ACLU attorney Carl Takei told the New York Times that police departments that permit “chokeholds try to differentiate between cutting off the flow of blood, which renders someone unconscious, and cutting off the flow of oxygen, which is deadly.” This dicey distinction often goes amiss, as in 2014 when Eric Garner was killed by a New York City policeman’s chokehold.
Such killings would very likely not occur without the sense of impunity conferred on police in much of this nation. Sen. Amy Klobuchar, was the chief prosecutor for Hennepin County (including Minneapolis) from 1998 to 2006. Klobuchar, who was nicknamed “KloboCop” by detractors, “declined to bring charges in more than two dozen cases in which people were killed in encounters with police,” while she “aggressively prosecuted smaller offenses” by private citizens, the Washington Post noted. Her record was aptly summarized by a headline early this year from the Twin Cities Pioneer Press: “Klobuchar ramped up prosecutions, except in cases against police.”
Minnesota cops also benefit from their state’s so-called police officer’s bill of rights, which impedes investigations into killings by police and other police misconduct.
Outrage over police abuses have become a regular occurrence in modern American life. In 1994, the ACLU and the National Rifle Association jointly called for President Bill Clinton to appoint a national commission to investigate “lawlessness in law enforcement.” In 2014, after violent protests over a police shooting in Ferguson, Missouri, Attorney General Eric Holder declared that “we must seek to rebuild trust between law enforcement and the local community.” But unjustified police shootings usually spark brief uproars and promises of reform — but no fundamental rollback of law enforcement’s lethal power and prerogatives.
Much of the media coverage quickly framed Floyd’s death as another example of systemic racism by police. There are many bigoted cops who have unjustifiably shot or otherwise abused innocent black citizens, but people of all races, creeds, and colors are at risk from lawless lawmen. As the Washington Post noted, “In 2017, a Minneapolis police officer shot and killed Justine Damond, an Australian woman who had called police about what she believed was a possible sexual assault near her home.” The Montgomery County, Maryland, Police Department continues to refuse to provide camcom videos or any other evidence on its predawn no-knock raid in Potomac, Maryland, in which police are reported to have shot 21-year-old Duncan Lemp as he lay sleeping in bed in his parents’ house. The Lemp case has been largely ignored by the nation’s media (except for my articles at the American Conservative).
Focusing on racial bias also risks obscuring the fundamental problem: the Supreme Court has effectively given police a license to shoot, pummel, or falsely arrest ill-fated citizens across the nation.
In the wake of the Civil War, freed southern blacks were terrorized by lynch mobs and other attackers. Congress responded to Ku Klux Klan violence against freed southern blacks by enacting the Civil Rights Act of 1871 to authorize lawsuits against any person acting “under color of” law who causes a “deprivation of any rights … secured by the Constitution and laws.” But in a series of decisions beginning in 1967, the Supreme Court gutted that law by permitting police and other government agents to claim they acted in “good faith” when violating citizens’ rights. In 1982, the Supreme Court granted government officials immunity unless they violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”
Regardless of century of court rulings that clearly demarcated citizens’ constitutional rights, the Supreme Court decided government officials deserved “qualified immunity” unless a prior court case had condemned almost exactly the same abusive behavior. Federal Judge Don Willett declared in 2018 that “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.”
The Supreme Court effectively added an asterisk to the Constitution that expunged much of the Bill of Rights. In a 2018 case absolving a reckless shooting that killed a motorist, Justice Sonia Sotomayor angrily dissented, saying that the Court’s decision “tells [police] officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
How does the Supreme Court’s idealism on “good faith” G-men play out in the real world? Courts have “approved qualified immunity for cops who allegedly shot people without cause, sicced a dog on a man who was surrendering, tased a driver who was stopped for failing to buckle his seat belt, and ordered a 17-year-old boy to disrobe and masturbate so they could take pictures of his erect penis,” Reason columnist Jacob Sullum reported in 2019. That year, a federal appeals court bizarrely granted qualified immunity to Fresno, California, police officers who stole $225,000 during a search of two businessmen.
Sen. Lindsey Graham (R-S.C.), chairman of the Senate Judiciary Committee, said in May that his committee would hold a hearing on police violence to analyze “why does this happen, how often is it, is it an aberration.” Graham said the video of Floyd’s death is “hard to watch, and I just imagine how many people died without videos.”
But Congress has, as usual, been asleep on the job. As Dan Alban, an Institute for Justice attorney and the nation’s most effective litigator against asset-forfeiture abuses, observed, Congress could pass legislation “clarifying that there is no qualified immunity” for civil-rights lawsuits against state and federal officials.
The tip of the iceberg
But the problem goes far beyond qualified immunity. Politicians criminalize practically everything in daily life and then tell police to “be nice” — or maybe mandate that cops attend sensitivity training. The COVID-19 pandemic has been accompanied by a blizzard of new mandates and prohibitions that further empower police. A video went viral earlier this month of a New York Police Department officer tackling and pummeling a young black man who was suspected of violating new dictates on social distancing. One wonders whether there are a hundred such instances of idiotic brutality for each one that trends on Twitter.
“Defund the Police” is the latest rallying cry for protesters in many cities across the nation. Few protesters appear to favor the sweeping repeals that could take tens of millions of Americans out of the legal crosshairs.
How many of the “Defund the Police” protesters would support repealing mandatory seatbelt laws as a step toward reducing police power? In 2001, the Supreme Court ruled that police can justifiably arrest anyone believed to have “committed even a very minor criminal offense.” That case involved Gail Atwater, a Texas mother who was driving slowly near her home but, because her children were not wearing seatbelts, was taken away by an abusive cop whose shouting left her children “terrified and hysterical.” A majority of Supreme Court justices recognized that “Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case” — but upheld the arrest anyhow. Justice Sandra Day O’Connor warned that “such unbounded discretion carries with it grave potential for abuse.”
Unfortunately, there are endless pretexts for people to be arrested nowadays, because federal, state, and local politicians and officials have criminalized daily life with hundreds of thousands of edicts. As Gerard Arenberg, executive director of the National Association of Chiefs of Police, told me in 1996, “We have so damn many laws, you can’t drive the streets without breaking the law. I could write you a hundred tickets depending on what you said to me when I stopped you.”
What about repealing state laws that make parents criminals if they smoke a cigarette while driving little Johnny or Alison to soccer practice? What about repealing the federal law that compels states to criminalize anyone drinking one beer in his car — or, better yet, repealing the federal law that compels states to raise the age for drinking alcohol to 21? Or would today’s enraged reformers prefer to take the risk of cops’ beating the hell out of any 20-year-old caught with a Bud Light?
Would feminist zealots calling to “Defund the Police” be willing to tolerate the legalization of sex work? That would mean they could no longer howl about vast “human trafficking” conspiracies exploiting young girls every time an undercover cop is illicitly groped by a 58-year-old Chinese woman in a massage parlor.
Some Black Lives Matters activists are calling for a ban on “stop and frisk” warrantless searches for drugs, guns, or other prohibited items. But some “Defund the Police” activists also favor government prohibitions of private firearms. It is as if they were seeking to formally enact the old slogan, “When guns are outlawed, only outlaws will have guns.”
Many “Defund the Police” advocates presume that poverty is the cause of crime and that shifting tax dollars from police budgets to social programs and handouts will automatically reduce violence. The Great Society programs launched by Lyndon Johnson vastly increased handouts on a similar assumption. Instead, violent crime skyrocketed, especially in inner cities where dependence on government aid was highest.
“Defund the Police” demands are already being translated by politicians into a justification for additional spending for social services or the usual sops. In Montgomery County, Maryland, police chiefs issued a statement announcing that they were “outraged” over George Floyd’s death and then pledged to “improve training in cultural competency for our officers.” Elsewhere, politicians and police chiefs are talking about relying more on mental-health workers to handle volatile situations. Radio host Austin Petersen predicted that the George Floyd protest “reforms” would result in “more social programs meant to give jobs to liberal white women.” Author and filmmaker Peter Quinones deftly captured the likely reality with a meme where Minneapolis police were renamed the Tactical Social Workers and still looking hungry to kick bad guys.
Police have too much power because politicians have too much power. There is little chance that the George Floyd protests and riots will reverse the criminalization of daily life. As long as cops have pretexts to harass and assail millions of peaceful Americans every day, outrages will continue. Until protesters realize that the problem is Leviathan, not the local police chief, oppression will continue.
This article was originally published in the November 2020 edition of Future of Freedom.