Law Enforcement’s Crisis of Personal Responsibility
By: Matt Boomer
Tags: Police, Law Enforcement, Police Brutality, Civil Rights, BlackLivesMatter

“Whoever says to the guilty, ‘You are innocent,’ will be cursed by peoples and denounced by nations. But it will go well with those who convict the guilty, and rich blessing will come on them.” — Proverbs 24:24–25

“Grandpappy told my pappy ‘Back in my day son, a man had to answer for the wicked that he’d done.’” — Willie Nelson

The killing of George Floyd and episodes of malicious, tyrannical behavior by police amid subsequent protests have demonstrated a raft of problems with distubing prevalence in police departments across the country. Racism, an excessive and escalatory propensity for violence, senses of alienation and hostility toward the citizens they are charged with serving, a lack of respect for essential rights; these are played out on screen when we watch an officer kneel on a prostrated man’s neck and suffocate him; when we see police kill innocents like Breonna Taylor and David McAtee without consequence; when we see officers manhandle and nearly kill a lone, unarmed senior citizen; when we see a man standing still and professing his compassion and empathy for the officers in front of him dragged away in handcuffs.

It is common to hear that such abuses represent the actions of a few “bad apples.” This, of course, ignores the second half of the adage about bad apples; that they spoil the whole bunch.* Police officers who violate the law must be held personally responsible for it in the same manner as any other citizen; to protect such officers can and should delegitimize their department and profession. A healthy police department that prioritized the rights and wellbeing of its community’s citizens would be one in which such abuse was not tolerated.

Instead of such a culture of accountability, what we see too often is a culture of impunity — a sense that police represent a special class beyond the reach of common law, who cannot be expected to be held accountable for violations of it. We have supposed public servants who foreswear personal responsibility for their actions in favor of hiding behind collective solidarity, as to demand justice be done upon one bad cop is immediately twisted into an attack on the institution of law enforcement. This culture of impunity is not just a sense on the part of certain officers but a reality recognized in case law via qualified immunity and ensured by the relentless lobbying of police unions, whose craven clientelism and base self-interest serve as yet more proof that the very existence of public-sector unions is a curse upon this land.

This culture not only refuses to discourage police abuses but implicitly encourages them, creating permissions structures for officers motivated by racism to act and allowing for the continuation of police violence, of which black Americans are disproportionately victims. Any effort at remaking our police departments must untether them from this culture. To advocate this is not to take up a radical political platform but rather to recognize that police officers are human beings with agency who bear personal responsibility for their actions and are subject to the same laws they are charged with enforcing. In a free and self-governing society, those who claim the mantle of justice must serve justice in their own ranks.

*A reader predisposed to defend police may come away from this sentence with the wrong conclusion, so I will say this to remove any doubt: in no way am I suggesting that all police officers are wicked or that they are not worthy of respect for the hardships they endure and the sacrifices they make. On the contrary, it is out of a high regard for law enforcement as a profession that I say this: an officer who cannot be trusted to abide by the law and uphold the rights of citizens even at risk to his own life is one who is unfit for the force. Law enforcement is a noble calling; it requires noble individuals.

Impunity from the law

In the courtroom, the doctrine of qualified immunity stymies efforts to hold police accountable for misconduct. Brought into existence via Supreme Court case law in Harlow v. Fitzgerald (1982) and bolstered by subsequent rulings in Anderson v. Creighton (1987) and Pearson v. Callahan (2009), among others, qualified immunity disallows civil-rights lawsuits against agents of the state except in cases where the civil right in question is “clearly established.”

The intent of this principle is stated in Pearson v. Callahan: “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” In practice, however, the “clearly established” standard shuts down lawsuits against public officials unless there is a precedent for a similar suit in pre-existing case law. So a potential suit against, say, the officer who killed Andrew Scott — a man who was neither a criminal nor a suspect in any criminal case, but was killed by an officer who entered his home without obtaining consent or identifying himself as an officer — can be thrown out immediately, because there was no previous civil-rights case in which a judge ruled against an officer who did the same thing.

The circular logic at work in this principle is obvious: we can’t bring cases against these officers because there is no case law backing the notion that their actions are unconstitutional; there is no such case law because qualified immunity prevents cases from being brought in the first place. I’ll quote from Fifth Circuit Court Justice Don Willett, who noted in a scathing 2018 opinion:

“To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question ‘beyond debate’ to ‘every’ reasonable officer. Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.”

UCLA law professor Joanna Schwartz concurred, noting in a 2018 Notre Dame Law Review study that the Supreme Court’s consistent upholding of qualified immunity encourages a sense of impunity in police departments and that it effectively deters legal challenges against state actions that violate civil rights. She also added that its quashing of potential cases prevents evolution in guidance for law enforcement, stating:

“When the Supreme Court suggests that only its decisions can clearly establish the law, and then repeatedly grants qualified immunity without ruling on the underlying constitutional questions, law enforcement agencies have little in the way of guidance about how to craft their policies.”

The good news is that qualified immunity appears to be in jeopardy, in both the legislative and judicial arenas. In Congress, Reps. Justin Amash (L-MI) and Ayanna Pressley (D-MA) have introduced legislation revoking the courts’ restrictive interpretation of “clearly established.” And at the Supreme Court, eight cases — backed by amicus briefs from an astonishingly diverse range of advocacy organizations — sit before a bench on which justices as diffuse as Clarence Thomas and Sonia Sotomayor have expressed their disapproval of the doctrine. If successful, these efforts will put police across the country on notice that they can and will be held personally liable for violating the rights they are meant to protect.

Impunity from professional accountability

In a just world, we would expect legal accountability for police officers who commit egregious misconduct. In a sane one, we could at least expect such officers to face dismissal from the force and have trouble finding work in policing after. A police officer who is needlessly violent, or violates the rights of citizens he is ostensibly protecting, is not only incompetent but a liability to the department.

However, thanks to the efforts of police unions, departments across the country have contracts that put barriers between police and professional accountability. Such barriers include burying or disqualifying complaints against officers, deleting records, limiting disciplinary consequences, and providing paid leave to officers under investigation.

At their worst, police union contracts can encourage or require departments to rehire or reinstate officers who are found guilty of misconduct. A Washington Post report from 2017 provides some samples:

“A San Antonio police officer caught on a dash cam challenging a handcuffed man to fight him for the chance to be released was reinstated in February. In the District, an officer convicted of sexually abusing a young woman in his patrol car was ordered returned to the force in 2015. And in Boston, an officer was returned to work in 2012 despite being accused of lying, drunkenness and driving a suspected gunman from the scene of a nightclub killing.”

In their public conduct, union leaders also contribute to a clannish culture of tribalism and hostility toward the public among police officers. Lt. Bob Kroll, president of the Police Officers Federation of Minneapolis, recently provided an excellent example, vilifying George Floyd as a “violent criminal” and deploring protestors as terrorists. Union leaders also frequently reinforce codes of silence that prevent officers from holding each other accountable.

The fundamental reason for this state of affairs is that the incentives of police unions are not aligned with those of the communities they serve. A police union, like any other labor union, exists to maximize job security and pay for its members; the public’s interest is to have officers who obey the law and are held accountable when they violate it. In the area of police misconduct — and indeed among public employee unions in general — the union’s goals put it at odds with the public’s interest in accountability.

The danger in which this misalignment of incentives puts the general public should be cause to rethink the necessity for such unions to even exist, let alone exercise so much influence. Thankfully, the current moment has many rethinking these arrangements.

Moving Forward

If we are to have rights we must have laws defining and protecting those rights (although I would see a great many of our laws repealed); if we are to have laws then we must have personnel to enforce them (although many are now exploring the prospect of non-police solutions to problems that are primarily social rather than criminal in nature). Whatever settlements come out of this portentous moment, they must be able to solve the crisis of personal responsibility and accountability that pervades the status quo. Some cities are already headed in this directon; let us hope their efforts prove to be more than token gestures.

Those who undertake the vocation of law enforcement must understand that they are not above the law or their constituents; in point of fact they are subservient to us, serving only at our sufferance. They must also understand that this is their position relative to each and every one of us, regardless of the color of our skin. A law-enforcement apparatus that prioritizes the rights and livelihoods of its black citizens — which affirms that black lives matter — must dispense with the notion that its members are entitled to special protection when they destroy one of these lives.