The Banality of Injustice

In Eichmann in Jerusalem, Hannah Arendt famously described Eichmann as embodying “the banality of evil.” I think of contemporary American life as embodying the banality of injustice, as witness the video below. Warning: it’s eighteen minutes long, and absolutely devoid of dramatic interest. That’s precisely what makes it an instance of the banality of injustice.

I took the video after work in the train station at Metropark, New Jersey near my office.  What it depicts is the detention and interrogation of a man who ultimately gets a ticket for disorderly conduct. The event is so mind-numbingly tedious that its significance might at first elude you. And yet the video is a paradigm of procedural injustice, one so boringly commonplace that we forget how obviously unjust it is.

Stops of this kind are called reasonable suspicion or Terry stops, after the case that legitimized them, Terry vs. Ohio. Under a Terry stop, a law enforcement officer can stop someone if the person’s actions give reasonable suspicion of the commission of a specific crime (or legal infraction under police jurisdiction). The suspicion has to be articulable, not a hunch; it has to be particular to the person stopped, not stereotyped; and it has to involve the elements of a specific crime rather than some vaguely conceived act of wrongdoing.

A key provision of a Terry stop is that the duration of the stop must be tailored to its rationale: a stop exists to confirm or disconfirm suspicion of criminality or legal infraction, and may only last as long as is reasonably necessary to do so. You can’t draw out a Terry stop gratuitously for its own sake or for the sake of amusing yourself, pretending that the stop is an instance of ordinary, friendly banter. Extending the stop beyond evidence of reasonable suspicion (or beyond the necessity to establish it) is a procedural violation, a kind of mini-kidnapping or theft of the time of the detained person.

That’s what happens here. The elements of disorderly conduct do not require extended inquiry. They certainly don’t require eighteen+ minutes of inquiry. They’re obvious. If you’re going to give someone a citation for this offense at all, you should be able to establish reasonable suspicion within less than a minute, and probable cause after another minute or two. These officers draw it out well beyond that. They were at it before I got there, and kept at it after I left.

The technique, known to anyone who’s been detained by the police, is to blur the distinction between a detention/interrogation on the one hand, and (forced) chit-chat on the other. Two or three officers surround a seated man, and oscillate between asking him questions to which they severely demand an answer, and bantering with him as though they were all best of friends. Is he free to go, or is he detained? He’s not told. Nor could a bystander simply walk up to the officers, ask the question, and expect an answer. Were the detainee himself to ask the question directly, the officers would have no legal obligation to tell him. If you have the patience to sit through it, you’ll hear the man ask why he’s stopped. He’s not given a straight answer until the citation is written, signed, and handed over to him.

For eighteen minutes, these officers play word games with a drunk guy. Where does he live? Where? It can’t be there. Didn’t he give a different address a few minutes ago? What is his name? Is it Peter Lewis or is it Peerless? Surely he said the former. Or was it the latter? Where is his ID?  Does he not have ID? Then what is his Social Security number? Could he announce it out loud for everyone in the train station to hear? What was that, again? 189-63-0128? The last digit was 8? Just to be clear: 189-63-0128, right? Where has he been before he got to the train station? The library? Doing what? Reading a book? What book? Oh, the newspaper. But the newspaper is not a book….

The detainee is drunk and agitated, probably mentally ill, and easy to tie up in knots. Eventually, he gets tangled in his own story (he’s no doubt lying about much of it) thereby incriminating himself in the offense of lying to a police officer. Have they provoked that offense and entrapped him in it? In the colloquial sense, yes. But legally, entrapment is generally available as a defense for federal offenses in federal court. No municipal court judge is going to listen to an entrapment defense for this encounter. No matter. No municipal court judge is likely to hear any defense for this encounter. That’s how things work in our subterranean police state.

The legal rule in this particular train station is that you’re only permitted to be in the station for two hours. Never mind that Amtrak trains are regularly hours late, and that Amtrak passengers are regularly obliged to spend hours in the station waiting for them. The point is, no “respectable” person violates the rule (in the relevant way), and so, no such person would ever be subjected to this kind of treatment.

Precisely for that reason, few respectable people have any idea how to handle a police detention or interrogation–or incentive to learn. You have “the right to remain silent,” as we all know. But should you exercise it? And what are the limits of that right? Does it have limits? Where does it apply, and where not? Most people have no idea. Even if they know, they lack the practice to use what little knowledge they have. If the average person faced the question more often, the answers would be more obvious. Because they don’t, they aren’t.

The banality of procedural ignorance is what abets the banality of procedural injustice. Of course, it’s only that until someone gets arrested, imprisoned, or shot. Then it gets serious. At that point, the banality isn’t just procedural any more.

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