Friday, June 12, 2020

People v. Gerberding (App. Div. Sup. Ct. - June 12, 2020)

Talk about being unknowingly prescient . . . .

This opinion was issued on May 12, 2020.  But published decisions from the Appellate Division are invariably delayed for quite a bit before they actually get "published" by the Judicial Council, so it just came out today.  (You'll see why the date matters in a tiny bit.)

It's doctrinally a statutory interpretation case:  Does a particular Fresno municipal ordinance only prevent a "person" from blocking a sidewalk, or does it prevent a person from placing "property" that blocks the sidewalk as well?  The Appellate Division ultimately decides the former.

But that's not why I mention the case.

The facts involve a fairly common interaction, but one that's particularly timely.  There's a homeless person (Billy Gerberding) on the street, and the police get called.  Mr. Gerberding is with a couple of other people, and they've set up a shopping cart with a tarp on it and multiple pallets as their camp.  Their setup is in a high-traffic area in Fresno on Peach and Olive Avenues, with lots of shops and an apartment building nearby.  The shopping cart is missing one of its wheels, so it's not easy to move, and the whole thing is blocking the sidewalk.

So Fresno Police Office Omar Khan shows up, and tells Mr. Gerberding that he's got to move the cart since it's blocking the sidewalk.  But Mr. Gerberding says since one of the wheels is off, it can't be moved.  Officer Khan says it's still got to be moved, since it can't stay on the sidewalk, but tells Mr. Gerberding that they can store the thing for him for 90 days if he wants.  Mr. Gerberding's okay with that, and so is Officer Khan, but Officer Kahn tells him that certain stuff -- pets, food, and soiled clothes -- can't be stored since they're a health hazard, so those will have to be taken out.  But Mr. Gerberding's only okay with the entire thing being stored.

So we're at an impasse.  So Officer Khan tells Mr. Gerberding several times he's gotta move the cart or be arrested for blocking the sidewalk.  At which point Mr. Gerberding gets agitated and says he's being harassed.  A different police officer had told Mr. Gerberding to move the cart several hours before all this, so it's doubtful that this situation is going to be resolved any time soon.  Both sides seem locked into their position:  Mr. Gerberding won't or can't move the cart from the sidewalk, and Officer Khan wants/needs it moved.

At this point, Mr. Gerberding reiterates yet again that he's not going to move the cart, and starts to walk away.  At which point Officer Khan decides to arrest him, and tells him he's going to be under arrest for obstructing the sidewalk.  Officer Khan then teaches out for Mr. Gerberding to grab his left wrist to place him under arrest, and tells him to place both hands behind his back, and Mr. Gerberding becomes rigid and tense, and begins pulling away from the officer and begins to turn towards Officer Khan's right side, which makes Officer Khan nervous because that's the location of his gun.

Let me interrupt the story to say:  This does not end in Mr. Gerberding getting shot or killed.  I've read plenty of cases where all of the above is the introduction to a fatal or near-fatal injury.  But that doesn't happen here.  Thankfully.

But there's nonetheless a struggle.  Officer Khan is telling Mr. Gerberding to comply, but the latter continues to struggle and resist putting his hand behind his back to be handcuffed.  Officer Khan is getting pretty worried that he's losing control of the situation, so he calls for backup.  And during the struggle, as Mr. Gerberding is trying to twist away, Officer Khan sweeps his legs out from under him and they both go to the ground.  More struggles ensure on the ground, Mr. Gerberding is swearing at the officer and saying "Let me go" and that he doesn't want to go to jail, and ultimately Officer Khan pins Mr. Gerberding down on the ground and straddles him, pinning him there.

You get why all this rings a bell, right?  Someone is suspected of a very minor offense, the police get called, decide to arrest him, what begins innocuously turns into a physical struggle, and the suspect gets pinned to the ground by the police.  Happens all the time, of course.  But reading the details of this encounter, particularly now, definitely made me focus even more intently than usual on the facts.

But here's the part that sent chills up my spine:  The penultimate sentence of the statement of facts says:  "After Officer Khan swept appellant’s leg with his own left leg, and straddled him, he did not put his knee on appellant’s neck."

That "knee on the neck" part:  Wow. 

And, yes, I get it, the officer did not put his knee on the neck.  But in a way that makes it even more strange and prescient to include this sentence -- the killing of George Floyd and resulting controversy would not happen until two weeks after the opinion was written and published.  And yet we still talk about officers pinning a suspect down and placing (or, here, not placing) a knee on their neck.

For one thing, when we bother to mention that the police "didn't" put their knee on someone's neck in a particular setting, that suggests -- accurately, I think -- that the police might well (and do) put their knees on the neck of a suspect in analogous situations.  As well as perhaps indicate that we think that putting knees on necks is a fairly serious affair.

Regardless of what it shows, it's still something that definitely pops out at you when you're reading the thing.  How weird that you mention something that, just two weeks hence, would become (and remain) a central part of the major issue that confronts American democracy today.