Ryan McMaken – June 6, 2020
I don’t know which acts of police abuse and brutality are motivated by racism and which are not. But let’s say, for the sake of argument, that we could end all racial bias immediately through some magic spell or button we could press. Would this end police abuse, or even most of it?
Experience tells us no. The data is clear that police abuse is not limited to any particular group. Indeed, a majority of those shot by police are white.
For example, when police officer Phillip Brailsford gunned down Daniel Shaver, it’s unlikely that he was motivated by some sort of ethnic or racial bias. The same was probably true when police shot Duncan Lemp in his sleep during a no-knock raid, or when police pinned Tony Timpa to the ground until he died. After Timpa died police joked about it, and apparently found the situation quite hilarious. This is not limited just to local police personnel. When federal agents massacred more than eighty (mostly white) men, women, and children at Waco, law enforcement officers probably weren’t motivated by the race of their victims, either.
Police also appear to have no aversion to being callously indifferent toward victims of all racial and ethnic backgrounds. When police elected to cower outside Stoneman Douglas High School rather than face the gunman slaughtering children inside, it’s unlikely that they paid much attention to the racial makeup of the student body (a majority of which was white.)
Unfortunately, anecdotes like these could be recalled for hours and hours.
“But non-whites are more often targeted proportionally!,” some might say. This may be so, and indeed some may decide that turning police into equal-opportunity abusers is a type of progress in itself, but it hardly addresses the systemic foundations of police abuse.
And the underlying problems are substantial. They are systemic and built into the law enforcement community in the United States for several reasons.
First, police are protected from accountability both by laws granting them legal immunity and by police labor unions that shield abusers. Secondly, the proliferation of laws designed to target nonviolent people for petty offenses (most commonly drug offenses) provides police with nearly endless opportunities to stop and harass people who have committed no real crime.
Murray Rothbard has illustrated how the ideal in this situation would be a type of police privatization. But for those who are not yet ready for such a radical reform, much can be done in the meantime through more mild, yet very necessary, reforms.
One: End Legal Immunity for Police
At the core of the issue is a lack of accountability and legal liability on the part of government employees who enforce the laws. Thanks to activist progovernment judges and legislation designed to shield police, it is extremely difficult to hold abusive law enforcement agents accountable.
Chris Calton explains:
The doctrine of qualified immunity essentially says that for a police officer to be held accountable, there must be a statute specifying all the particularities of his or her unique situation. Anything even remotely ambiguous falls under the broad category of “discretion.” In theory, legal immunity is “qualified,” but in practice, it is effectively absolute.
This way of thinking, however, is only a few decades old. It was solidified in American law by activist Supreme Court judges in 1967. Their ruling essentially created new law which erected new barriers against holding police accountable for abusive behavior.
As ABC reported this week:
While the Civil Rights Act of 1871 gives Americans the unambiguous ability to sue public officials over civil rights violations, the Supreme Court has subsequently limited liability to only those rights that have become “clearly established law.”
Critics say the standard is near-impossible to meet.
“In order for a plaintiff to defeat qualified immunity, they have to find a prior case that has held unconstitutional an incident with virtually identical facts to the one the plaintiff is bringing,” said UCLA law professor Joanna Schwartz. “And over the last 15 years, the court has made it a more and more difficult standard for plaintiffs to overcome to go to trial.”
Last month, a Reuters report noted that “the doctrine has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.”
Consequently, Calton concludes:
There are several layers of negative incentives built into the criminal justice system….But qualified immunity arguably serves as the most dangerous of the perverse incentive structures governing the police. Through legal evolution, the protection offered has expanded to an absurd degree, where an officer can record himself murdering a man as part of a sadistic game only to be rewarded with an early retirement. Police officers enjoy an almost untrammeled liberty for brutality, theft, and murder—those who do not abuse their authority restrain themselves not because of institutional structures, but despite them. Qualified immunity is the clearest example that the rule of law is dead (or, perhaps, never existed); government officials live by one set of rules, and the rest of us live by another.
Two: Abolish Police Unions
Public sector unions in general have always been objectionable, since these unions empower workers in monopoly industries funded through forced income transfers from the taxpayers to the government workers, whether we’re talking about teachers, trash collectors, or police officers. Thomas DiLorenzo explains:
The main reason why so many state and local governments are bankrupt, or on the verge of bankruptcy, is the combination of government-run monopolies and government-employee unions. Government-employee unions have vastly more power than do private-sector unions because the entities they work for are typically monopolies.
When the employees of a grocery store, for example, go on strike and shut down the store, consumers can simply shop elsewhere, and the grocery-store management is perfectly free to hire replacement workers. In contrast, when a city teachers’ or garbage-truck drivers’ union goes on strike, there is no school and no garbage collection as long as the strike goes on. In addition, teachers’ tenure (typically after two or three years in government schools) and civil-service regulations make it extremely costly if not virtually impossible to hire replacement workers.
Thus, when government bureaucrats go on strike they have the ability to completely shut down the entire “industry” they “work” in indefinitely. The taxpayers will complain bitterly about the absence of schools and garbage collection, forcing the mayor, governor, or city councillors to quickly cave in to the union’s demands to avoid risking the loss of their own jobs due to voter dissatisfaction.
Police unions, because of the nature of police work, are even more dangerous. These unions are central to shielding police officers from legal accountability and ensuring that known violent offenders in the police force continue to collect salaries and benefits. Police unions also repeatedly press for ever more aggressive tactics on the part of police as an effort to increase “officer safety” at the expense of public safety.
As Reuters noted yesterday: “efforts to overhaul the way policing is done in Minneapolis repeatedly fizzled in the face of a powerful 800-member union that championed military-style police tactics.”
“[The] union’s labor contract with the city is a formidable roadblock to citizens seeking disciplinary action,” the researchers found. Nor is this unusual:
The Minneapolis union contract is not unusual. Dozens of other contracts across the United States contain provisions that stymie efforts to hold cops accountable for violence and other alleged abuses….The news agency examined contracts in 82 cities for that article and found that 46 required departments to erase disciplinary records, some after just six months. The absence of a paper trail makes firing officers with a history of abuses difficult, lawyers and police chiefs say.
As Tate Fegley illustrated earlier this week at mises.org, police union contracts are a driving force behind the requirement that police fired for misconduct be able to appeal easily. Consequently, many police officers who have been fired for well-established records of misconduct and brutality are rehired.
As with teachers’ unions and unions in general, police unions exist to protect their members, and that’s often at odds with the public interest and with the interests of taxpayers. In this context, “standing up for workers” means ensuring less accountability, higher pay, and less work (i.e., fewer services available to the public).
Three: End the Drug War
One of the most important factors in limiting police abuse is reducing the number of violations that police can use to justify the harassment of peaceful citizens.
Without the drug war, of course, police would have far fewer ways of justifying traffic stops and searches, surveillance of private citizens, and raids of their homes. As I noted in 2016 in “Too Many Laws: Why Police Encounters Escalate“:
Dealing with violent crime constitutes only a small minority of what police deal with on a daily basis. For example, in 2014, out of 11,205,833 arrests made nationwide (in the US), 498,666 arrests were for violent crimes and 1,553,980 arrests were for property crime.
That means 82 percent of arrests were made for something other than violent crime or property crime.
Moreover, many of these non-violent offenses—such as drug use, liquor violations, carrying an illegal knife, or other infractions that should be regarded as small-time offenses can result in serious jail time or prison time, as well as steep fines and lost earnings.
For instance, the highly publicized death of Eric Garner at the hands of police officers was a conflict precipitated by the sale of untaxed cigarettes by Garner. The police officers who killed Freddie Gray in custody in Baltimore later claimed the arrest was necessary because Gray possessed a knife that violated city ordinances.
And then there are the countless cases of non-criminals who have been stopped, searched, arrested and imprisoned for petty drug offenses such as possession.
Indeed, police departments spend an immense amount of time and resources on these nonviolent offenses at the expense of violent crime investigations. Most of these offenses are drug offenses. The Baltimore Police Department, for example, in a jurisdiction where homicides are ten times as high as the national average, devotes less than 3 percent of its police officers to homicide investigations.
In the United States, less than half of violent crimes are ever investigated to the point where we might call them closed cases.
Police focus on nonviolent and petty offenders in part because it’s easier to do so. But there are other benefits as well. Harassing drug offenders can bring financial windfalls thanks to asset forfeiture laws that allow law enforcement agencies to confiscate private property even on the flimsiest of pretexts. These laws have been greatly strengthened by the drug war.
The Benefits of Reform
Just these three measures could go a long way in changing the incentives for police abuse while raising the likelihood of dismissal or other sanctions for abusive behavior. Whatever it is that motivates law enforcement officers who commit abusive acts, it is a safe bet that we would see less abuse if officers were not so well shielded from legal action which might hold them accountable. Moreover, if police were no longer empowered to accost and confront private citizens over petty drug and weapon offenses the opportunities for abuse would likely be substantially diminished.
Originally published at Mises.org. Ryan McMaken is a senior editor at the Mises Institute. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.