Editorial Notes on Police Brutality


A deadly pandemic originates in Asia and sweeps around the globe, killing more than 100,000 Americans. A successful manned space mission briefly unites a nation with a sense of wonder. Police and National Guardsmen face off against protesters demanding racial justice and suppress riots in city streets. The military is tied up in unwinnable foreign entanglements, a culture war rages, and electoral politics is a dumpster fire.

It is 1969.

Reason magazine is a baby, just over a year old, and editor Lanny Friedlander is wrapping up the November issue. It is a small operation, so he has also written most of the contents.

The question he poses on the cover is "The Cops: Heroes or Villains?" He sketches the landscape: "After each recent mass police action that shed blood—People's Park, Chicago, Harvard, Columbia—debate begins anew. 'Liberals,' 'conservatives,' 'radicals,' 'lawnorder Democrats' argue endlessly: were or were not the cops brutal?"

More than 50 years after Friedlander published his "editorial notes on police brutality," you can add to that list George Floyd's death in Minneapolis with a knee on his neck, Eric Garner choked on a New York City street corner, Breonna Taylor shot in her Louisville home during a drug raid gone wrong, and thousands of clashes between law enforcement and private citizens in the nationwide protests that followed. It is the same argument, with the same factions, in 2020.

"As is so often the case," Friedlander writes ruefully, "it is the New Left that comes closest to the truth, if only accidently. It is absurd, they say, to argue whether or not the police were brutal in any particular instance because the system is brutal by definition. As the system's agents of enforcement, the police cannot but be brutal."

When it comes to police misconduct, there has been enough talk of "bad apples" in recent years to squeeze out gallons of cider. But the problem is not primarily the quality or character of the police officers themselves—though there are certainly police officers who lack character. It's the damaging and backward incentives created by the system in which they operate.

The best way to minimize police violence is to maximize freedom and individual responsibility. (It is not, as the left in Friedlander's time and our own might prefer, to abolish capitalism.) The reforms that he gestures toward—and that Reason has gone on to advocate in the decades since—are stunningly similar to many items on the wish lists of the Black Lives Matter protesters and their allies who have taken to the streets to protest violence and racism following Floyd's death. But they also reflect the concerns of the entrepreneurs and homeowners who fear the destruction of their property and the threat to their safety posed by the protesters, or at least by the opportunistic looters and revolutionaries who accompany them, as well as by the state.

At the core of Friedlander's argument is the notion that law enforcement officials—like everyone in a free society—must be answerable for their actions. "As it stands in America today, the police aid in the trampling of rights on such a massive scale that there is hardly a word sufficiently descriptive," he writes. "Limited liability? The price of retribution due to the victims of the crimes committed by police on any single day would be beyond calculation, yet not only do these crimes go undenounced (for the most part), and the perpetrators, police and politicians, unpunished, but, even worse, the victims are forced through taxes to finance the operation and salaries of the criminals."

This tracks neatly with several of the most promising avenues for reform in 2020. The first is the elimination of qualified immunity, a legal doctrine that shields police and other government officials from liability in civil rights lawsuits unless the illegality of their specific actions was "clearly established" at the time of the offense.  At press time, the only Libertarian Party member of Congress, Michigan Rep. Justin Amash, had just introduced a bill to eliminate that protection. He was joined in the effort by one of his most progressive colleagues, Rep. Ayanna Pressley (D–Mass).

"The brutal killing of George Floyd by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct," they wrote. "This pattern continues because police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve."

"Several of the things that allow police to stand above the law," Friedlander goes on, "include the secrecy and tightknit quality of the police force, the personnel rules that characterize departments, and the comparative homogeneity of outlook among police (due to preselection, attrition, and assimilation)." The undue influence of police unions on the disciplinary process for officers accused of misconduct, and on the political officials who often have the final say in such matters, is a major and hitherto underappreciated barrier to reform. Breaking the police unions would align the incentives of officers better with the citizens they are meant to serve.

We must seriously revisit the scope of the powers and duties of police. While the movement to defund police forces is the simplest and most symbolic of these notions, the nitty-gritty list offers more to chew on: terminating 1033, the program that funnels surplus Department of Defense equipment to local police departments; eliminating techniques such as the chokehold from the police playbook; requiring officers to report inappropriate use of force by their colleagues.

One popular reform, mandatory wearable cameras, has failed to deliver on its promise. Video is a powerful medium, but data from districts where bodycams have been tried show their existence doesn't seem to prevent violence, and the video itself is often contested. Friedlander anticipated this critique: "One cannot merely view a film of a cop clubbing a student and declare apriori [without] further data that what one has seen is or is not brutality."

Today, officers caught on camera abusing peaceful protesters during gatherings specifically intended to draw attention to police brutality are being quickly identified, investigated, and suspended or fired, including officers in Buffalo, New York, who were captured shoving a white-haired man and then walking past him as he lay on the ground bleeding. But the fact that dozens of such interactions occur even in such high-scrutiny environments demonstrates the limits of reforms focused solely on transparency or policing itself. Cops don't behave in a callous and brutal manner because they think they won't get caught. They do so because they feel like they must.

Police officers are not, by and large, sadists. They are operating within a system that demands brutality from them. No reform can make a lasting impact if we continue to insist that officers enforce bad legislation. Because every interaction between police and citizens can escalate to deadly violence, we must think carefully about when such violence could possibly be worthwhile. People must be free to defend themselves if they are unjustly attacked. But too many of our laws require authorities to initiate force in order to prevent voluntary transactions. They also disproportionately punish those who seek to defend themselves from police. The Louisville police used a battering ram to knock down Taylor's door while she was sleeping because a drug dealer sometimes received packages at her address. Her boyfriend tried to defend her. She ended up dead.

Floyd, and Garner before him, were initially accosted for the pettiest of crimes. In Floyd's case, it was passing a suspected counterfeit $20 bill at a local food market. In Garner's, it was selling loose cigarettes without a tax stamp in New York. Both men died crying out that they couldn't breathe. While the officer who knelt on Floyd's neck was fired the next day, it took five long years before the same fate finally came to the officer responsible for Garner's death. At press time, the officers responsible for Taylor's death still have their jobs.

Right as that 1969 issue of Reason went to press, the first message was being successfully sent and received on ARPANet, the precursor to the internet. In the end, that message may prove to be the most important development in fostering a free and just society. Friedlander was right that video alone cannot get the job done. Nor will a single essay make much of a dent. "I don't expect the reader to accept the material here as proof conclusive—it isn't meant to be," he wrote. "But at the very least the reader should now be aware how far from precise or rational are the statements and critiques concerning the police being offered by the mass media-recognized polemicists of the 'left' and 'right.'"

In 2020, the national conversation about police brutality and its deep roots is more widespread, urgent, and voluminous than ever. It has been five decades since Friedlander's essay. If we're going to fix this broken system, it's time to get started.