-- Posted by Neil H. Buchanan
My latest Verdict column picks up on a point that Professor Dorf made in his Verdict column last week, which is that the recent police slowdown in New York City (which, thankfully, appears to be ending) exposes how vulnerable our civilian leaders might be to lawless actions by the people who have taken on the responsibility of enforcing the laws. After making that initial point, Professor Dorf's column mostly focused on the underlying dispute and the free speech issues surrounding the "tacit strike." My concern was in thinking in more detail about the consequences of what could amount to organized extortion: "You (Mayor de Blasio and any other civilians who are saying and doing things that we don't like) had better change your tune, or else bad things could happen to your city!"
I think that today's column says all that I wanted to say about the importance of civilian control of the police and military. Here, therefore, I will pick up on a related point, which ultimately ties into my discussion of "us versus them" mindsets in other professions beyond the police. Two Sundays ago, in what was overall an excellent op-ed column discussing the blue-versus-de Blasio dispute, Times columnist Nicholas Kristof used an analogy that, I suspect, enraged a fair number of people. (I do not read the comments boards on sites other than Dorf on Law -- even Verdict -- so I have not verified the outrage.) I want to think a bit more about that analogy here.
Former NYC Mayor Rudolph Giuliani has made his usual number of jaw-droppingly dishonest arguments during this dispute. Among the lesser of those statements was this: "I find it very disappointing that you’re not discussing the fact that 93
percent of blacks in America are killed by other blacks. We’re talking
about the exception here." Kristof responds: "How would we feel if we were told: When Americans are killed by Muslim terrorists, it’s an exception. Get over it" (emphasis in original). One can almost hear the angry screams: You're comparing cops to terrorists!?!?!? Of course, using the terrorism example against Giuliani is telling, given that he has made an entire post-mayoral career out of his response to a tragedy that, as a statistical matter, still (thank goodness) ranks very low on the causes of death that have ended Americans' lives.
We do not, after all, simply look at the top cause of death, address it until it goes away, and then move onto the next item on the list. We tolerate unbelievable numbers of auto-related fatalities, along with thousands of preventable deaths each year from obesity- and heart-related illnesses, to say nothing of deaths by bullets. The idea that it is not acceptable to be concerned about a statistically less likely problem is the worst kind of sophistry. (But again, Giuliani is saying things like: "We’ve had four months of propaganda, starting with the president, that everybody should hate the police." At this point, what else should we expect from him?)
But Kristof's point is important in a deeper way. There is something about terrorism that makes it important beyond its numbers. Put simply, the reason that we label some brands of violence terrorism in the first place is that it is designed to terrorize people. All you need is one horrible event in a major city (let's say Paris) with what is in other contexts (a day in Baghdad) a relatively low fatality rate, and the whole world takes notice. What makes acts of terror so disturbing is that they are designed to make it impossible for a person to feel safe. This, I think, is the same phenomenon that makes very low-probability events like earthquakes so scary for people. Knowing that the earth under one's feet can literally fall away is no small matter.
The point, therefore, is that police officers who violate the law -- and especially those who appear to target particular groups for harsh and often violent treatment -- undermine people's right to feel safe. In the 70's and 80's, the Philadelphia Police Department came under scrutiny (and ultimately was the subject of federal action) for widespread lawless behavior. I recall at the time that my sister, who worked in the city, told me at one point that if she saw someone walking toward her at night on the sidewalk, she felt unsafe -- but if she saw that it was a police officer, she felt even less safe.
What makes this so important is that we know that bad people can do bad things, and that there is only so much that we can do to minimize our likelihood of being harmed by criminals. But the one thing we ought to be able to know is that, if a police officer arrives on the scene, we will not be victimized. Even if we are doing something wrong (like selling loose cigarettes in an outer borough of New York City), we have a right to expect that the police who respond will not make matters worse.
This is also why, I think, we uniquely care about false imprisonment by the state, as opposed to the same thing being done by criminals. If one is being held against one's will by criminals, at least one can think: "I hope the police find me. Then I'll be safe." But if it is the police and other agents of the state who are the wrongdoers, then where is the hope?
Which brings me back to a point that I made in today's Verdict column. I noted there that professional insularity is hardly limited to law enforcement agencies. Judges, legislators, and even football players often act as if the rules of society do not apply to them. I did not mention medical doctors in the column, but the stories that I have heard suggest that many doctors talk openly among themselves about patients being "the enemy." The sense of grievance among doctors about being sued for malpractice -- "How dare you question my competence, when you couldn't even pass a Freshman science class!" -- is similar to complaints that we have heard recently about people supposedly not understanding how difficult it is to be a police officer, which then apparently means that we have no right to punish them when they violate the law.
The most telling comparison, however, is between abusive police officers and abusive priests. Again, the problem arises from the degree of trust that people place in the particular profession. A young boy (or, in some cases, girl) who was being sexually abused by a priest must have been thinking, "Who can I talk to about this to make it stop? This is God's assistant!" No one would believe the child, because of the social esteem in which the clergy is held. (When I was growing up as a minister's kid, people young and old told me that they assumed I would not do bad things. And I was not even the authority figure! Piety by association.)
The larger point, therefore, is that it is legitimate to expect more from people in whom great trust has been placed. As a member of a profession myself, I certainly know what it is like when people outside the profession say ignorant things, and I would resist efforts to impose what I view as unwise rules on me and my colleagues. The trust that has been placed in professors is profoundly important, but it is nothing compared to what we need to be able to expect from doctors, clergy, and especially law enforcement officers. It must be difficult to feel scrutinized all the time, but that is necessarily part of the job. Without it, power can be too easily abused.