Subject the Police Equally to the Law

Subject the Police Equally to the Law

 Because liberalism is often seen, particularly on the left, as enjoying ideological hegemony in the modern United States, there is an assumption that the current police system is a natural outgrowth of liberal ideas. Writing in Jacobin, Alex S. Vitale argues that “Liberals’ reform agenda stems from a belief that police are the legitimate mechanism for using force in the interests of the whole society,” and thus liberals “see [police] failings as individual missteps that can be rectified through disciplinary procedures or improvements to training and oversight,” a viewpoint that inhibits liberals’ ability to adequately conceive of alternatives to the current police system.  To an extent, this is accurate—liberals tend to believe that a professional law-enforcement body is likely to be fairer and more restrained than less formal mechanisms and the ad hoc armed bodies of citizens that police replaced. But the police institution as it exists in America today is incompatible with liberal values.

Anglophone liberals from Locke and Jefferson to Hayek and Rawls have held that a liberal societal order and stable social contract requires a fundamental level of equality before the law. An indispensable element of this ideal is that agents of the state are subject to the same legal system as every other citizen. Yet in the United States we now have a parallel system of law for police that only superficially resembles that used for civilians.  

Demands by American liberals that state agents be equally subject to law date back to the Revolution. In listing the complaints American colonists had against the British crown, the  Declaration of Independence includes 

For Quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

Notably, the most famous homicide committed by British troops (who were in fact performing police functions), the Boston Massacre, had been tried in a normal civilian court; most soldiers were found not guilty, while two were convicted of manslaughter and branded.  The idea that uniformed, armed men, charged with providing security, would be subject to a different set of judicial principles than anyone else ran entirely contrary to the principles of due process adhered to by most of the prominent liberals at the time.  

Nonetheless, that is effectively the situation that exists today.  While officers may be tried according to normal criminal laws, they have consistent advantages in the judicial system that make convictions uncommon and thus minimize accountability: Officers are rarely charged by district attorneys, and juries often give them far more leeway to claim self-defense in order to avoid convictions.  The soldiers in the Boston Massacre were actively being pelted with rocks and threatened with clubs; by contrast, officers in the US have successfully claimed self-defense against completely unarmed persons in their underwear and those apparently following every police order as well as can be expected.

In some cases, this is the result of institutional, unwritten factors in the law—the reticence of district attorneys to antagonize the police they work with, or the greater level of trust juries have in police than in potential witnesses against them.  Another factor are court decisions, particularly Graham v. Connor in 1989, that hold that the reasonable standard for assessing when police can use force is different than the standard applied to civilians. In Graham, the court held that 

The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

Holding that a reasonable officer is different from a reasonable person is a dangerous practice from a liberal perspective. On the one hand, if we expect officers to uphold standards of order and safety, perhaps it is necessary to give them some leeway in how they enforce the law. However, this should necessarily be met with skepticism. After all, the very idea of having two standards for reasonableness, one for agents of the state and one for citizens, runs counter to the idea of equality under the law. A prudent liberal should hold such a practice up to scrutiny: isn’t it the case that most genuine self-defense cases involve split-second decisions about the use of force? Certainly, police face such decisions more frequently, but this greater experience as well as specific training would seem to indicate that they should have a more, not less, precise understanding of what force is needed in a given split second. Moreover, a police officer is more likely than a civilian to be, in a given moment, wearing body armor and in the presence of other officers ready to render aid. Surely a situation that a reasonable civilian would not find to constitute deadly force is even less likely to be fatal for a police officer. Finally, if ‘split-second decision making’ is the justification for granting leeway to police, then there should be evidence required in every case that circumstances did force a genuinely split-second decision. Surely no case where a fleeing suspect is shot in the back could yield such evidence. But experience tells us that evidence-free handwaving in the direction of ‘split seconds’ is most often all that is needed to keep justice at bay. And so the two-standards practice is pernicious and has been disastrous, leading to numerous questionable deaths of individuals who were unarmed or armed with less dangerous weapons, killings which cannot be effectively prosecuted and thus continue unabated.

Liberals of good faith can argue about the necessity of carving out exceptions in law for police forces—due process and a preference for acquitting the guilty over convicting the innocent are also key liberal values. The question will almost certainly hinge on different views on the necessity of armed police and their importance in maintaining a safe society. There is no such ambiguity about ‘Law Enforcement Officers’ Bills of Rights’ passed by many states.  These laws effectively work to make it more difficult to hold officers to disciplinary standards within their departments.  As Mike Riggs explains in Reason, these bills, adopted in many states recently at the center of police controversy, such as Minnesota and California, police are granted special privileges when being investigated for wrongdoing.  Some of these privileges—such as limitations on aggressive interrogations, requirements that questioning be held at reasonable hours, and the like—should probably be extended to all suspects.  Other rules, like those preventing investigators from threatening discipline during the investigation, seem designed specifically to make investigations ineffectual.  In any event, the idea of extended particular rights to police forces subject to disciplinary action that are not granted to citizens facing criminal penalties is a wholesale abandonment of the liberal ideal of equality under the law.  While due process in a work environment is generally hailed as a positive for workers’ rights, in the case of agents the state, that calculation changes. Allowing armed agents of the state, who are already granted both official and unofficial protections for criminal prosecution, additional protection from disciplinary action is a recipe for illiberalism.  As Riggs notes, this also generally means that only a successful prosecution for wrongdoing can actually cost an officer their job, making the difficulty in prosecuting officers all the more dangerous.

 Two particularly egregious examples stand out—the first is that of Philip Brailsford, who was acquitted of killing unarmed suspect Daniel Shaver in a highly controversial case.  Video of the case was released, though not shown to the jury, showing Shaver on his hands and knees while being shot.  At very least, Brailsford’s service weapon violated Mesa Police Department policies, as the officer had written ‘You’re Fucked’ on the dust cover.  Even if homicide could not be proven beyond a reasonable doubt, there is no question that Brailsford’s actions and lack of judgment damaged the reputation of the department and inhibited its ability to continue to perform its duties.  However, after being acquitted, Brailsford was rehired for a month so that he could quit with benefits.  

A second involves a Snohomish County deputy—the only officer prosecuted under Washington’s use of force rules between 1986 and 2018, when they were changed.  Having pinned the vehicle of a drunk driver, deputy Art Wallin jumped onto the hood of the car and fired multiple shots through the windshield, killing the unarmed driver. A jury did not find him guilty, and although the department’s own investigation had found that his shooting was unjustified, he was rehired by the sheriff’s department, where as of January he continued to be employed. Like the Brailsford case, this one shows the extreme difficulty in getting violent police off the force and imposing even internal consequences for the worst behavior.  

Given the difficulty of criminal prosecution, and the inability of departments to use disciplinary action effectively to remove dangerous officers, civil cases grow in importance.  However, here as well there are obstacles.  The practice of granting ‘qualified immunity’ to police as agents of the state would be abhorrent to liberals who were so focused on weakening the tyrannical power of such individuals. During reconstruction following the Civil War, it became impossible to ignore the role of state actors in thwarting efforts by the Federal government to secure a modicum of equal rights for all.  As a result, the Civil Rights Act of 1871 included the following language:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

A plain reading of the text makes it difficult to imagine how police would not be subject to civil suits when by their actions they deprive individuals of their constitutional rights. However, the courts have repeatedly ruled exactly that—that police are only liable for violating constitutional protections if, as one court found,  “every reasonable official would have known that those facts would ‘beyond debate’ establish excessive force.” 

The standard—‘every reasonable official’ and ‘beyond debate’—could hardly be better worded to make successful litigation impossible.  More than simply shielding any action that is questionable, it also inhibits the creation of new precedents. By refusing to allow new suits outside of certain established scenarios, courts hamstring the ability of plaintiffs to use civil rights suits to set reliable precedent, creating a catch-22: cases too far outside what has already been decided will not be heard; as a result, those situations will remain ‘open for debate’ and thus not actionable, in essence freezing our understandings of constitutional rights.  

In three distinct ways, then, police are effectively granted a parallel system of criminal and civil justice as well as professional discipline. On its face, these parallel systems violate the principle of ‘equality before the law’ that is so treasured by liberals. Only highly compelling experiential results could justify such a departure from liberal theory; the results of our extended experiment with relatively unconstrained policing are anything but convincing.  

The predictable result, which is inevitable until true equality before the law is achieved, is a rupturing of the social contract between the state, its police, and the citizenry, particularly those who have been marginalized. This rupture is predictable under a liberal understanding of society.  The argument that police must be unconstrained in their exercise of law, to ‘maintain order’ or provide a ‘thin blue line’ between society and chaos, seems to run very much like the absurd argument Locke ascribed to supporters of absolutism: “Betwixt subject and subject, they will grant, there must be measures, laws, and judges for their mutual peace and security. But as for the ruler, he ought to be absolute, and is above all such circumstances; because he has a power to do more hurt and wrong, it is right when he does it.” Certainly, if a civilian held a man in a chokehold until he died, that would be murder. Without a doubt, if a civilian burst into someone’s home and initiated a fatal gunfight, the guilt would rest unquestionably on them.  A civilian has no right to shove a man to the ground for the mere crime of being in his way—‘right of way’ notwithstanding. But when an officer commits these acts, too often we hear “because he has a power to do more hurt and wrong, it is right when he does it.” As we have seen in the past weeks, the effect of this difference in standards for police creates the same effect Locke identified with absolute rulers—they are “made licentious by impunity.”  

Indeed, Locke and almost any classical liberal would likely observe that we have created an institution so large and so powerful that no matter what it does, it will find myriad defenders convinced that the only that institution stands between themselves and a life nasty, brutish, and short.  But Locke explains with perfect clarity what happens when one group is considered above the law: “[W]hen [people] perceive that any man, in what station soever, is out of the bounds of the civil society they are of, and that they have no appeal, on earth, against any harm they may receive from him, they are apt to think themselves in the state of Nature, in respect of him whom they find to be so” For too long, many Americans, particularly people of color, have been subject to a police force who seems outside the rules that govern the rest of civil society.  Seen this way, it is only reasonable that a ‘state of nature’—that is, where physical force is the only deterrent to harm—should exist between police and marginalized people.  A community that saw a police officer acquitted of killing Philando Castile cannot help but perceive that they have no recourse in the current state of things but to burn down a police precinct when they witness a comparable crime; their recourse has been cut off.  

And this impression has spread beyond traditionally marginalized communities.  While broad majorities of Americans oppose looting that accompanied some Black Lives Matter protests, according to one poll 54 percent felt that burning of a police building in Minneapolis was either completely or partially justified.  While the current focus of police reform is, appropriately, on racial injustices in policing, numbers like that one indicate that a substantial number of white Americans also feel that the current policing system is unacceptable, and are increasingly turning to or at least accepting Locke’s description of what happens next—a breakdown in respect for the unfair social contract.  

Radical viewpoints on policing—anarchist, post-colonial, and other critiques of the very practice of policing itself—may have much to offer in addressing how to reform our current police system. However, it is not necessary to embrace such perspectives to understand the urgent need for reform: the status quo with regard to police discipline, criminal and civil law is already fundamentally at odds with centuries of liberal thought regarding equality and liberty.    

Featured Image is Police State, by Kate Sheets