The Volokh Conspiracy

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Volokh Conspiracy

Don't support laws you are not willing to kill to enforce


Yale Law School Professor Stephen Carter—a prominent left of center legal scholar—has an excellent column highlighting an important lesson of the recent tragic death of Eric Garner at the hands of a New York City police officer. Unlike the Michael Brown case in Ferguson, Missouri, where there was conflicting witness testimony, this killing was pretty obviously indefensible, and has been condemned by observers across the political spectrum. But, as Carter emphasizes, incidents like this are also a predictable consequence of the overextension of the regulatory state:

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

I wish this caution were only theoretical. It isn't. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it's useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law…..

The problem is actually broader. It's not just cigarette tax laws that can lead to the death of those the police seek to arrest. It's every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they're right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won't lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.

As Carter points out later in his article, the scope of government regulation has grown so great that the vast majority of Americans have violated criminal law at one time or another. This sad state of affairs multiplies the opportunities for dangerous interactions between police and civilians, and virtually guarantees that abuses like this will recur.

Some critics of police misconduct implicitly assume that we can have our law enforcement cake and eat it too. They believe that we can simultaneously have police enforce thousands of petty laws and regulations, yet also extirpate racial profiling and excessive use of force to such an extent that police abuse of civilians will no longer be a serious problem. We can indeed take steps such as curbing the militarization of police, and eliminating double standards under which the criminal justice system treats wrongdoing by police far more leniently than similar violence by civilians.

But even if we make substantial progress on these fronts, a society where almost everyone is a criminal will still be a society where the sheer number of hostile interactions between police and civilians will be very large, which in turn ensures that there will be considerable room for abuse. Moreover, curbing police abuse through training, supervision, and after-the-fact accountability is far from an easy task. Among other things, prosecutors are understandably reluctant to go after the very same police departments whose cooperation they need to gather evidence and apprehend suspects. In addition, police are a well-organized interest group with considerable lobbying power and influence over both major political parties.

Carter correctly points out that the massive growth of criminal and regulatory law means that almost anyone can potentially end up in the same situation as Eric Garner. But it is also true that police abuses are far more likely to victimize poor African-Americans and other politically weak groups. That further complicates the task of trying to address the problem by reforming police procedure without also taking a hard look at the scope of the underlying laws that the police are tasked with enforcing. Even with people with considerable political clout find it difficult to impose accountability on police who engage in abusive violence against them.

As Carter notes, "activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate." But we should always remember that "[e]very new law requires enforcement; every act of enforcement includes the possibility of violence." If we really want to curb police abuses, we should think carefully about whether all the laws we have on the books are really worth killing for.

UPDATE: I should perhaps note that the point made by Carter does not apply to purely symbolic laws that do not include any attached penalties, such as fines or prison time, such as the many congressional resolutions declaring that a particular date is National Warthog Day or the like. However, it does apply to the many thousands of state and federal laws that do include penalties for violation.