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Wednesday, April 30, 2008

Sins of omission and commission in police work

In a recent post, Adam Kolber quotes a letter to a newspaper complaining about the verdict in the Sean Bell case in which the writer demands that “police officers … hold our interests and our lives above their own” and “accept the threat of harm as part of their jobs and their oaths. And they must demonstrate restraint even at the expense of their lives.”

Adam quite reasonably asks whether “it is fair to ask a police officer to value the life of someone else more than his or her own.” But there is perhaps a deeper incoherence in the letter writer’s demand: The difficulty is that police officers can endanger lives through inaction – “restraint” -- just as much as through action.

Police officers who do not swiftly intervene with violence in risky situations endanger lives by allowing communities to unravel in crime. The crime wave that hit New York City between 1968 and 1992 was arguably influenced by such sins of omission. Some such omissions are specific and deliberate – for instance, the police union’s “slowdown/sickout” of the Fall of ’68. But some observers – among them the historian Vincent Cannato – believe that slack police response during the 1970s and 1980s was the result of the NYPD’s new culture of refusing to take actions that could result in an accusation that they used unjustifiable force. Turning a blind eye to open-air drug markets, gang warfare, violent spouses, or rowdy nightclubs is a great way to insure that one will never be accused of encroaching on anyone’s civil liberties, especially if one believes that only “state action” and not private action can deprive people of their civil rights.

If Feminist legal scholarship has one central lesson to teach all of us, it is that private violence is just as much a deprivation of civil liberty as state violence. Police inaction threatens the most vulnerable – women, the elderly, the poor, and racial minorities – because these groups are most likely to be targets of private crime. Therefore, a cop who routinely gave plausibly violent people the benefit of the doubt (and the first shot) even when the risks of the cop’s inaction seemed to outweigh the risks of action would not merely sacrifice his own life. He’d also eliminate the fear of official violence that is a primary deterrent to criminal activity. Such a police force would be the domestic equivalent of the UN’s Blue Helmets in Bosnia or Rwanda – utterly useless for suppressing the private threat to civil liberties.

Adam is quite correct that it is preposterous to ask cops to take a bullet for civilians: No police force has ever been so saintly – certainly not for the pittance that NYC pays its Finest (starting salary being about 25k). But even if we could somehow induce cops to show a Christ-like inclination to turn the other cheek, should we do so? I would think that such sanctity might very likely cost more civilian lives than it would save.

None of these considerations exonerate the specific defendants in the Sean Bell case from the charge of being incompetently or even criminally trigger-happy. But the solution to such behavior is better training, not slogans favoring restraint above suppression of private violence.

Posted by Rick Hills on April 30, 2008 at 10:08 AM in Criminal Law | Permalink


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The NY Times letter writer has it right that the state may, at least in principle, ask officers to take the bullet. I nevertheless strongly agree with Kolber and Hills that it would be extremely unwise for the state to do so, even if we believed that officers could in practice fulfill such a contract. In a draft I recently posted on SSRN entitled “A Justification Theory of Police Violence,” forthcoming in Northwestern University Law Review, I use the law of justification defenses to give structure and content to the Fourth Amendment standard governing police violence. In the course of doing so, I argue that police officers may use force solely to protect themselves from harm because (and only because) on balance doing so serves state interests. While there are strong deontic, public policy, and practical reasons to allow officers to defend themselves forcibly, those uses of force also have significant social costs. If the costs of that force became too high, there is no principled reason why the state could not pay officers to contract away at least a significant portion of what would otherwise be a right to self-defense as a condition of employment, just as federal employees now contract away some of their free speech rights under the Hatch Act.

In this light, one might read the NY Times letter writer to be arguing that we have now reached the state of affairs in which allowing officer self-defense is too costly, and read Kolber and Hills to attempt to describe some costs to the state of asking officers to contract away rights to self-defense that the letter writer may not have fully considered. Kolber and Hills hit on some big costs, but there are others: Not only is there a significant risk that we might be left with too few and less effective officers, but the state might be faced with enforcing contracts that are seen to violate public policy because they allow individuals facing financial pressure to trade monetary rewards for pain and physical injuries for which money would not easily make them whole, much like organ selling.

Posted by: Rachel Harmon | May 5, 2008 11:52:30 AM

Here's another odd implication of the letter: If the lives of police officers are less valuable than the lives of civilians, a police officer who perceives that his fellow officer's life is in danger should evaluate the situation differently (often by acting more slowly and cautiously) than a police officer who perceives that a civilian's life is in danger. Perhaps the letter writer intended this result, but I don't think it's one that most people would endorse.

Thanks, Rick, for your comments on my post!

Posted by: Adam Kolber | Apr 30, 2008 5:30:02 PM

I'm never adverse to a little more self-promotion, so see here and here for an argument that police inaction can unconstitutionally deny the "protection of the laws" to victims. Feminist views aren't super-prominent in the pieces, though Robin West has made the same basic point.

Posted by: Chris | Apr 30, 2008 1:24:06 PM

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