2017 September 22
Our current social struggles over the actions of the police are a matter of justice, of course, but they are also rightly seen as an element of our larger cultural wars, with the police lining up against those who feel victimized by the police, many with good reason, and each side drawing passionate supporters. As a matter of justice, this dispute could be analyzed in the limited terms of public policy; but like other cultural clashes, its antagonists enter the dispute with very different, mutually-unintelligible perspectives, as though lacking a common language. What is unusual about the cultural clash over the police is how much of it is based on a contradiction of values internal to the police themselves. For a large number of cops, there is a direct conflict between an ideal that they claim and often imagine themselves to embody, and a reality created by their deeper, unstated beliefs. There is a conflict between cop as servant and cop as master.
Let me start by defining a specific role in society, in the form of an ideal: the steward-guardian. The steward-guardian risks its own safety, and sometimes sacrifices its own life, to protect the safety of others, and more importantly, to protect their rights. As we will always be an imperfect society, with individuals who threaten our safety and our rights, the steward-guardian is a necessary role, and one, I believe, that is realized in at least some individuals. I honor those who take this role upon themselves; I honor their risk, and I honor their sacrifices. In the simplest terms, they are heroes.
Many police officers, without using the term of course, aspire to the ideal of the steward-guardian, and many even achieve it. To them I extend the respect this ideal demands; and our present society in the United States chooses to extend this respect as well, in very specific ways. The social contract we form with the police is based — so we say, and so we are told — on their adoption of this ideal, on their assumption of personal risk and their courage in possible and actual sacrifice. They are treated with deference by many citizens, and their word, in court for example, is held above most others’. And though this risk and certainly the sacrifice can never be adequately compensated, still we make an effort to provide some due compensation. Most officers receive comfortable middle-class salaries, one of the few professions where that is possible without a college degree. Officers are frequently provided patrol cars for personal use. They are frequently allowed to earn extra money as private security while in uniform — allowed to collect the full rent on what is in effect the private rental of public authority. And should they be injured or killed, the government will stop at nothing to find, convict, and punish those responsible, treating it as a sacred duty. All of this seems appropriate for the heroic role they play in our society.
There are, however, other police officers who do not actually adopt the ideal of the steward-guardian, who place their own safety above the safety and the rights of those they are meant to protect. This is understandable; but it is not heroic. In effect, these officers function as ordinary citizens, but with guns. This aspect of the police is most evident in cases of police shootings of civilians. Often the justification for such shootings is only sensible on the understanding that the officer was not to be exposed to any risk whatsoever. If a civilian could possibly have posed a risk to the officer, the officer was justified in using instant, deadly force. The justification is also put forth in a larger number of non-fatal police interactions, where the safety of the police requires that civilians deemed possibly dangerous be detained, held at gunpoint, searched, questioned, roughed up. Again, this is an understandable human impulse. But it is not the high ideal at the heart of the social contract we form with the police. If we wanted to settle for police who were unwilling to take risks, we would not feel obligated to honor them as we honor those who do take risks.
There are still other police officers who fall beneath even this standard, and who can fairly be described as corrupt. The term ‘corrupt’ brings instantly to mind the officer who steals or embezzles, who shakes down the innocent or secretly takes home the seized assets of the accused. This form of corruption is sensational, but it is not, I think, particularly common, and not something most police should be associated with. And the corruption that is civil asset forfeiture is systemic, authorized and driven by the government as a whole. The most common form of corruption for an individual officer is abuse of authority, beginning with an overestimation of the officer’s authority in the first place.
This overestimation rests on an unexpressed belief, by many in the police, that we live in a militarized society. To these police officers, society has an implicit military hierarchy, and implicit military discipline. The hierarchy lies within the government, and is realized almost exclusively through the police chain of command. In a typical municipality, this starts with a mayor, and then perhaps a director of public safety. Next in the chain of command is a uniformed chief of police, followed by the various captains, lieutenants, and sergeants that we know from television, and then the patrol officers. But these patrol officers are not the army grunts in their own vision of a militarized society. The true grunts are all the rest of us, those not in the police, who hold no rank at all. We are all subject to military discipline and, as the lowest tier of society, are under the command of anyone further up — which is to say, anyone in the police.
In an actual military, someone is always in charge. Whoever holds the highest rank can expect the obedience of all present. In normal human life, most situations do not involve any members of the government. Under the police notion of a militarized society, therefore, when a police officer arrives on the scene, and finds only civilians, he instantly becomes the highest-ranking member of society present, and assumes command. The police officer is our military superior. He does not consider that we have not agreed to this arrangement, or that the law might not allow it. He never considers that there might be situations where no one gets to be in charge, or needs to be.
And in the militarized view, any failure of obedience or even obeisance is a challenge to the officer’s authority, and indeed a crime, which can be dealt with by the officer through summary judgement and punishment. Punishments on the scene can include detention, public humiliation, invasion of privacy, manhandling, limited property damage, and some degree of physical injury; this can lead to extended detention and attendant hardships (missed days of work, social difficulties) before anyone is in a position to challenge the summary judgement. But in a militarized society, the immediate superiors all have the same view of authority as the first officer, and are likely to back him up.
In the real United States of the present day, we find the police represented — including by themselves — as steward-guardians, deserving of all the honors and privileges that entails, while many of the police actually act, less openly, as our superiors in a militarized society. This disconnect is not a problem in the middle- and upper-class white communities where the police presence is light, and the residents only encounter the police when they are victims of crime. The disconnect is a major problem in poor, black, and Hispanic communities where the police presence is heavy, and where the criminal portion of the population is presumed by the police to be high. My own interactions with the police, which I suspect are more frequent than those of other white people, have been, at worst, unpleasant evidence of the belief in a militarized society, and short of that, confirmation that the police are not taking risks to protect our rights. I can only imagine, then, how a black or Hispanic living in a poor neighborhood feels in an interaction with the police, how a young man from such a community feels on his tenth or twentieth informal detention.
For those individuals, and those communities, the social contract premised on the steward-guardian ideal is not in force. The individuals and communities are expected to defer to the police on the grounds that the police are righteous public servants selflessly risking their lives for the common good; and even in poor neighborhoods the residents pay for the police out of their taxes. But the police, far too often, do not serve the community but rather expect to be served by the community. They expect obedience as if from military subordinates, and they dispense petty punishments in retaliation for any slight to their authority, or even because they are in a bad mood. Some readers will respond to these claims by pointing to examples, perhaps themselves, of honorable officers, and insist that the cops simply aren’t like that.
But when it comes to the behavior of the police, the armed representatives of the ultimate power in our society, even a hundred thousand counterexamples are not enough. Adherence to the standards of the social contract must be universal. The safety and rights of the public, not the police, must come first, or the police are not doing what they have agreed to do, and we no longer owe them what the contract promises. And corruption of any sort by the police, including the militarization of society, is unacceptable, and deserves a forceful response. Even petty abuses of power must be criminalized, and where criminalized, must be sanctioned. The police must of course be afforded due process; we must resist the kangaroo court demanded by elements of the left whenever a police crime is alleged. But the balance on due process today is clearly on the side of the police: criminal allegations against the police too frequently end in acquittal, and criminal allegations by the police too frequently end in conviction.
Donald Trump campaigned explicitly for the police and with their support, to a degree unusual even for a Republican. His attorney general Jeff Sessions is actively weighting the scales in favor of the police after a very mild effort at reform towards citizens’ rights under Barack Obama. One of the nation’s worst cops, Phoenix-area sheriff Joe Arpaio, was pardoned by Trump for illegal conduct of his office; another, Milwaukee sheriff David Clarke, was at one point offered a job with the Department of Homeland Security. Trump has encouraged extrajudicial violence by the police, and he deliberately stokes racial and cultural resentment in ways that intersect significantly with his law-and-order message. We are facing, therefore, a period of years in which, far from addressing the concerns of Black Lives Matter and similar reform efforts, far from improving the gross imbalance between police interests and citizen interests, society is going to move in the opposite direction, giving the police more discretion and less oversight, under the leadership of a federal administration that has staked out its position on law enforcement based not on an examination of the evidence, but on a side in the culture wars. That’s the kind of position that won’t be negotiated, or change over time.
But a social contract, while expressed in government, is formed by society. That’s what makes it a social contract. The culture warriors who idolize the police regardless of their actions may control the government, but they do not represent a majority of society. In fact, there are few issues on which it could be clearer that the majority vote against Donald Trump was a unified rejection of his policies. Hillary Clinton, Gary Johnson, and Jill Stein voters may not all have agreed on who should be president, but they can be safely taken as opponents of police absolutism, who wish the equitable protection of citizen lives and rights.
Most people do not want a militarized society. There’s a strong social consensus for respecting the police, but it is based on a belief in the police officer as a steward-guardian, and the consensus should only hold where that belief is the truth. This belief must be based on evidence. And while the reaction of BLM and other police reformers to a given incident is sometimes inconsistent with the evidence, the bulk of the evidence tells us that police abuse of authority is a real thing, and that the cops are unfairly credited with good behavior much more than they are unfairly accused of bad behavior. The majority must act on its awareness of the evidence, if not nationally, then locally. It must act individually, and through such governments as it can influence, to enforce the social contract. Yes, officers, we will keep our promise to you, but you must keep yours to us. You must place our lives and rights ahead of your own, and in doing so — and only in doing so — you will earn the honors and rewards that have long been given to you.