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Wednesday, May 18, 2005

The persecution of Lee and Kan, Part I

The new affirmative action: take black criminals out of jail, put law-abiding Asians in

Imagine Ward Churchill wielding the power of the prosecutor’s office. That is Peter Waite, district attorney for Santa Clara County California. He has been waging a racist prosecution against two Asian policemen from Palo Alto for the last two years, charging them with felony assault for subduing a black man who resisted arrest. Waite is grossly misapplying the law, and he is doing so for explicitly racist reasons. He insists that police officers are required to treat blacks differently than whites. The officers’ first trial just ended with a hung jury. Waite will likely re-file charges by the end of the month.

The following is a four part expose of Waite’s perfidy, posted back to front so that visitors can read straight through starting from here, as far as interest carries. (Links to Parts II, III, and IV.) The four part structure corresponds to the critical legal distinctions that arise, and to Waite’s efforts to keep them from being reached. Part I describes what the case is actually about if the law is correctly applied. A highly suspicious and belligerent person obstructed a police investigation and was arrested for obstruction. He then resisted the arrest, and was arrested for resisting.

District attorney Waite is misapplying the law to make the case about something else. He charges that the investigation should never have occurred in the first place. By focusing on issues prior to the arrest, and the resisting of arrest, he establishes legal issues that must be resolved before the heart of the case can be gotten to. As a result, the case is like an onion. I start at the core, so readers will know what the actual crime was, then work outwards, dispensing with Waite’s obfuscations one by one.

Not being a lawyer, I may not be the ideal person to be writing this, but I am who there is. For two years I have been writing about this case, and the blatantly racist Palo Alto politics that have enabled it. I believe that my research into the law and the relevant precedents is reasonably competent, but I am not trying to assert the final word. I am trying to light a fire. The perversions of the law in this case are absolutely shocking. The officers involved are being persecuted by an activist political machine that will pervert every principle to get its pound of flesh, and like Shylock, they are aiming for the heart. Don’t think they can’t win. In P.C. Palo Alto, they already HAVE won. This injustice needs to be exposed in order that it might be countered, not only for these two officers’ sake, but to secure the legal principles upon which we all depend.

The law
California has the same basic statues as other states. It has an “obstructing” statute (penal code section 148a) that makes it a crime to obstruct a peace officer in the performance of his duties, and it has an “arrest” statute (code section 836) which says that an officer must have “probable cause to believe that the person to be arrested has committed a public offense” before he is allowed to bring the person under control. These two statutes often work as a one-two punch. If a person obstructs a police investigation, he has committed an “obstructing” offense, which gives an officer grounds for arrest. Once arrest has commenced, if the arrestee resists the arrest, that adds a “resisting” charge (also under 148a).

The case
These fairly common circumstances—where a person who the police are investigating obstructs the investigation, and is arrested for obstruction—describe the California case in question. Palo Alto police had good reason to question the black man, one Albert Hopkins, who had been seen huddling down beneath the dashboard of his car at 10:30 PM in a neighborhood that had experienced a rash of burglaries. A scared woman flagged down the police cruiser of Palo Alto police officer Craig Lee to report Hopkins’ suspicious behavior, and an alarmed neighbor called 911 with the same alert. When officer Lee approached, Hopkins was immediately belligerent, cursing officer Lee for daring to question him and calling officer Lee a racist. Lee went back to his cruiser to check Hopkin’s license plate then re-approached to ask Hopkins if he had identification. In response, Hopkins lied, saying that he didn’t have a driver’s license. Hopkins then became physically aggressive, shoving the door of his car open at officer Lee and jumping out of the car, prompting officer Lee to order him back in.

When officer Michael Kan arrived, Hopkins changed his story, saying that he couldn’t find his driver’s license. The two officers decided they had enough to charge Hopkins with obstructing and ordered him out of his car. Hopkins refused. When the officers next thought they saw Hopkins fishing for something inside his car, they feared he might be reaching for a weapon and tried to pull him from his car. Hopkins then started fighting, yanking one of the officers into the car with him. The officers fought back, pulling Hopkins out of his car and using graduated force (pepper spray, then batons) to subdue him. [A good source of reporting on the case is The Palo Alto Weekly, here, here, here, here, here, here, and here. The San Francisco Chronicle and The San Jose Mercury News also have some coverage.]

Palo Alto
Officers Lee and Kan arrested Hopkins for obstructing a police investigation and for resisting his arrest on that obstruction charge, but local race activists (including much of Palo Alto’s politically correct political elite) immediately started screaming “racism” and the city immediately knuckled under, accepting Hopkins’ claim that “his only crime was sitting in a car while black.” Charges against Hopkins were dropped and Palo Alto officially declared fault by quickly paying Hopkins a quarter million dollars to settle his civil suit against the city for police brutality.

Waite should be disbarred
Palo Alto’s failure to prefer obstructing charges gave Santa Clara prosecutors the opening they needed to misrepresent the law. If Hopkins was not obstructing, then on what grounds were the officers arresting him? With obstructing out of the loop, District Attorney Waite pretended that the pre-condition for officers Lee and Kan to bring Hopkins under control was that they had to have reason to believe that he had committed some crime other than obstruction of a police investigation. Here is how The Palo Alto Weekly covered Waite’s statement on this point: “A legal detention requires the officers to believe Hopkins might have committed a specific crime, Waite argued. ‘If you ignore that fact, if you make it a mere technicality, why not shoot Hopkins in the head?’” (Yes, that is typical Peter-Waite speak.)

Waite also made clear that by a “specific crime,” he meant a crime Hopkins had been committing before he was engaged by the police. Again, as reported by the P.A. Weekly: “Waite shocked the courtroom by stating the beating Lee and Kan gave 59-year-old Albert Hopkins in 2003 was in some ways worse than the thrashing [Rodney] King received from a group of Los Angeles police officers in 1991. Unlike Hopkins, Waite argued, King committed a crime—drunk driving. ‘At least King deserved some of that beating,’ Waite said.” (id.)

Actually, a legal detention does NOT require “the officers to believe that Hopkins might have committed a specific crime.” As will be seen in Part II, they need reasonable suspicion that crime is afoot. They don't have to know the specific crime. Also, Rodney King was not beaten for drunk driving. He was beaten for resisting arrest, just as Hopkins was, and he did not “deserve” his beating, he warranted it, every bit of it, according to the first, un-cowed, King jury. But set all that aside. If Waite had stated explicitly that the “specific crime” the police are reacting to when they make an arrest has to be some crime that was committed before the police arrive, he could be disbarred. Making the same claim by referencing the crimes that Rodney King committed prior to obstructing and resisting is just a slippery way of doing the same thing.

Waite’s racism
Waite’s reasons for pursuing this grotesque misapplication of the law are explicitly racist. According to The San Francisco Chronicle: “Prosecutor Waite argued that police never had a legal justification to detain Hopkins and should have ended their ‘consensual’ questioning as soon as the man told them to stop hassling him because he was black.” It should make absolutely no difference what kind of racial smokescreen a legitimate object of investigation blows at the police. If I was hiding beneath the dashboard of my car and frightening women passersby, would the police have to stop questioning me if I said: “Stop hassling me because I’m white”? Of course not, and Waite agrees.

According to Waite, only blacks are exempt from questioning. In court, Waite urged the jury to disregard testimony by non-blacks. According to the Weekly’s court reporter, Waite “constantly insinuated the two concerned residents were acting due to their racial biases. ‘Palo Alto, it's the kind of place where citizens—as is their legal right to do—call in black people that are walking down the street or sitting in their car,’ Waite said in his opening statement.” i.e. The police should not treat citizen calls for investigation the same when blacks are involved.

Peter Waite is a flat-out flaming racist. He criminally misapplied the law for explicitly racist reasons. He tried to racially intimidate the jury by raising the prospect of Rodney-King type riots. He accused white witnesses of being inherently racist. Then he topped it all off by accusing the Asian jurors who stuck up for Kan and Lee of being racially motivated. How DARE they not be buffaloed by Waite’s racial demagoguery?

A new extension of affirmative action
Is the Bay Area’s large Asian community finally going to wake up and say “enough”? It is well understood by now that affirmative action in academia takes admission spots almost exclusively from Asians and gives them to blacks. Waite wants to take this a step further. Instead of Hopkins going to jail, the Bay Area’s affirmative action leftists want to put two law abiding Asian men there in his stead. If that isn’t enough to stir the Asian community to some kind of interest, I’m sure our left-wing race-bigots have plenty more in store.

End Part I. Links to Parts II, III and IV.

Must be great for police morale too.
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