The Essential Role of Civilian Authorities In Law Enforcement

Posted in: Law Enforcement

After a dramatic slowdown in policing activity in New York City over the past few weeks, The New York Times reported yesterday that things are now pretty much returning to normal. What could have festered and become a full-blown crisis, therefore, seems at least temporarily to have subsided. This is, of course, very good news.

Even so, the confrontation between the head of the police union (and others in the law enforcement community, egged on by certain politicians) and New York City Mayor Bill de Blasio has highlighted a truly frightening aspect of the divide between police officers and the people whom they have sworn to serve and protect. If that divide becomes too wide and unbridgeable, the consequences for a free society could be severe.

In his column on Justia’s Verdict last week, Professor Michael Dorf began by noting the importance of civilian control of police forces. Drawing on the history of the Roman Empire, Professor Dorf began his column by noting that the civilian leaders of Rome claimed to draw legitimacy from the Senate, “but in practice their authority depended on support from the legions and the Praetorian Guard.” That is, if the military did not support the civilian leadership, then the civilian leaders would be hopelessly weakened. What looked like an early form of democracy was actually a dictatorship, supported by the force of arms and controlled by the men who commanded those armed men.

In today’s column, I will extend the analysis that Professor Dorf’s column offered, and I will then discuss some groups in our society who, like the police, at least appear to have a similar us-against-them attitude about the people whom they serve. Although there are many analogies between the police and other professions, however, possibly the greatest danger to our freedom is the increasing sense of social alienation felt by some of our law enforcers, and their apparent willingness to act upon it.

Who Really Runs the Country, Politicians or the People With the Guns?

In response to my claim above, that the most dangerous threat to a free society is a walled-off police force, one could object that surely the military has a greater potential to threaten freedom in a very direct way. After all, notwithstanding the increasing realization in this country that local police forces have been given ever more military-style weaponry, surely the military has more military-style weaponry than anyone else does.

Indeed, the dangers posed by powerful militaries can be seen throughout history and into the present day, with power-hungry generals frequently engaging in military coups, overthrowing civilian officials. The most recent change in government in Egypt is a prominent example. Surely, if a country were to find that its military leaders were hell-bent on replacing the government, it would be difficult indeed to stop that from happening. The better approach is to prevent those leaders from even imagining that they could try to depose the government in the first place.

This is why it has been so important in the United States and other liberal democracies to separate domestic policing from national defense. In countries that combine the two, the presence of armed soldiers on the streets is considered a normal part of life, making it that much easier to mobilize such personnel to take over the streets and the government on behalf of a would-be dictator or oligarchy.

In the United States, although there is plenty of reason to worry about the divide between military personnel (and their families) from civilians, those personnel are not (except in the case of natural disasters) permitted to serve in law-enforcement roles. Thus, if a broad swath of the military decided to engage in a slow-down, or in some other way refused to follow orders, the effects might be important, but it would not as a matter of course be easy to turn such insubordination into a military coup.

In addition, the rivalries among military branches end up serving a salutary role, by making an ambitious general in, say, the Air Force less likely to want to join up with the Navy and the Army to take over the government. Similarly, well known rivalries between the CIA and the FBI, and between the FBI and local law enforcement (with police officers sometimes referring derisively to FBI agents as “feebs”), have the effect of reducing the likelihood of conspiracy among these different groups of law enforcers.

In short, even though there are places in the world where the military poses the most direct threat to upending the social order, the United States already has structures and norms in place that significantly reduce the likelihood of a military coup.

Of course, there are many ways in which a government can be inappropriately influenced, even if there is no actual coup. And that is where the concern about the slowdown in New York City becomes important. No one imagines that the New York Police Department (or a significant fraction of its officers) would actually depose the mayor, but there is serious concern that this recent confrontation has exposed a willingness by officers to act upon their grievances by refusing to do their jobs, in an effort to extract concessions from City Hall.

And if enough officers were to refuse to follow civilian authority, the mayor’s hands would be tied. Would he dare to fire some fraction of the city’s police force? This might further alienate the other police officers who otherwise would not have been willing to confront the mayor. Moreover, the mayor would open himself up to blame for any tragedies that would ensue, because he would be personally responsible for reducing the presence of peace officers in a city where crime could rise suddenly.

No matter the merits of any grievances that the police might harbor against the mayor or other politicians, the danger is that the police could suddenly realize as a group that they could effectively take charge of the city. If the police force can essentially threaten to make or break a mayoralty, then true democracy would be at risk.

Resentment Against Civilian Authority

In thinking about the recent confrontation between police and City Hall in New York, it would thus be plausible to say that it does not matter whether the police officers’ grievances are legitimate or unwarranted, at least when it comes to a decision to defy the mayor’s authority. At its core, the relationship between the police force and its civilian bosses is arguably beyond the merits of any particular complaints.

As Professor Dorf’s column pointed out, after all, we generally do not allow police officers to go on strike. The leverage that such a mass action could have on the political process is simply too great to be tolerated. Surely, the uncertainty about how long the recent slowdown would continue in New York City, and the concern over the genuine threat to public safety posed by such inaction, has vividly reminded us what is at stake.

At the same time, we need to understand how and why the police might come to feel aggrieved, believing themselves to be somehow beyond the limitations that mere politicians and lawyers would like to impose upon them.

One problem, however, is that the cause of the outrage that led to the very public expression of police scorn toward Mayor de Blasio is so hard to trace. None of the reasons discussed in news reports even came close to explaining the ferocity of the anger that was aimed at the mayor after two NYPD officers were murdered last month. The anger is all too real, but the reported reasons for that anger do not add up, either in degree or in kind. Instead, there is a kind of gestalt at work, with resentment at the mayor’s supposed “anti-police attitude” (for which I can find no actual evidence) having metastasized into a general rage against the mayor.

It does not have to be this way. Indeed, one might have imagined that a typical police officer would have been delighted by the policy changes wrought after the election of a new mayor, who then hired a highly respected police commissioner. It cannot be pleasant for officers on the beat to engage in the kind of in-your-face tactics that Mayor de Blasio’s predecessors championed. No matter a particular officer’s opinions about the necessity for public safety of the stop-and-frisk or “broken windows” policies, those policies increased the number of fraught confrontations between police and citizens. Some officers have apparently conceded that they are relieved no longer to have to “make quota” on stops, arrests, and so on, but that relief has not translated into a sense that police officers are happy about their new working conditions.

It appears that the working condition, if one can call it that, that most bothers police officers nationwide is the requirement that they be disciplined by people who are not police officers. Mere “civilians” just don’t get it, we are told, because only police officers know what it is like to put oneself in danger on a regular basis.

When politicians and lawyers try to push back against lawless behavior, even the police officers who are not subject to such discipline apparently bristle at the very idea that they could be subject to the judgment of people who have not walked in their shoes. Channeling the famous scene from the film “A Few Good Men” (again showing the close similarities between police and military forces) the argument seems to be something like this: “I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it! I would rather you just said ‘thank you,’ and went on your way.”

The Nature of Closed Professional Groups and the Dangers of Us-Against-Them Mentalities

Although it might seem to be quite bizarre to imagine oneself above the law, in fact it is common in many professional situations for people to view themselves as somehow not bound by the rules that others must follow.

The United States Supreme Court, for example, is frequently faulted for giving itself the right to live under different rules from everyone else. The justices have, for example, maintained tight restrictions on protesters on the Court’s steps that are beyond what it allows elsewhere. Similarly, the justices trust themselves to know when they should recuse themselves from cases, and they often seem to reject the idea that they should live by the rules that they enforce on others. Similarly, state legislators who gladly reduce restrictions on the weapons that people can carry in public nevertheless maintain tight weapons restrictions in their capitol buildings and offices.

For a somewhat different analogy, consider the priesthood in the Roman Catholic Church. For decades, far too many men in the church’s hierarchy were willing to shield lawless predators from civilian authorities, somehow convincing themselves that they maintained the ability and the right to make decisions about whether men in their ranks should be punished for even the most horrific crimes against children and the public trust. Even after the scandals were exposed, too many church leaders—supported, amazingly, by many lay people who were all too willing to say that the church and its holy men could do no wrong—said that these violations were beyond the reach of any secular authorities.

On a much less serious matter, even in the world of sports we often hear of athletes who reject being controlled by “guys who never played the game,” and who thus apparently are not in a position to say that, for example, paying bounties to injure other players is beyond the pale. This attitude, moreover, continues even though the crime in question actually makes the players’ lives more dangerous, shortening their already quite brief careers.

None of these other examples, however, presents nearly the degree of danger that would be presented if a critical mass of law enforcement officers were to decide that they will not allow themselves to be controlled by their civilian supervisors. As influential as judges, priests, athletes, and others are in society, each in their own ways, only law enforcement officers—the people on whom we depend to maintain social order and security—could abuse their position in a way that could so profoundly affect our society. That is power in its purest form.

A society can decide whether it will allow the enforcers of the law to live only by rules that the enforcers themselves think they should live by, or whether it is legitimate for civilian authorities to police the police. This country has (like every other stable democracy in the world) always chosen the latter, as it must. Although it is certainly important to give police due process in enforcing the rules by which they must live and work, those rules must be adopted by civilian leaders, and they must be enforced.

Posted in: Law Enforcement

Tags: Legal