Legislative Paternalism: How Toxic Laws Endanger Police and Civilians Alike


Less than a year since the deaths of Michael Brown and Eric Garner, police officers in this country are once again under national fire. In the wake of those earlier tragedies—which sparked destructive riots, mass protests, and even saw officers violently ambushed or murdered in cold blood—the death of Freddie Gray in Baltimore poured gas on the fire of public dissent. Regularly referred to as “callous,” labeled “anti-black,” and likened to the “Gestapo,” police today are taking a public beating.

Although reliable statistics remain difficult to come by, there’s no doubt that unjustified police brutality does occur. When it does, the officers responsible absolutely deserve condemnation and punishment for abuses tragically paid for in shattered human lives.

But there’s something missing from a perspective that pins the blame for that cost squarely on the shoulders of law enforcement officers.

Police officers are trained to be good at a very specific job: law enforcement. Murderers, thieves, kidnappers, and rapists pose a real threat to all of us, and it’s the job of police to enforce the laws that ban such savage, dangerous behavior. When criminals threaten innocent lives, officers must make split-second decisions about how to wield deadly force. It’s therefore crucial that police be well-enough trained and legally empowered to wield this force only in retaliation to the threats that criminals pose. But make no mistake: because their job is to protect people’s lives, officers must still be trained to wield potentially deadly force in response.

Understandably, reformers have focused on the need for procedural changes to better hold officers accountable for their conduct. For instance, recall that Officer Pantaleo killed Eric Garner by the use of a chokehold administered on suspicion that Garner was selling untaxed cigarettes—a criminal offense. Had Pantaleo simply followed department rules, some noted, he would never have administered that chokehold, and Garner would still be alive today.

But chokehold or not, Pantaleo’s enforcement would nevertheless have involved some other physical means. Even if there are legitimate procedural concerns about how officers like Pantaleo engage with suspected criminals, adjusting the dial on the amount of force used can’t change the reality that laws must nevertheless be enforced, and that mistakes will sometimes be made. If we dial back the amount of force the police can use, we at some point run the risk of making them impotent bystanders to lawlessness.

The real problem—for officers and civilians alike—arises when procedures designed for dangerous criminals are applied to peaceful persons. What should shock us about a case like Eric Garner’s—or Tarika Wilson’s, or Kathryn Johnston’s, or Derek Cruice’s, or Bounkham Ponesavanh’s—is that Garner wasn’t hurting anybody. Had Garner just stabbed a man before resisting arrest, a chokehold might have been appropriate. But there was a glaring discord between Garner’s fundamentally peaceful sale of cigarettes, and the violent chokehold that brought him to “justice.” That discord arose, not as some claim, from a problem with chokeholds per se, but from the fact that a law authorized an officer to exercise any force at all in dealing with Garner.

When the law is used paternalistically, to rule peaceful people like Garner, it should come as no surprise when enforcement itself becomes corrupted. While a proper legal code protects peaceful citizens exclusively from dangerous acts like murder and theft, paternalistic law goes beyond this. The hallmark of paternalistic law is that it attempts to use force against citizens for their own good or to enforce conventional morals. Because it creates a series of victimless crimes and seeks to nanny the choices of the perpetrators themselves, paternalism opens the door for police to engage in a litany of abuses not otherwise permissible. Nowhere is this clearer than with the War on Drugs.

As David Simon notes, “[p]robable cause was destroyed by the drug war.” Because of the War, police are given greater incentive and leeway to stop citizens randomly in the streets, to pry into their pockets, to search their cars, to break down their doors and to search their homes—all on suspicion of carrying a few leafy greens. Where the standard for police-citizen contact should have been the probability that a suspect was doing harm to others, paternalism reduces it to the probability that a suspect isn’t living the life that the law commands him to live. Paternalism makes nagging tyrants of the men that should have been our protectors. It’s an atrocious sham—a complete mockery of law itself.

Predictably—just as occurred during Prohibition—when the law levies the penal code against peaceful persons in this way, it also unnecessarily endangers the lives of all involved. Paternalism forces those who might previously have been peaceful (albeit, flawed) members of society to take security into their own hands. Others, like those seeking to transport and sell large quantities of drugs, get pushed into a deviant criminal underworld where police are the enemy, rather than guardians. It’s no surprise that the greater the incentive for private citizens to take security into their own hands, the higher the chances that police get harmed in the line of duty, and thus the greater the incentive for officers to further militarize enforcement. Asking officers to enforce paternalistic laws exhibits a profound disrespect for their lives and safety.

What paternalism does to well-meaning police is especially tragic. While drug pushers don’t force us to smoke blunts, police officers can and must enforce the law against all who engage in such conduct, and by coercive means. Not only does this force officers to risk potentially life-threatening physical altercations (should their fugitives resist arrest or retaliate), it also forces those who signed up “to serve and protect” to act in direct contradiction to that purpose. In so doing, it bastardizes the good-will of those who want to protect, while tragically incentivizing the lowest type of people—those who seek power over others—to sign up for a chance to rule.

Paternalism thwarts the very purpose of a proper legal system: to protect us from harm by others. When police dedicate resources to hunting down mere vices, they’re necessarily not focused to that extent on catching truly dangerous criminals. Neglecting dangerous criminals to persecute peaceful persons is a surefire way for police to become public enemy number one. When the public loses trust in officers, enforcing the law becomes vastly more difficult—just ask the Baltimore police.

If we recognize the root of the problem, we’ll see that it doesn’t have to come to this. Law enforcement is a two-part endeavor: police enforce the laws—that legislatures enact. While officers like the one who killed Eric Garner deserve to be punished, legislatures deserve primary blame for commanding him to engage a peaceful person in an inherently violent way.

Lawmakers aren’t our rulers. Their job is to pass laws designed to protect us from those who would try to rule us—the murderers, the thieves, the kidnappers, the rapists. Just as legislators depend on police to get the job done when they make murder illegal, so too do officers depend on lawmakers to pass laws that are worth the risk of enforcing. When that dynamic is compromised by laws authorizing officers to pull guns on peaceful persons, police are put in lose-lose situations. Officers must then choose between risking their lives to harm the citizens they swore to protect, and turning their backs on the laws they swore to enforce. No officer should ever have to make that choice.

The gravity of the power and responsibility with which we entrust officers lends itself to impassioned reactions to their victories, but also to their mistakes. Officers who halt killing sprees are praised as heroes, while officers who gun down innocent men become, in an instant, villains. But police aren’t philosophers or jurists. While we can rightly expect that they think critically about their jobs and refrain from wanton abuse, we can’t expect officers to “pause and reflect” on the justice of every law they enforce and still remain effective. The whole point of their job is not to pick and choose some laws to enforce, but to enforce the law—and to enforce it well.

Insofar as lawmakers deviate from their purpose of protecting us, they make tyrants of the men that should have been, and swore to be, our guardians. In so doing, they endanger the lives of officers and civilians alike. We can tinker with enforcement procedure all we want—and we ought to, until we get it right. We can blame and punish police officers all we want—and we ought to, until they get it right. But no amount of procedural justice can cure the abuse implicit in fundamentally oppressive laws. And letting legislatures off scot-free grants them license to continue corrupting law enforcement at its core. That’s a dangerous way to treat our police officers, and quite a vile evil to unleash on our fellow citizens.

Creative commons-licensed image from Wikimedia.

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