The 'Black Male Adult' on trial: The Constitution gets a beatdown

The ‘Black Male Adult’ on trial in Palo Alto

The Constitution gets a beatdown

by Junya

After attempting to focus on the “blue vs. black” question during jury selection, the trial of Asian-American Palo Alto police officers Michael Kan and Craig Lee for felony assault and misdemeanor battery began with both sides agreeing that the case is not about race or the victim: 60-year-old African-American Albert Hopkins.

Assistant District Attorney Peter Waite’s opening statement declared, “The prosecution represents the people, not Mr. Hopkins,” and that the case is not being tried as a “hate crime” for racial acts. He added, “You may not like Mr. Hopkins when he testifies ... he was angry, hostile, uncooperative, upset.”

On meeting Mr. Hopkins at a local cafe, I found he was indeed difficult to talk to: he is so popular that our conversation was repeatedly interrupted by smiles, hugs and handshakes with those passing by. Apparently, he’d earned notoriety from his 13 years as a neighborhood Little League coach.

Defense attorney Craig Brown, with the bluster and flushed face of an alcohol abuser, seems perfectly cast for his role as the Devil’s Advocate. Apparently unprepared for (or inattentive to) the prosecutor’s opening, he began with: “Whatever this case is about, it’s NOT about race ... (that’s) thrown out by the prosecutor to get you to look at something that played no role in these proceedings.”

While cross-examining Mr. Hopkins, Brown claimed that during the stop Lee responded to Mr. Hopkins’ complaint that the stop was racially motivated with: “That’s not why I’m doing it. I’m a person of color.” Mr. Hopkins absolutely rejected Brown’s claim.

In his opening, Brown challenged jurors: “Think of another city with two African-Americans on the City Council. ... For decades PAPD has been a model of diversity.” Brown may never realize that he’d just proudly confirmed the guiding principle of white supremacy: whites belong, others don’t. If allowed in, it’s only because of white tolerance of “diversity.”

With that out of the way, the trial got down to its real business: race and blaming the victim. That agenda ensured that the attack was not just on Mr. Hopkins, but also on the entire experience of all those caught in the never-ending U.S. dragnet for the “Black Male Adult.”

Brown immediately went to work on us: “Do you accept responsibility for what happened? You didn’t behave yourself. You have a problem accepting authority. All you had to do was what you were asked to do, and none of this would’ve happened.” Yes – he really said all that.

When Waite asked Mr. Hopkins: “Why not just tone it down?” he replied: “I was well within my rights.” Asserting your rights fits the profile of not just “an outspoken Black” (formerly known as “an uppity nigger”). It’s the same sentiment expressed in the statement: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety” made by an uppity Benjamin Franklin in 1759.

The rules of engagement between police and the public are circumscribed by the Fourth Amendment’s protection against unreasonable searches and seizures. This case concerns two types of encounters with police:

1. Consensual stop - Courts ruled police are not intruding “merely by approaching an individual on the street, identifying (themselves), and asking the individual questions.” Police are not required to show suspicion of criminal activity, and the individual does not have to stop or answer questions (and should confirm that the stop is consensual by asking “Am I free to go?”). The stop remains consensual so long as the individual voluntarily cooperates with police (generally a bad idea!).

2. Detention - The individual is not free to go, either because police explicitly said so or implied it by a “show of authority” or an application of physical force, however slight. Detention is only permitted upon “reasonable suspicion” based on “specific and articulable” facts, known to the officer at the time of the stop, that the individual has committed, or is about to commit, a crime. Being in a “high-crime” area is, by itself, not enough to establish reasonable suspicion but may be a relevant factor in the “totality of the circumstances” used to determine reasonable suspicion.

All agree that Mr. Hopkins firmly let police know they were not welcome, so there clearly was no consent. Yet, as Waite pointed out, “Lee continues to shine a flashlight in his (Hopkin’s) face and harass him.” But the defense claims that the denial of consent factored into Lee’s reasonable suspicions. Police routinely use this deceptive logic on the street, with the trick: “If you have nothing to hide, you’ll consent to talk.” Instead of seeking consent, they try to coerce.

Waite immediately dismissed one factor of suspicion, pointing out that the stop happened in “lovely, wealthy Palo Alto,” which is “not a high-crime area” but one with “people prone to calling in Black people as suspicious.” In Waite’s view, “Any competent officer, having no facts to detain him, will either find some facts, investigate or go away.”

Brown, in trying to establish “reasonable suspicion” instead painted a picture of mere “hunches”:

“There’s something about the location that struck him (Lee) as out of the ordinary. ... Is it a reason to detain? No. But it’s another piece. ... I’ve got a suspicion that there’s something odd going on that might have something to do with criminal activity ... when you take these factors, that conduct casts a suspicion ... adds to the totality of circumstances.” Based on that, Brown said Lee declared: “You’re being detained!”

At that point, we broke for lunch, wondering why the defense would say there was no reason to detain – and then, a few sentences later, claim the officer announced the detention. After lunch, Brown tried to undo his blunder by changing Lee’s announcement to “I need to talk to you!”

So, with no reason for a stop, Kan and Lee escalated the “seizure” of Mr. Hopkins: “(Kan) marched over and grabbed one of my hands. I pull it away – I’m startled – a knee-jerk reaction ... I stood up ... Kan pulled his billy club and struck me directly on my kneecap – the sound I can still hear.” Waite snaps out the baton in the menacing manner of a switchblade. Mr. Hopkins involuntarily chokes up.

“It was like I was being hit and I was looking on thinking, ‘I can’t believe this is happening’ ... Kan hitting me from the right and Lee hitting me from the left. ‘Why are you doing this? ... I recall, after being struck, thinking ‘These men are trying to hurt me’ ... I put my hands down to protect my body ... I did deflect some of the blows to the knees with my open hands ... Police took me to the hospital in handcuffs ... Eventually had knee surgery ... something had chipped off. (Since then) I’m dragging my leg, don’t do stairs too well. I can’t run fast, the range of motion is poor, in pain every day. It’s stabilizing – stabilizing in bad shape.”

The trial resumes 9 a.m. to 4:30 p.m. Monday through Thursday (closed March 31 for Cesar Chavez Day) in Superior Court at Department 42, the Hall of Justice, 190-200 West Hedding St., San Jose. Arguments are expected to end by April 7.

Email Junya at junya@headcity.com.