Wednesday, December 31, 2014

The Cop Conundrum

What with Ferguson, Eric Garner, and the assassinations of Liu and Ramos, we’ve certainly heard enough about the police this year...or have we?

There’s a problem here. We don’t really know, objectively, about the quality of America’s police forces or whether they use their authority generally within the parameters of the law. It’s becoming one of the most discussed subjects in the Commentariat, though the typical opinion-monger seems reluctant to come down firmly on one side or the other. Consider the following statement from our favorite Graybeard:

“On balance, though, I come down with the guys who say that most cops are not bad cops...”

Graybeard may be right, but he may be wrong – and there are institutional barriers that prevent anyone outside them from knowing which position is more accurate.

What is a policeman, in the American context of our time? He’s a municipal or state employee, protected by a powerful union and laws akin to those that protect civilian Civil Service employees, and effectively answerable only to his superiors in the police hierarchy. He’s been granted certain legal privileges – already we’re in murky waters – and a default presumption of justification regarding his uses of coercive force. He may have had some training in police procedure and the restrictions on his activities, though the smaller the district and its police force, the less certain that will be.

What does this policeman do? More to the point:

  • What must he do?
  • What may he do?
  • What must he not do?
...ex officio?

The “must” part has grown very slender. Recent Supreme Court decisions have decreed that, regardless of the prevalent conceptions, the police have no “duty to protect” and no “duty to intervene.” If you deem yourself to be in danger, the problem is yours, even if the police agree with your assessment. You can be in the midst of an actual criminal victimization, yet the police have no duty to intervene to stop it or to protect you, even if they can see it happening before their own eyes.

The “may” part has become very broad. For example, numerous court decisions have ruled that all a policeman needs to detain you is “reasonable suspicion” that you are or have been involved in a crime. What constitutes “reasonable suspicion” has proved remarkably flexible. A cop who wants to search your car can simply say “I smell marijuana,” and suddenly the most invasive imaginable search is “reasonable,” no matter what his original reason was for detaining you. Regardless of any and all circumstances, you are not allowed to refuse his “lawful order” – yet another serious departure from American norms.

The “must not” part has effectively vanished. State and local police forces have become quasi-military bodies. They’ve been equipped with large amounts of military-grade hardware that no private citizen would be permitted to own. They frequently stage violent intrusions and “no-knock” raids on private institutions and private homes. Most of the time, they have court authorizations for those activities...but often on suppositions that later prove to have been wrong, or based on testimony or “evidence” that was convenient but fictitious. Despite all that, courts have ruled that persons subjected to such treatment do not have a right to resist it – that any violence committed in the process of resistance will be held against the citizen, not the police.

To these eyes, it would appear that the incentives pertaining to police and policing have headed in the wrong direction, and are rather far down the road at that.

The incentives of power dictate that over time, power-positions will be filled by an increasing percentage of persons who love power more than all other things. The test of power resides in its use; if you’re not using it, you can’t be certain you possess it. That would suggest that, in the two centuries since the formation of municipal police forces, the percentage of persons in police forces who are there because they love power rather than justice or public service has risen steadily.

Still, even though incentives are important, justice demands that we address the actual behavior of American police. We cannot assume that because the incentives are perverse, therefore the typical cop is merely a thug with a badge. The problem here is that without the cooperation of governmental sources, including police departments, that have a natural interest in keeping us outside their walls, determining the justice and appropriateness of police behavior is next to impossible.

For example, we are told, though not by official sources, that 1089 civilians died at police hands during 2014. Semi-official sources tell us that from 2004 through 2013, an average of 55 policemen were killed each year in the performance of their duties. The ratio might be meaningful, but stripped of context we can’t be sure. Who was doing what to whom (and why) at the time of the death in question? Such details aren’t always available...and when they are, they’re seldom complete or ironclad.

The judicial system is also involved. Consider a “no-knock” raid in which one of the occupants of the house is killed by the police...but it later emerges that the police raided the wrong house. Exactly such things have happened in recent years. Were the intruders not police, that would constitute felony murder by the plain words of the law. However, cops are almost never held to account for such events. Judicial deference to the police is seldom punctured.

All that having been said, there are surely some cops who aren’t merely thugs with badges, just as there are surely some who are that and nothing else. Our problems include both detoxifying the incentives toward thuggish behavior under color of police authority and protecting good cops from being lumped in with their not-good colleagues in blue.

Much police misbehavior stems from bad law: the unConstitutional firearms laws, the anti-drug laws, and the many “laws” that prohibit or restrict various kinds of peaceful commerce. In such cases, it’s easy to dismiss the matter by saying the cops are “only doing their jobs.” In point of fact, police discretion is usually involved to a considerable extent. It’s almost always exercised in a fashion that favors authority...and those persons favored by the police and officialdom.

An example: Where I live, a permit is required to operate a roadside coffee truck. Also, sanitary codes apply to such trucks. Most operators stake out specific spots on particular thoroughfares. Over time, they become known to the police. Relationships develop. Some such operators are conceded something akin to property rights over the spots they habitually occupy. The police then harass others who might stake out positions they deem “too close” to their favored operators, repeatedly (sometimes several times a day) demanding to see permits, conducting “inspections,” and generally making it plainly visible to potential customers that this operator is “on the outs” with the police.

There is nothing even remotely legal about this. Yet it has become commonplace on Long Island. That a number of coffee-truck operators have family ties to the police is surely not a coincidence.

Bad laws create and intensify the incentives to bad behavior. That includes bad police behavior.

The problem is stiff. Americans are generally disposed to believe that much of the above is unavoidable, perhaps even desirable. The rise in allegations of police misbehavior has caused rancor and tumult, but is unlikely to bring about substantial legal, judicial, or procedural changes. No outcome is certain, but the probabilities incline in the direction of an intensification of the “us versus them” attitude about the police that’s become prevalent on both sides of the “blue wall.”

There is no Last Graf. Be watchful, and wary about developments in your locale. Record any suspicious incidents in as much detail as possible. Get to know the cops who regularly appear in your neighborhood personally; personal relationships are one of the few deterrents to abuse available to the private citizen. And stay tuned.

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