Wednesday, December 24, 2008

My candidates for a presidential pardon: border agents Ramos and Compean

My candidates for a presidential pardon are border agents Ramos and Compean who are doing 11 years (in solitary) for firing on a fleeing suspect whom they had reasonable cause to believe represented a mortal danger to them — to wit:

The excuse for trying these border agents under the civil rights act was the Supreme Court decision taking away the discretion to shot a fleeing suspect if the officer is not certain the suspect had a gun — which the border agents were honest enough to admit.

But this ruling was in answer to the wide spread practice of the era to give the police officer complete discretion to shot any fleeing suspect. Up until 1968 it was the RULE in (liberal) New York State to shot to kill EVERY fleeing suspect after firing a warning shot (saw this practice enacted recently in a 1961 episode of the Naked City TV series).

But a MEXICAN (maybe not an Irishman — no kidding here) who abandons a van and violently assaults an officer to escape is 99.9% certain to be in fear of doing 20 years for major drug trafficking and just as certain to be carrying a gun (otherwise Mexicans, even coyotes, NEVER assault border agents — for those from parts of the country who are not familiar).

The totality of circumstances in the border guards case is not that of a 16 year old burglary suspect climbing over a fence with his back turned as in the high court precedent. There was no question of the mortal danger for the officers here — meaning the discretion to shot could not sensibly be denied — meaning there was no grounds for the civil rights case.

Precedents have to evolve in accordance with circumstances. Sufficient mortal danger to the officers = discretion to use deadly force cannot be categorically denied = no excuse to bring a civil rights charge.
Until 1968 the rule in (liberal) New York State was to fire a warning shot over the head of EVERY fleeing suspect and then, if he did not stop, shot to kill. I recently watched a fictional reenactment of this typical for the era policy on a 1961 Naked City TV rerun.

This easy shooting policy was the target of the US Supreme Court precedent (Tennessee v. Garner, 471 US 1, 1985) that protected fleeing suspects from indiscriminate shooting.

Believe it or not (I can hardly believe it myself but I was there and it was a big story) in 1968 New York State changed its deadly force rule to:
A police officer may not draw his gun even upon entering the scene of a reported armed robbery, even if the suspect has drawn his gun — unless — the suspect points his gun at the officer. Which new rule quickly got a police officer killed in Queens, New York; leading a quick legislative reversal.

If — when? — a border patrol agent gets killed because he or she was afraid to use deadly force because of what happened to Ramos and Compean then maybe their conviction will be reversed or pardoned. You should try to report as many close calls as possible to get them released first.

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