Observations on Police “Riots” and the Current Moment

David Super

     The horrific scenes of wanton, gratuitous police violence that are filling our screens and social media feeds bring up many powerful emotions.  I am unsure if this is the right medium in which to share them, and if it is, I am not the right person to initiate that conversation. 

     These events also yield some analytical observations within the broad ambit of this space.  Some of those may be worth sharing. 

     First, although the rhetoric of “police riot” has power in catching the attention of those previously unaware of brutality, it is a deeply flawed description of what is occurring.  What many police are displaying now for all to see is a mere extension of what has been occurring on a routine basis in African-American, Latinx, and immigrant communities and on countless occasions when police interact with Native Americans.  And the moves on display are too cold, too calculating, too practiced to be those of over-heated “rioters.”  Did all those officers suddenly wake up the same morning with the idea of covering their badges? 

     It is a sign of the volume of repressive violence in communities of color, and of how even the best of us have unwittingly become acclimated to it, that until the current demonstrations we only rarely heard about police violence not resulting in death.  Yet for every Tamir Rice, Freddie Gray, Sandra Bland, or Philando Castile who died, there are countless others who were shot, beaten, choked or tazed but survived.  If Rodney King had been tortured by the police today, most of the country might never hear about it because he lived. 

     Also, why would officers accustomed to acting appropriately have such strongly negative instincts toward the presence of the news media?  A friend co-founded an award-winning platform that lets citizen-journalists in areas without a robust free press sell their work to major international outlets.  Their contributors in repressive Middle Eastern dictatorships face similar reactions even when recording what should be relatively innocuous behavior.  President Trump, of course, profusely praises the despots leading those repressive regimes. 

     The well-developed routines of police repression we are seeing replicate those of both Cairo, Egypt, and Cairo, Illinois.  Both the Egyptian security forces and some police here have increasingly relied on tactics that threaten demonstrators with permanent blindness.  We should not pretend that this is somehow an aberration, as the term “riot” suggests.  This is “police repression” and should be treated as a chronic problem, not an acute one. 

     Indeed, although the militarization of the police has made these problems both more prevalent and more deadly, these problems are not new.  When I was very young, the legendary Fred Ross, Sr., told me that when starting to work in a new community, an organizer could count on gaining traction by talking about the police.  This was, he said, because every low-income community in the country needed either more police protection or more protection from the police.  Sometimes both. 

     Second, this problem offers a golden opportunity for principled Originalists to step up.  Police forces on today’s model were unheard of when our republic was founded.  Sir Robert Peel did not found the Metropolitan Police Department in England until four decades after the U.S. Constitution’s ratification. 

     In addressing the one body they did know with the potential to apply systematic repressive force against the People – a standing army – the framers demonstrated considerable unease.  They prohibited long-term appropriations for the Army (but not the Navy).  They subordinated the Army to a civilian president.  And they dispersed authority over this dangerous weapon by requiring that Congress authorize the use of force with a declaration of war and that state governments authorize domestic armed interventions.  And, of course, when addressing militias’ role in preserving “the security of a free State”, the Second Amendment specifies that they must be “well regulated”.

     Perhaps some adherents of dynamic theories of the Constitution could argue that, in the intervening decades, this country has “learned to stop worrying and love the” police.  (That said, I very much doubt that the rise in police power came close to following the steps Bruce Ackerman identifies as necessary to obtain popular constitutional legitimacy.)  An Originalist, however, should have no difficulty spotting the danger current levels of police power and impunity pose to a free society. 

     If the Common Law is the right benchmark for determining when the government has taken private property or exceeded its Fourth Amendment bounds, surely it raises questions about the police firing rubber bullets at peaceful protesters or “kettling” them so that they cannot leave despite demands that they do so.  If old English practices can determine how to treat out-of-court statements for purposes of the Confrontation Clause, perhaps they might provide insight into the threat false police reports pose to a free society.  Many of the doctrines that enable police violence are of much more recent origin. 

     Third, the problem of controlling police violence inevitably reminds me of Jon Michaels’s work.  He finds that the diffusion of authority among functionally different actors is so fundamental to our system of government that when the original Separation of Powers was unable to keep up with the demands of governing a modern, complex society, we recreated one in the resulting administrative state.  He sees career civil servants performing many of the functions previously assigned to the courts – maintaining procedural regularity and fact-based policy-making – with the support of the courts.  Broad public participation, and the more intensive engagement of groups with focused interests at stake, mimic the involvement of Congress and its committees.  Even when the administrative state gives way to privatized governance, we still are seeking substitutes for the administrative Separation of Powers.

     In marked contrast, our current legal regime relies overwhelmingly on linear executive authority to control police.  A sweeping qualified official immunity doctrine prevents concern about tort judgments from deterring any but the most glaringly unlawful behavior.  Governmental immunity doctrine frees police departments from responsibility for unlawful violence done in their names, reducing the likelihood that city or county councils will intervene to demand structural reforms.  Effectively unmeetable standing requirements prevent courts from addressing structural deficiencies fostering violence.

     Policing a democratic society inevitably requires balancing competing objectives.  In other situations where important decisions must accommodate competing goals, our system often helps ensure that each is taken seriously by allowing several different actors with differing incentives a say.  The model the Supreme Court has endorsed, under which police are solely controlled through a line of command to political officials subject to little accountability for the harm that civil rights and civil liberties abuses do to others, is misguided at best and could be seen as not taking objectives other than crime control sufficiently seriously. 

     Fourth, as crucial as are efforts to confront the pure racism of this Administration and of those police officers that deploy repressive violence, I hope this will not diminish efforts around “applied racism.”  Most immediately, that means addressing huge disparities in health status and health care access that have made COVID-19 so much more deadly for people of color as well as policies skewing much of the response to benefit affluent predominately white areas. 

     But beyond that, although mass incarceration affects people of all races, it is driven by racism and has vastly disproportionate effects on communities of color.  Death penalty politics are complicated, but if we had not found ways to limit it primarily to punishing the murder of whites, abolition likely would have advanced much farther in this country.  Similarly, although crude economic and moralistic arguments would always be raised against anti-poverty programs, “welfare” ranks with “crime” and “affirmative action” as one of politicians’ favorite codewords to mobilize white supremacists.  And however one wishes to parse xenophobia and racism, the President has made clear that he would not be waging his war on immigrants if they were coming from Norway. 

     Fifth, police violence may be yet another destructive outcome of our foolish parsimony in funding government.  Demands that we raise our standards for police hiring are commonly countered with claims that doing so would prevent departments from meeting their recruiting quotas.  Similarly, we are told that many irreplaceable officers would resign if we held police accountable for their wrong-doing.  These claims are largely conjecture, but to the extent they have any underlying truth that may reflect the low salaries that state and local tax limitation have brought.  Offering higher salaries for jobs with a stronger professional code might well allow police forces to compete for serious, thoughtful candidates that currently enter other lines of work. 

     Moreover, as budget cuts thin out state and local human services, we shift more and more duties to the police (and jails) that they are ill-equipped to handle.  Restrictions on psychiatric outpatient services allow more patients to decompensate and have risky interactions with the police.  Our failure to respond to the shrinking supply of affordable unsubsidized housing results in more people on the street having repeated interactions with the police.  Our bizarre stinginess about funding substance-abuse treatment unnecessarily increases crime and police conflict.  And skimping on child and adult protective services forces officers to play de facto social workers despite their lack of professional qualifications. 

     Direct regulation of dangerous police practices and better training are absolutely necessary.  But we can improve conditions for both police officers and communities by moving beyond our childish insistence that a complex society can have effective government on the cheap. 

     Finally, for anything to change, we need stamina.  At some point, particularly in a pandemic, the mass demonstrations will taper off.  We will need ways to redirect the energy that police violence has engendered so that it does not dissipate. 

     We also need law.  In a democratic society, law is the means for preserving what the People have learned and what the People have decided after the energy and focus of an initial crisis has abated.  That is true of elaborate constitutional moments.  It must also be true of situations like this one, where a longstanding disregard for society’s professed norms boils over into popular outrage. 

     @DavidASuper1
Posted 8:31 PM by David Super [link]