In the past few years — accelerating in the past few months — I’ve seen outrage and surprise from people about the behavior of police officers who have been caught on video committing criminal acts, with only a very few held accountable. I'm outraged too, but I'm not surprised. Here are what I think are the reasons for this lack of accountability:
1. Qualified immunity. This is the US federal law that shields government officials from civil liability for the violation of an individual's constitutional rights. The reasoning behind it is if public officials could be sued for their conduct, the courts would be overrun with lawsuits. Also, public officials are not perfect and will make mistakes, but they can’t operate effectively if they are in constant fear of being sued. Qualified immunity does not cover intentional illegal acts, or acts that are outside the scope of the given official’s duties. (Note: *intentional* illegal acts.) In practice, qualified immunity has come to mean that if a public official is doing his/her job, even incompetently, badly, or illegally, he/she can’t be sued.
2. They have the goods on everyone. In large cities the number of people with true political power are relatively few. Expand that to the county level, and it’s still relatively few. Over years people in those positions, or their families occasionally, commit crimes or are involved in them. Or occasionally they ask for extra-legal favors from the police. This is not a universal rule, many public officials are not corrupt and do not have crimes in their backgrounds, but many do. And when things go sideways, the first people on the scene are the police, who sometimes are happy to downplay an incident or make it disappear. Because of this many public officials hesitate to act forcefully with the police for fear things they’ve done or asked to be done, will be revealed.
This may sound paranoid to you, but it is a fact of life in America. An example of this is the FBI’s attempted blackmail of Martin Luther King, in which they sent him an anonymous letter along with audio recordings of his extramarital trysts. King thought the letter and tapes were meant to compel him to suicide, which is the same conclusion reached by an official congressional investigation in 1976. Dr. King ignored the letter. You can find the letter in the national archives, or read it here:
http://www.lettersofnote.com/2012/01/king-like-all-frauds-your-end-is.html
If you don’t think things like this happen at the local level, I would ask why you would think that? If this is what the highest level of law enforcement in the United States was doing, why would the lower levels be different?
3. The police will frame you or someone you care about. The man who video recorded Eric Garner? Arrested a few weeks later for an unrelated crime. The man who filmed the arrest of Freddie Gray? Arrested for an unrelated crime a few weeks later. There’s a famous video on Youtube of a police officer hitting a woman’s car with his cruiser — a minor fender-bender — and then trying to frame her for drunk driving. Watch it here:
https://www.youtube.com/watch?v=PtNvxZ9yCcI
Now of course the overwhelming majority of police don’t do this, but they *can* do it. And enough of them do, that people in power know what they risk when they seek any kind of legal redress against police officers. What if a D.A. goes after a corrupt cop? Suddenly, in a different district, heroin is found in his nephew’s car. The Mayor decides to crack down on police corruption? His brother for no apparent reason loses a major deal in his contracting business.
Whether you think this is true, or some kind of paranoid theory based on outliers, depends in part on your own basic beliefs about your society. What country do you think you live in? If by default you reply “These are isolated incidents and this is not a systemic problem,” I invite you to reconsider that assumption, given the frequency with which police misconduct has seemingly increased in parallel with everyone carrying a video camera in his/her phone.
4. American police are not like other police. Unlike Europe, American police forces evolved from gangs in the large cities, and from sheriffs and marshals in rural areas. For example, when the NYPD was founded in 1845, it represented the interests of the city’s leaders and functioned as their personal enforcers, in addition to doing actual police work. In 1857 Republican anti-corruption reforms in the state capital relieved that force of duty and created a metropolitan police force, called ‘the metropolitans’, while the NYPD was called ‘the municipals’. A *war* ensued, with the opposing police forces seizing stations from one another, freeing criminals the other had arrested, and generally trying to kill each other when they weren’t all collecting graft. Eventually the Supreme Court of New York ordered the municipals disbanded, and they were promptly incorporated into the metropolitan police force, and the NYPD continued to become what it is today.
You will find stories like this in the history of every major American police department — born in corruption, as much enforcers as they are police officers. This is not true for every city, but for most. The corruption and graft of New Orleans’, Chicago’s, and Los Angeles’ departments’ are legendary.
At the same time, in rural areas, police forces were formed from sheriffs and U.S. Marshals who were tasked with patrolling large areas after the Civil War. In the south, these were county-level positions for people who were the first line of defense in keeping Jim Crow firmly in place and so they often acted outside the law to do so. As in covering up, or participating in, lynchings. In the American west police as such were simply few and far between until the end of the 19th century, and their hiring criteria was often their lethality along with their ability to keep commerce flowing. Some of the stories about this are well known — Wyatt Earp, for example, was hired to insure commerce in Tombstone operated uninterrupted. His brother, Virgil, was both his deputy and the *U.S. Marshal for the region*.
Again, this is not true for every lawman of the time, but you can make some accurate general statements that in the rural-agrarian United States of the 19th century, policing was more concerned with public order, ethnocentrism, and commerce, than it was in protecting the individual.
I offer all this history in support of this assertion: there is no tradition in the United States of police respecting individual rights, or the person of individual people. That is not their way. Joe Friday never existed. Their tradition is one of protecting what they see as order, of insuring that society operates peacefully, and if a given person gets caught up unfairly in the process, in their minds it’s the price of producing the result.
And those are the non-corrupt police. For the corrupt ones you can add self-interest and greed to that list. But, corrupt or not, their highest priority is that they all protect each other — even if things go completely wrong, even if a situation is a massive mistake filled with police misconduct, they close ranks. It is called ‘the blue wall of silence.”
What’s important to understand about this, is how they think about things. They can be victims of coercion as well. Do you think a politician whose son has been arrested, won’t use their power to compel the police? Because they will. In a country as large and populace as the United States, is it realistic to police it while putting individual rights first? Many cops would tell you that’s a nice sentiment, but the job is *so hard* anyway, that achieving that societal order mentioned above is the the best you can hope for. That it’s easy to espouse a pious dedication to the Constitution when you don’t have to spend the eleven to seven shift getting called out to crime scenes in downtown Detroit, one of the deadliest cities in the world. A given cop might tell you that if an accountant makes a mistake, oh well, there goes a few hundred dollars. A cop makes a mistake, and someone is dead -- and they don't think anyone should lose their career, their family's income, their pensions, for one mistake. So they cover for each other.
I make the point of understanding their point of view because this problem won’t get solved by creating another bad guy: the American cop. They aren’t bad. Most of them are good people trying to do the right thing, and they are caught up in the history and culture of their profession. If you don’t think that’s a valid point, think about how many things you deal with in your own job that are not of your making and over which you have no control. Have you ever covered for someone at work who has screwed up? Ever have someone cover for you?
The way to solve this problem, as is the case with most complex problems, is to do what’s obvious and do-able, in small increments, and see what works. One first step would be to stop treating police departments as revenue generators, be it through traffic tickets or civil forfeiture. Hire only very smart people, pay them well, put them through psychological testing for stability and empathy. Start there. Use blind surveys and studies to ask *them* how to fix the problem. Nobody knows better than they do what is wrong.
Go about it thoughtfully, respecting that the job they do is dangerous, understanding that any change needs to be collaborative, but with the bright, unchangeable, line, that there *will be* change. Because what the United States, and the world, has seen on dash cam and cell phone videos over the last few years, cannot go on. It just can’t.