San Francisco Police Officer Arrested In Scuffle With Other San Francisco Officers – By Wayne Johnson, Attorney


Last Friday, an off-duty Black San Francisco Police officer was arrested in a scuffle with three White San Francisco officers. The Black officer who has 15 years on the force was charged with battery and resisting police.

We do not have an official account of the events.  Maybe the real facts will be revealed later this week.  All we know is a Department whistle blower contacted the NACCP and reported the arrest to the NAACP.   The Public Relations officer for the City of San Francisco issued the White officers’ side.

According to the City of San Francisco, the White officers pulled the Black officer over and the vehicle had tinted windows and no license plates.  They also allege the officer did not have his identification.  Those are not serious crimes.  In fact, the tinted windows and the missing plates are infractions.  That means the officer may only have been given a fine or a fix it ticket.  I am sure he told the White officers at some point that he was a police officer, but they may not have believed him.  At some point during the detention the police discovered the Black officer had a firearm in his possession.  That is legal for a police officer.  The firearm was not a factor in the arrest.

According to the NAACP, this is a clear case of racial profiling.  They claim the White officers did not know the Black officer and the first thing the White Officers asked the plain clothes Black officer was if he was on parole.

The Black police officer allegedly took offense and a scuffle broke out.   The three White officers claimed they received scrapes and they arrested the Black officer, who hired a prominent Black attorney.  Nobody explained why he did this.  It could have been to protect his job or to fight criminal charges.  Maybe he wanted to sue his fellow officers.

First, did the Black police officer have a right to refuse to answer the question?   That depends on the terms of his employment.  As a regular citizen, under the Constitution, he has a Fifth Amendment right not to incriminate himself.  However, parolees must respond to the question.  This law has recently changed a bit.  Nowadays, you cannot simply remain silent.  You have to tell the police you are exercising your Fifth Amendment right not to incriminate yourself, or your silence may be taken as an admission of guilt.

Second, did the Black Police officer have to right to defend himself?  Well that depends on whether the White Officers employed excessive force.   In the back drop of that analysis we must determine whether the police had the authority to use any force.   If the person was not violating the law, then any force is unnecessary.  However, you are required to submit to an arrest even if you are innocent.  You can only defend yourself if excessive force is applied.  You do not have to submit to unnecessary injuries and you certainly do not have to surrender your life.

The bloggers all assume incorrectly that the police can just stop you and impose all sorts restrictions on the citizenry.   This is not Nazi Germany and the San Francisco police are not the Gestapo.   While it is dangerous to physically challenge the police, if the police take it too far and use too much force it can be something you feel obligated to do.

For all we know, the Black police officer could have had DMV sticker, and a driver’s license in his possession.  

Asking anyone regardless of race if he in on parole is highly offensive.  Asking a Black man if he is on parole is not just highly offensive, it is an example of racial prejudice.  It would be like asking women of a certain age if they ever worked as a prostitute or every gay appearing person when was the last time he visited a gay bathhouse. 

Assuming the practice is Constitutional, which it may not be, does not mean it is wise.  It is just lazy police work that came about as a result of the San Francisco police losing an appeal to a parolee for an unlawful search, and not discovering he was on parole until after they violated all of his rights.   They tried to justify the unlawful search after the fact.  They were unsuccessful in that case, so now they try to ask most people if they are on probation or parole when they make the initial stop.

We pay these police a lot of money to do investigative work, not to be lazy.  The police  should have asked the Black officer for his identification and ran a corpus check to see if the guy was on parole.  If he did not have his identification, maybe they could have tried to follow-up by calling the department.  In any event, they should have made the first question something other than “are you on parole?”  You do not have to be a jerk to do your job. 

Also, we act like institutionalized racism is dead.  It is not.  In New York where they use the infamous “stop and frisk,” a court ruled that in 90% of the cases that stop and frisk is used, the police were wrong in their hunch that criminal activity was afoot.  That says a  whole lot about police intuition.

Just because the police detain you does not mean you lose all of your Constitutional rights.  You still have a right to remain silent, to defend yourself when excessive force is used, and to exercise a host of other rights. 

Finally, just because you hire an attorney does not mean you are guilty or that you have something to hide.  Many people hire attorneys regardless of their guilt because they are not attorneys, and they don’t want to be railroaded.  Also, your words can be used as evidence against you in court to impeach you or incriminate you.  The words out of your attorney’s mouth cannot be used against you.  Always hire an attorney if you can obtain one.


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