Something has changed. The murder of George Floyd in Minneapolis as an event is distinct from its all too common predecessors in that its sheer clear cut brutality has altered the debate from a question of whether to hold the police accountable, to a matter of how change can be brought about.
Many dear friends and prominent figures on the left have proposed abolishing or defunding police departments, but I fear that a lengthy word salad about employing more social workers to overcome the root causes of crime does not provide us with the antidote to our current dilemma.
I support abolishing the police and the entire state for that matter. My ideal for personal protection and rights enforcement is best presented in The Machinery of Freedom by David D. Friedman. Sadly, I am forced to accept that an anarchist society is unlikely to transpire soon.
There are, however, clear steps that can be taken to improve the state of policing in the United States, steps that have been scarcely discussed in the discourse around police violence.
The first area of reform has been a brainchild of American libertarians for quite some time; ending qualified immunity (QI). QI is a piece of Judge made law stemming from the Supreme Court case Pierson v. Ray in 1967.
QI effectively sets a higher bar for legally enforceable action against a police officer so long as they possessed a ‘reasonable belief’ that their actions were not illegal and that action does not constitute an egregious violation of clearly established Federal Law.
The flaws of QI have united observers and jurists from across the ideological spectrum with arch-conservative Justices Clarence Thomas and the late Antonin Scalia raising objections to its judicial origins with liberal firebrand Sonia Sotomayor expressing her concern at the regularity of police avoiding accountability for their actions.
QI enshrines in the law severe deference to Government officials. Without rigorous enforcement of statutory and constitutional rights, such rights can only exist on paper. From the minutiae of an illegal traffic stop to the decision to kill an unarmed individual, QI ingrains a lack of accountability into the police psyche which enables them to go about their authoritarian actions with impunity.
Such deference permeates through every fold of the system. In the 2019 case of former police officer Amber Guyger’s murder of African-American Botham Jean, not only did the officer receive the extremely lenient sentence of ten years in prison, but was given a hug and had words of comfort from the Bible recited to her by the judge.
At all levels, QI dilutes individual rights against the police by failing to enforce them in court, while constantly reinforcing the principle that the police are not restrained by the law on an equal footing to citizens. Rep. Justin Amash (L-Mi) has submitted the first piece of tri-partisan legislation with Rep. Ayanna Pressley (D-Ma) to end qualified immunity, while libertarian lawyer Clark Neily leads the Cato Institute’s charge to test the qualified immunity principle in front of the Supreme Court.
The push for reform does not stop at qualified immunity. The actions of police unions also contribute to the culture of officers not being held accountable for their actions.
In representing their members, unions help with legal proceedings including a heavy emphasis on the usually fool-proof qualified immunity defence. As with most unions, on the surface, they just defend the rights of their members, but a deeper dive reveals more sinister tactics.
Police unions foster a type of omertà within their ranks by coaching officers on how to write favourable reports on the actions of colleagues who are under investigation. With this comes the idea that allegiance to the fellow cop is held to be more virtuous than the truth.
With over $3 million spent on political campaigning and lobbying, unions have harnessed public opinion and legislative persuasion to make it onerous to fire a police officer, leading to many instances of members being rehired months after being dismissed for wrongdoing.
If the state confines their legal recognition of the unions to wage negotiations and only recognises unions which put stringent independent oversight of their actions in place while clamping down on practices such as scrubbing the records of their members, then the power of the union to protect bad cops becomes diluted.
The ultimate licence for unrestrained police action is their monopoly. Like any monopoly, the police know that their fundamental existence is not threatened by the failure to do what is demanded of them by the public.
Many of us will have seen the distressing viral video of several black store owners calling the police as their shop was being looted, only for the police to detain them.
In a competitive property protection market, companies are contracted by property owners and only exist to serve that purpose, whereas the police serve various competing interests and are biased to some over others. If the company makes an error, the customer can end their association with the police, and they would be lucky to get a reluctant apology.
Purchasing the services of a private company should also be a tax-deductible expenditure so the police are aware that their failures will impact their budget and ultimately their jobs.
In my view, these three steps would go to the heart of the maladies that infect many police departments in America. Each proposal has behind it the idea that the police’s extremely privileged legal position must be checked and reformed to return them to their rightful place as public protectors and servants.
If put in place alongside wholesale sentencing reform, the abolition of ‘no-knock’ warrants, regulation of chokeholds, the end to victimless crime statutes and better training for officers, then America will have gone some way to atoning for the victims of its police forces.