Now is the perfect time to hold police accountable
At least a thousand people are shot and killed by the police each year. George Floyd, who died after Derek Chauvin held his knee on George’s neck for nine minutes, wasn’t one of them.
Philando Castile, on the other hand, was. He was killed — not murdered, technically, since the police officer responsible for killing him was acquitted — only seven miles away.
For those of us who live nearly two thousand miles from Minnesota, land of a thousand lakes and over five million of the nicest, most polite people we can imagine (since Minnesota is basically Canada, right?), it’s easy to lose track of the geography of the place and wonder why Minneapolis, of all places, is in flames. Two unjustifiable killings of black people — sorry, two officer-involved incidents during which death occurred while the decedent was black — at the hands of two municipal police departments less than eight miles from each other might have something to do with it. A history of excessive force complaints might have something to do with it as well. Arresting journalists and drive-by pepper sprayings, to pick two eminently unhelpful actions that took place after the protests started, certainly haven’t helped, either.
Nevada’s police chiefs and sheriffs, to their credit, at least talked about distancing themselves from the tactics employed by Minneapolis’ finest. Washoe County Sheriff Balaam shared a story about his son watching the death of George Floyd and asking if Washoe County’s deputies did that sort of thing as well. Nevada Highway Patrol Colonel Daniel Solow stressed that what happened to George Floyd went against both the training he received and the training he delivered. Reno Police Chief Jason Soto was clear that kneeling on someone’s neck for several minutes was unjust and wrong. Las Vegas Metro Sheriff Lombardo expressed how deeply disturbed he was by the death of George Floyd and how inconsistent the behavior of the officers watching his death were with the training and protocols observed by Metro.
Granted, none of Lombardo’s words prevented Metro from arresting journalists and setting a $1000 bail on everyone they arrested at Friday night’s protest, but at least he took a minute out of his week to say the right things on Twitter.
One notable exception, conspicuous in its absence, was the Sparks Police Department, which protects and serves the sixth-largest city in Nevada. This probably has more to do with incompetence than malice, however; despite having a new police chief for nearly a year, the Sparks Police website still offers a message from the previous chief. This is consistent with Sparks’ proud tradition of governing itself like it’s a small rural backwater, despite being a 115-year-old city with over 100,000 people living in it — a tradition I’ve complained about before. Chances are, Chief Peter Krall is every bit as horrified by what happened to George Floyd as every other chief and sheriff in Nevada. I just wish he’d tell someone.
Snark against my local municipal constabulary aside, talk is cheap. Actions are priceless. How do we stop talking about how police officers aren’t trained to sit on someone’s neck for nine minutes and start holding them accountable when three police officers fail to stop someone from doing exactly that because the perpetrator is wearing the same uniform they are?
Philosophically, this is an extremely important question. The moral basis of our justice system is that, if we are individually responsible for punishing crimes against us, we’ll be too lenient on ourselves and our friends and too harsh on those that hurt us. That’s why, in theory, we should have a public system of justice that is as impartial as possible — to overcome those biases. Trouble is, America’s public system of justice has never been impartial. It’s always been too harsh to poor people in general and people of color in particular and categorically refuses to punish police officers except under extreme political duress.
This is not a new problem. Nearly 30 years ago, the police officers that beat Rodney King within an inch of his life were originally acquitted by a mostly white jury. Hours after their acquittal, violent riots erupted in Los Angeles and several other cities throughout the country, including Las Vegas. After the riots, the officers were tried again, two of whom were convicted, this time in federal court.
Similarly, Derek Chauvin only faced arrest after the riots in Minneapolis began.
This highlights an uncomfortable truth — violent protests work, both for those participating in them and on those of us watching them from our couches. As market anarchist William Gillis, who’s participated in a violent protest or two, pointed out, non-violent protests are ultimately appeals to power. They assume that certain institutions can be reasoned with, which bolsters the perceived legitimacy of those institutions. Communities struggling with police forces that look little like them and routinely threaten their safety, however, aren’t interested in legitimizing the police — they want them gone. In that context, violent protests overcome the sense of isolation, weakness, and despair that living under an armed occupying power engenders by demonstrating seriousness and capability.
Burning down a police precinct, in other words, is like punching a bully in the mouth. Even if you lose the fight, it demonstrates that you’re no longer the sort of person willing to passively take your lumps.
As for the rest of us (to be clear, I am a comfortably middle-class white male, let’s not pretend otherwise), we might be more likely to identify with the managers of department stores, who we might have more in common with than your average police protester (though that’s open to debate this time around). However, as much as we might visualize our homes and businesses going up in flames and fret about uncontrolled property damage, most of us don’t see much justice in flogging anyone for several minutes, kneeling on someone’s neck for nine minutes, shooting mental health caretakers, or most of the other violent police behavior that’s brought to our attention by protestors (violent or otherwise), either. Consequently, though we might fixate more than we should on the occasional looting and obsess over how an “effective” protest should be organized despite having never attended one in our lives, we struggle to identify with the police officers that are behaving badly, too. This works to the protestors’ advantage — yes, we want fewer department stores to go up in flames, but we also want fewer people getting beaten, shot, and killed by police officers.
It’s just a shame it takes lighting a precinct building and a department store on fire for some of us to be reminded that this is still a serious problem.
Luckily, strange as it might sound, these protests are coming at a good time. Many of the issues that led us here are coming to a head, which means we face a rare window of opportunity to take meaningful action.
First, let’s start with qualified immunity.
Qualified immunity is a doctrine that allows public officials to escape accountability as long as they don’t violate rights that are “clearly established” in existing case law. Public officials aren’t even required to act in anything approaching good faith to enjoy this protection, as the Supreme Court decided in Harlow v. Fitzgerald. As the Supreme Court put it in Malley v. Briggs in 1986, “qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
Qualified immunity is why Jeronimo Yanez, the officer who shot Philando Castile, was acquitted and is also why Derek Chauvin only faces a third-degree murder charge. Since existing case law did not clearly — meaning, explicitly, in exacting legal detail — grant Philando Castile the right to drive with a firearm without being shot by a police officer, qualified immunity protected Jeronimo Yanez from violating that right. Similarly, since existing case law does not explicitly afford people the right to avoid having their neck sat upon by a police officer for nine minutes, qualified immunity is likely to protect Derek Chauvin from conviction as well.
The doctrine of qualified immunity, to be clear, was invented out of whole cloth and flies in the face of the very law that is supposed to hold public officials accountable. The Ku Klux Klan Act, part of the Civil Rights Act of 1871, was explicitly passed to hold public officials liable for abridging the rights of Americans. That remained the law of the land until, in 1967, the Supreme Court decided in Pierson v. Ray that past common law practices implied the existence of a “good faith and probable cause” defense for public officials. Since then, even the need for good faith or probable cause has been abandoned.
Fortunately, the Supreme Court seems to have decided that this year shall be the year they consider whether qualified immunity should still stand. There are at least 13 qualified immunity cases being considered in conference; this strongly suggests that at least one of them will ultimately be heard and decided upon.
Next, let’s look at police budgets.
Police budgets make up the largest portions of several municipal budgets throughout Nevada. Over 40 percent of Sparks’ budget, 36 percent of Reno’s budget, and over 25 percent of Las Vegas’ general budget is spent by their police departments, more than any other department or municipal function. This is money that could be spent on mental health, caring for the homeless, paving roads, mass transit, affordable housing, or simply returned to taxpayers as lower sales tax rates but is instead being spent on military surplus equipment, paid administrative leave for misbehaving officers and fully funded retirements for 50-year-old officers.
Given the currently disastrous state of municipal and county budgets throughout the country, there’s only one way our cities and counties will be able to lower expenses to match decreased tax revenue without sacrificing needed social services and that’s by openly attacking the biggest item in their budget. This, incidentally, is why groups like Critical Resistance, which seek to abolish the prison industrial complex, oppose body cameras, community policing, more training, and civilian review and oversight boards — each of those measures reinforces the notion that increasing police resources increases safety. They also increase the financial burden upon our communities.
Instead, Critical Resistance recommends suspending the use of paid administrative leave for police officers under investigation, withholding pensions from officers involved in excessive force complaints, requiring police officers to be financially liable for misconduct (preferably by requiring each officer to take out a personal liability insurance policy), capping overtime, withdrawing participation in police militarization programs, and just having fewer police officers in general.
To do that, however, we need to take on police unions.
Unlike a lot of libertarians, I’m not particularly opposed to unionization in general, even for government employees, as long as the choice to associate with a union (or not) is voluntary on the part of the employee. Way I see it, if investors get to choose to collectively bargain as a corporation, there’s no reason employees shouldn’t get to choose to collectively bargain as well. Besides, public sector unions were instrumental in making patronage far less common in the United States than it used to be. I, for one, wouldn’t want to live in a community where police officers are routinely replaced by political supporters after each mayoral election.
Having said that, police unions are far more powerful and far more pernicious than they should be. Either they need to start recognizing that their members exist to serve the community and conduct themselves accordingly or they need to be abolished.
This, again, is not a new complaint. Even those on the political left, who are usually sympathetic towards unions, have openly called for the abolition of police unions. Police union contracts in some cities throughout the country erase misconduct complaints from officers’ records and allow officers to use sick or vacation time while they’re on suspension. Thanks to these contracts, we live in a country where we can get a convenience store clerk fired at-will merely for looking at us funny, but can’t discipline, much less fire, a police officer until there’s a body under his neck.
Police unions also frequently contribute heavily to various political campaigns. This, in effect, allows police unions to select who they’re negotiating with and ensure that the politicians writing their contracts are beholden to them, not to the communities they’re ostensibly supposed to be serving. This is entirely inappropriate — police unions and police officers more generally need to be held to a higher standard of political neutrality. The Hatch Act, which strongly regulates federal employee participation in political activity, might be an acceptable template for police officers and other departmental employees to be required to follow.
Finally, journalists need to stop covering police activities the way small town sportswriters cover football teams. Perp walks and headlines written in the past exonerative tense are public relations exercises, not news. Those of us that don’t experience the day-to-day police brutality others experience in their communities are ill served by information sources that tell us all is peaceful and well until it’s undeniably impossible to pretend otherwise. If we want our favorite department stores and expensive taxpayer-funded precinct buildings to remain standing, we need to address problems with police conduct before they become impossible for others to endure, not after there are bodies in the streets.
The past few months have pushed us all into a corner. Though there are a lot of disadvantages in that, one advantage is that we are now forced to act. We can’t afford at least a thousand dead Americans at the hands of police violence each year. We can’t afford to continue paying police officers with over a dozen excessive force complaints on their record. We can’t afford judicial doctrines that insulate public officials from accountability. We can’t afford throwing municipal budgets at military hardware. We can’t afford to push our neighborhoods to the brink of violent insurrection in misguided attempts at securing law and order.
So, enough talking — let’s act.
David Colborne has been active in the Libertarian Party for two decades. During that time, he has blogged intermittently on his personal blog, as well as the Libertarian Party of Nevada blog, and ran for office twice as a Libertarian candidate. He serves on the Executive Committee for both his state and county Libertarian Party chapters. He is the father of two sons and an IT professional. You can follow him on Twitter @DavidColborne or email him at [email protected].