The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The brutal recent killing of African-American George Floyd by a Minneapolis police officer has sparked outrage at police abuses, and led to rioting and looting in many cities around the country, as well as peaceful protests. It's understandable if many people—particularly minorities—feel a sense of anger, frustration, and hopelessness in the wake of these events, which come in the midst of a terrible pandemic. I sometimes feel that way myself.
But there is much that can be done to curb police abuses. The task is difficult, but far from hopeless. On the other hand, rioting and looting are not only wrong in themselves, but likely to have counterproductive effects.
I. What Can be Done
All too often, police get away with brutal treatment of civilians, particularly poor minorities. The problem is not that police officers are unusually bad people. It's that they have bad incentives, under which they are rarely held accountable for abuses. Those incentives can and should be altered.
An important first step would be to get rid of the legal doctrine of "qualified immunity," under which law enforcement officers are immune from suits for violating citizens' constitutional rights unless the officers' actions violate "clearly established" law. The Supreme Court interprets the term "clearly established" so narrowly that officers routinely get away with horrendous abuses merely because no federal court in their area has previously decided a case with essentially identical facts. Recent examples include stealing $225,000 from civilians and shooting a 10 year old boy in the course of an attempt to shoot the family dog (who posed no threat to the officer).
Qualified immunity is not required by the Constitution or even by a federal statute. It is a purely judge-made doctrine made up by the Supreme Court itself in a misguided effort to protect law enforcement officers from excessive litigation. University of Chicago law professor and Volokh Conspiracy co-blogger Will Baude explains why the doctrine lacks any valid legal basis in this excellent article.
The Court is right now considering taking several cases whose consideration could lead to the abolition or at least the narrowing of qualified immunity. Both Justice Clarence Thomas, the Court's most conservative member, and Justice Sonia Sotomayor, the most liberal, have been severely critical of qualified immunity. There is a real chance they can persuade at least three of their colleagues to take the same view.
Rolling back qualified immunity will not put an end to all police abuse. But it will make it possible to hold police accountable in court for egregious violations of civil rights, which in turn will alter their incentives.
Co-blogger Jonathan Adler rightly warns that state and local governments might respond by indemnifying police officers for the damages they have to pay in such cases. But even if that happens, it would still be a step in the right direction. Indemnification costs money that many local governments will be loathe to pay. They will therefore have an incentive to crack down on abusive officers, particularly repeat offenders who routinely force authorities to pay out large sums to settle claims.
As Adler also explains, empirical research shows that impunity for police abuses is often promoted by police unions. State and local governments should consider banning police unionization, or at least curbing unions' powers by, for example, eliminating disciplinary issues from the list of matters that are subject to collective bargaining. Whatever the merits of public-sector unions in other contexts, they create too much of a conflict of of interest in the case of employees who often literally wield the power of life and death over civilians.
Abolishing police unions or even limiting their power will not be easy. But progress is possible if liberal civil liberties advocates can work together with conservatives who dislike public sector unions more generally.
Police abuses can also be curbed by rolling back—and eventually abolishing—the War on Drugs. Many of the worst police tactics and most dangerous confrontations with civilians (especially minorities in urban areas) are products of the War on Drugs. In his important book The Rise of the Warrior Cop, Radley Balko shows how the War on Drugs has been a major driver of the militarization of police, and of hyper-aggressive tactics that routinely lead to violence and abuse.
The recent trend towards legalization of marijuana in many states is a good start. We should build on that and begin cutting back on the rest of the War on Drugs, as well. In 2011, the NAACP called for an end to the War on Drugs because it causes great harm to minority communities. Police abuse is a major part of that harm.
Finally, we can also reduce police abuse and improve relations between law enforcement and minority communities by curbing the widespread practice of racial profiling. A 2019 Pew Research Center poll found that some 59% of black men and 31% of black women say they have been unfairly stopped by police because of their race.
Almost every black male I know can recount experiences of racial profiling by law enforcement. Admittedly, the people I know are not a representative sample. But given that I am a law professor, my African-American acquaintances are disproportionately affluent and highly educated. Working-class blacks likely experience racial profiling even more often.
If you don't trust survey data or take the word of my friends and acquaintances, take that of conservative Republican African-American Senator Tim Scott, who has movingly recounted multiple incidents in which he was racially profiled by police. Even being a powerful GOP politician is not enough for a black man to avoid such mistreatment.
It is not hard to see how racial profiling increases the risks of violence between police and racial minorities, and more generally breeds hostility between the two groups.
Reducing racial profiling is a very difficult task. In many cases, it is hard to tell whether it really occurred or not. The issue likely deserves a post of its own, which I hope to find time to do in the future.
For now, I will only emphasize that this is an issue we cannot afford to ignore. This is particularly true for conservatives who—rightly—advocate color-blind government policies in other contexts. For many years, I have repeatedly argued that color-blindness advocates on the right must not turn a blind eye to racial profiling in law enforcement. If you truly believe that government should not discriminate on the basis of race, you cannot tolerate a glaring exception to that principle when it comes to those government officials who carry badges and guns, and have the power to kill, injure, and arrest people. Otherwise, your position will be glaringly inconsistent, and many will suspect that your supposed concerns about discrimination only arise when whites are the victims, as in the case of affirmative action programs.
The reforms described here may not be easy to achieve. But they are feasible. Qualified immunity and the War on Drugs have already come under serious challenge, and there is room for plenty of additional progress.
We can also learn from the increasingly successful campaign to curb abusive asset forfeiture, the practice under which law enforcement can seize the property of (often innocent) civilians -a practice that, like police brutality, disproportionately harms minorities and the poor. Thanks to the efforts of a cross-ideological coalition of reformers, including libertarians, liberals, and even some conservatives, many states have enacted reform laws, and courts have begun to crack down on the practice. Much remains to be done to fully address the problem of asset forfeiture abuse. But the progress achieved so far can be a model for other efforts to curb law enforcement abuses.
II. Why Rioting is Not the Answer
Much can be done to roll back abusive law enforcement practices. The ideas described above are far from exhaustive. But one tactic that must be avoided is the kind of rioting and looting that has occurred over the last few days. Such actions are not only wrong in themselves, but also likely to be counterproductive.
Most of the damage caused by rioting is inflicted on innocent people who are in no way responsible for police abuses. Destruction and looting of stores and other businesses not only hurts the owners and employees of those enterprises, but also impoverishes the broader communities of which they are a part. Violence and violation of property rights reduce investment and economic development, which predictably exacerbates the poverty of minority inner-city neighborhoods. The negative economic effects can persist for many years.
It may be tempting to say that rioting and other similar violence is justified if you are doing it in the name of a just cause. But even people with legitimate grievances must still observe moral limits on tactics they use to pursue them. Ignoring this principle is a recipe for disaster.
Many of the worst atrocities in world history were perpetrated by groups who themselves had legitimate grievances. Soviet communists had legitimate complaints about the injustices of czarist Russia. Their disregard for moral constraints still contributed to mass murder on a horrific scale. German nationalists in the 1920s and 30s had legitimate grievances about the injustices of the Treaty of Versailles. That in no way justifies what they did in response. Being a victim of injustice cannot be a license to perpetrate injustices on others, especially people who did not perpetrate the wrongs you suffered.
Obviously, currently ongoing riots are nowhere near as bad as the actions of the Nazis and communists. But the same general principle applies: we should be wary of perpetrating new evils in the name of addressing the old.
It is admittedly possible there are situations where committing a wrong is the only way to address an even greater injustice. But this is not such a case. There are more constructive ways to curb police abuses. Moreover, rioting is likely to make the problem worse, rather than better.
Rioting and other violent racial protests in the 1960s not only failed to curb police abuses, but actually boosted support for "tough on crime" politicians who advocated giving cops more of a free hand. When white swing voters see riots on TV, many of them react by supporting harsh tactics to restore "law and order." Such reactions may be wrong. But they are predictable and difficult or impossible to avoid.
In 1968, Martin Luther King, Jr. warned that "riots are socially destructive and self-defeating" and that, "[e]very time a riot develops, it helps George Wallace." Today, they are likely to give a boost to Donald Trump and other politicians who support cruel law enforcement tactics. We would do well to heed King's warning. Pursuing reform by peaceful means is both more just and more likely to be effective than resorting to violence against innocent people.
UPDATE: I have made a few small additions to this post.