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.


Dan said...

All true. And since power most certainly corrupts those who have it seek to maintain it. One method of maintaining a grip on power is the use of violence by state sponsored agents......LEO. And since it is contrary to the agenda to have such agents question whether such violence is legal or appropriate the selection standards and training are altered to screen FOR bully's and sociopaths rather than against. Such types are more amenable to engaging in violence against others without the burden of wondering if such acts are actually appropriate.

Once you have polluted the system with such types, the proverbial "bad apples", any members who do not "go along with the program" become outsiders. Such outsiders are quickly and effectively marginalized, neutralized and removed from the system. In short there are no more "good cops" because the system has evolved and mutated into one where a "good cop" simply cannot function effectively and is often at Persian risk from the system.

The methodology used to create the current system in America is not far removed from that which created a system that made the Holocaust possible. And if our society does not take control of the states armed enforcers back and soon another "holocaust" is not just possible but inevitable. Waco was just a small preview of coming attractions.

Anonymous said...

Are we not seeing 'trickle' down corruption in action? We see it at the top and we've come to expect it, cops have become an extension for the survival of the corrupt and failing state. 'To protect and serve', is not meant for the citizen it's meant to protect and serve the politician and the system.

I didn't need a Ferguson or Garner to prove what I already know. The system is collapsing at all levels. I hope it gets better, but hope is not a plan.

Unknown said...

I think you're exactly right Fran - but compounding the problem you describe is the explosion of "police forces". Every three letter agency (FBI, ATF, EPA, etc) and even universities have "police forces". We've even subcontracted law enforcement to private companies with Red-light cameras, Speeding cameras, and speedy-pass (toll-enforcement) cameras. A proverbial police-state.
- Bob

SiGraybeard said...

First, thanks for the reference, Fran.

There are way too many variables here for me to come to one simple conclusion. For one, I strongly suspect the situation is vastly different here in small-town, flyover country than in the big, perpetually blue enclaves of NYC, Milwaukee, Chicago and so on.

It's a truism, though, that a police state isn't a characteristic of the police, it's a characteristic of the state. I try to separate out bad law and overuse of SWAT teams from the consideration of general good/bad cop dynamics because those are straight up bad law, or police state problems. The example you have of the food trucks and cops acting as local muscle for them (I assume in exchange for food or other favors) is case in point. It's petty corruption that should be shut down in any jurisdiction. The fact that it isn't shut down says the whole political base of the city is corrupt. I'm sure you're surprised, right? (Long Island corrupt? This is my shocked face.)

The police state is the bad laws, the explosive promulgation of new laws (we all commit three federal felonies a day, right?) and the selective enforcement of those laws which must follow. Read Victor Davis Hansen's stories about California as two states: a gentrified coastal state and the third-world, inner-valley state. Police don't bother to enforce laws uniformly in the central valley: there's no revenue to collect. The police state enforces laws on central valley property owners and not the indigents stealing the property owners' copper wires or water pumps or whatever.

I think one of the best ways of thinking of police states in a graphic I stole for my blog (not the post so much as the graphic), where "Philosoraptor" says, "If we need government to control bad people, wouldn't bad people join the government to control people?"

While I can't dispute the numbers you cite from, nor do I want to, or the things reported on there are immediate and obvious sampling problems. They're places where bad behavior is reported. There is no such equivalent place where people report good behavior and cops going out of their way to do the right thing, or things they're not required to do (there are a few isolated news reports if you watch Right Wing News).

In an overall sense, you and I are probably over 95% in agreement. My point wasn't really the good cop/bad cop story, it was how the left and ISIS are doing exactly the same thing. The left in the US has been indoctrinating kids to see cops as non-humans that want to kill blacks as a way to create a culture that has no remorse for killing "the other" - the cops. ISIS is indoctrinating children to believe that Christians and all non-ISIS Muslims deserve to die, in order to create a culture that has no remorse for killing "the other" - you and I. In both cases, some bad history is surely coming.

Anonymous said...

There are undoubtedly bad apples, but I agree with the statement above that a police state is more a condition of the state, rather than police on-the-whole.

I only have a minute, but I wanted to throw out that I have a buddy who is a Chicago cop. He is a good man, and a good cop. I don't know all the details of his daily work, but I do know that I constantly hear about the trash he has to deal with, and the dangers he has to face in so doing. There are a lot of LEOs in the USA, and most of them are good people, who only want to do their job and go home to their families. There ARE the bad apples, and hopefully they will be dealt with accordingly. And of course, there are the corrupt organizations, where the bad actions come as a sort of unwritten dictate from above. Hopefully these will also be dealt with in due time.

Many of us have taken on the responsibility of protecting ourselves and our families, and this is an admirable and righteous path. But we have the cops to generally be thankful to, for limiting the amount of hands-on, violent-force protecting that we need to provide. For this, I AM thankful, and while I long for a return to the freedoms and individual liberty of yesteryear, I recognize that the police are generally a force for good, and should be thanked for the job they do on our behalf. For the bad apples, be vigilant, and work towards their expulsion from the ranks of the honorable.

Dan said...

The statement that a police state is a condition of the state is probably a fundamental truth. But a police state does not want enforcers who think or who question the need for their actions, who hesitate to impose authority. The police state wants hired muscle whom will do as they are told.
In short the police state wants cops who will engage in conduct that from the perspective of the citizen is evil conduct. In short the state wants BAD COPS....and that is what we have because that is what those in power want.

Reg T said...

As Dan @8:55 said, the State wants cops who are _Law Enforcement_ officers, not "peace keepers". As I mentioned in a comment to Graybeard's post on cops, today's academies appear to be forcing that meme in their training. Worse, they seem to be hiring the type of individual who loves to exert his power, his authority. When I left law enforcement in 1995, it was already swinging that way, and I believe it has only gotten worse since then.

As far as I can tell, never, in our current State, is the difference between mala per se and mala prohibitum taught. The difference between mala per se: things that are bad in themselves (murder, rape, child molestation, etc.) and mala prohibitum: things that are bad because someone said we shouldn't be allowed to do them. I'm convinced that 99% of all laws written (or punished by regulations) are mala prohibitum.

Bad cops exist, in higher numbers than ever before. Due to the refusal of those in authority over them, and the refusal of the courts to hold them responsible for their actions, they are not only becoming bolder, but I believe some cops who would otherwise fear the consequences are acting out in the understanding that there will be no punishment should they transgress.

This is a very bad state of affairs that can only get worse. I think it is part of the socialist endgame.

A Reader said...

You've touched an important truth, Mr Porretto. All we have to go on when assessing the police around us are anecdotes - either those we've accumulated through personal observation or those we can glean from the reporting of others. Even our most assiduous police reporters and those who confine themselves to reporting criminal charges laid against sworn police officers are in a sense reporting anecdotally. We do not know what we have not been given to the chance to know. Only over the passage of time and with complete information could a pattern begin to emerge. I fear that in the absence of discernment and of a very strict sense of obligation to all involved on the part of the reporters, what we get is often slanted or colored by either a desire to defame the police or to defend them.
I have a cousin who is a cop and has never been anything else. I have another who was a Marine before becoming a cop. The first is a good, decent man and reasonably intelligent. I've never had any trouble from the local PD for which he works, though I've also never given them any trouble myself. He's not a meathead or a thug in a costume, though occasionally he's said things to make me suspect that if someone's he's pursuing or investigating gives him too much trouble, he might arrest and jail the suspect vindictively. The second also seems good and decent, though since he lives several hours away, I have less opportunity to know him. The first cousin has a brother who's been a correctional officer for the local Sheriff's department. He's not so decent. If the Schumer were ever to hit the fan, I expect he would eventually - and perhaps very quickly - turn to theft to feed his family. If the relationship between the government and the people ever became openly violent, I would hope that the first two cousins stayed home with their families, because I wouldn't want to look at either of them through the sights of a gun. I imagine lots of Americans know police officers with whom they would not like to trade bullets, even if many of them also distrust the departments for which those officers work.
What, in the end, is the relationship between consent, complicity, and guilt? Are all cops everywhere guilty of the crimes apparently committed against Eric Garner and Michael Brown? At what point does not quitting one's job with a lawless police force make one an accessory after the fact?

Reg T, be careful about hoping for "peace keepers". If the kind of discussions we're having as a nation right now were to go wrong, you might get these guys:
or these guys:

Reg T said...

A Reader,

Not having worked in law enforcement, you may be operating with a different definition than I use for "peace keeper". As a former peace officer, to - perhaps - be more correct, I refer to those of us whose intent was to "keep the peace", to keep the people we swore to protect and defend from harm, as best we could. And to seek to remove those predators from society when we could not be there to stop them before they did harm.

I realize there have been "Peace Keepers" throughout history with a different intent. Please don't fear me wishing to be in their category. If I was unclear, that was my fault, but we who sought to be "keepers of the peace" had no interest in "lording it over" the civilians in our care.

Unfortunately, many _law enforcement_ officers these days only care about enforcing laws written by fallible men with distinct agendas. In addition to their own agendas. Of course, that is how government wants them to act, teaches them to act.

Ominous Cowherd said...

If the majority of cops are good, why is it that the majority of cops never act or even speak out against the ones who are obviously bad?

The evidence does not support the hypothesis that ``the majority of cops are good.'' The evidence does support the hypothesis that ``the majority of cops see no problem with business as usual.''

A Reader said...

Reg T,

I understand. I'm a computer geek, and a science fiction fan, so my mind jumps to dystopias and distant stars, not Andy Griffth, when someone says "peace keeper." It's an occupational hazard. I would be much more comfortable with police if I knew for certain they thought of themselves as peace officers. Having in-laws in uniform is as close as I've ever gotten to first hand experience of what motivates cops. If you're posting here at all, since our gracious host hasn't attracted any parasitic commentors, I trust you're one of the good guys.