected to the same penalties as anyone else who kidnaps and incarcerates an innocent man.
In the Western world, the principal that government agents must be subject to the same law as everyone else is many centuries old. The reality faced by police, however, is something far different. Police can arrest, restrain, and imprison persons who have been convicted or no crime of offense. If police are wrong, and have imprisoned the wrong person, they rarely face any sanctions that an ordinary person would face for similar behavior. Rothbard goes on to note that in a truly just world, police
must observe the critical libertarian rule that no physical force may be used against anyone who has not been convicted as a criminal— otherwise, the users of such force, whether police or courts, would be themselves liable to be convicted as aggressors if it turned out that the person they had used force against was innocent of crime.
Of course, many will argue that this simply isn't practical and some suspected violent criminals must be detained until their guilt can be ascertained.
Even if we grant that claim for the sake of argument, we can see that depriving people of their freedom when they have yet to be convicted of anything is very serious business and offers many opportunities for abuse. Thus, one would think that taking non-convicts into custody—i.e., people still presumed innocent—requires the utmost care from police officers to preserve the health and safety of those who have been rendered unable to protect themselves or see to their own safety when in transit. Put another way, people in restraints have been deprived of exercising self-ownership and so it falls to the arresting officers to guarantee the suspects' safety.
Moreover, even those people in custody who are later found guilty of some offense must not abused while in custody. Punishments are to be dispensed by the law courts, not by arresting officers.
Unfortunately, many police officers don't see it that way.
On the matter of George Floyd, for example, Floyd already had his hands cuffed behind his back when police officer Derek Chauvin saw fit to kneel on his neck for several minutes. Why did Chauvin decide to use deadly force on a man already in restraints? This question was posed during Chauvin's trial to Minneapolis homicide lieutenant Richard Zimmerman, who is Minneapolis's longest-serving sworn officer. Zimmerman testified that Chauvin's use of deadly force on Floyd was "totally unnecessary" and that the use of deadly force would only be justified if the officers felt their lives were threatened by Floyd. Zimmerman testified it's hard to see how Chauvin could possibly come to this conclusion since the threat level posed by handcuffed suspects is very low. (Police Sergeant David Pleoger also testified that Chauvin used unnecessary force and violated policy by pinning Floyd on the ground.)
Chauvin's defenders naturally attempted to come up with excuses for Chauvin's incompetence and aggression. Although it has never been established that Floyd actually used a counterfeit twenty-dollar bill, some claimed that Floyd was arrested while stealing and thus—for some unexplained reason—deserved to have a man kneel on his neck while handcuffed. Others noted Floyd may have been on drugs, as if this was in any way relevant to the question of whether or not a police officer ought to be able to attack a handcuffed suspect.
The truth is that Chauvin likely assaulted Floyd simply because Floyd was being uncooperative and Chauvin felt Floyd was wasting Chauvin's time. We see this often. Suspects in handcuffs—i.e., people who have been convicted of no crime—have often been the target of police abuse because police grow impatient.
For example, police officers in Yuba City, California threw an elderly handcuffed man to the ground and paralyzed him because he wasn't complying fast enough to suit the short-fused police officers. In East Point, Georgia police shocked handcuffed Gregory Towns with a taser 14 times because he wasn't walking fast enough for police. In Clayton County, Georgia, a sheriff's deputy held a gun to a man's head while the man had his hands cuffed behind his back. The deputy wanted the man to comply with her orders more quickly. Officers in West Valley City, Utah shot and killed a man who was in handcuffs and detained inside a police station. Near Trinidad, Colorado, deputies barked conflicting orders at a handcuffed man who had parked in a place police didn't like. When the man couldn't figure out the deputies' incoherent demands, the police tased him in the face. Police in Castle Rock, Colorado allowed a police dog to attack a handcuffed man sitting on a curb. Police used a similar tactic in Alpharetta, Georgia.
Sometimes police abuse handcuffed suspects to extract information. In Roswell, Georgia, police locked a handcuffed 13-year old boy in the back of a police cruiser with the windows down in sub-freezing temperatures. The child wouldn't answer questions, so a police sergeant concluded "he's not going to say anything if he's warm." Police decided to freeze the boy until he talked.
These are all just cases that have been recently resolved, reported, or subject to legal proceedings. A longer timeline, of course, shows a long history of police abusing people in custody who are restrained and unarmed. These are also just the more egregious cases where police met with some level of legal accountability. Lesser cases often just bring acquittal or docked pay for abusive police. For example, when a Miami police officer kicked a handcuffed man in the head while he was lying on the pavement, the only punishment for the officer was a lost job. After an Atlanta police officer kicked a handcuffed woman in the head, he was fired but faced no legal consequences. Moreover, because most states protect officers from any personal liability due to "qualified immunity" laws, most legal settlements are extracted not from individual officers or police pension funds—as should be the case—but from taxpayer funds.
Yet, even when we recognize that policing can be a dangerous business and suspects are often unpredictable, how police treat people in custody is an indication of just how much police consider themselves to be above the law. It's one thing to react violently against armed and unrestrained suspects. That is often justified. It's something else entirely when police assault people who are on the ground with their hands cuffed behind their backs. Or, as in the case of Rio-Gonzales, the police may take away a person's freedom, but can't be bothered to ensure that person is not parked in the path of an oncoming train. Police are very good at taking advantage of the extra power and privileges that come with a gun and a badge. But they are apparently much less concerned with the added responsibilities and obligations that come with taking people into custody.
Rothbard was right that these abusers ought to be treated the same as any private citizen who attacks a person in handcuffs and is unable to defend himself. Police must be held personally liable for the harm they caused. Instead, under the status quo, these offending officers often enjoy free legal services from the police unions and can hide behind immunity laws. It's a two-tiered justice system, after all.