The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The recent murder of two New York police officers has led to claims that the killings were the result of "anti-cop" protests targeting police abuses in cases like the death of Eric Garner. For example, former New York Mayor Rudy Giuliani claims that the murders were caused by protests and "propaganda" that encourage people to "hate the police." Giuliani and others are right to condemn anti-police violence, but wrong to denounce protests against police abuses. We can and must oppose both simultaneously. Both deserve special attention precisely because of the unique role of police in society.
I. The Special Nature of Crimes Against Police - and Crimes Committed by them.
There is every reason to condemn crimes against the police and take them seriously. When police are targeted, it is not only the immediate victims who suffer, but the public order that police help provide. If police live in constant fear, the community as a whole loses. Had the perpetrator of the crime in New York not committed suicide, he would undoubtedly have been investigated and prosecuted aggressively. Those who commit crimes against police are usually prosecuted even more aggressively than ordinary violent criminals. That is understandable, and to some extent appropriate. Because of the crucial role of police in protecting the public, violence against them may be even more harmful than otherwise similar crimes against ordinary people. In addition to its inherent wrongness, violence against police is also likely to poison relations between police and citizens, and potentially contribute to a dangerous siege mentality among the former.
But the special role of police should also lead us to take equally seriously crimes committed by police themselves. When police officers harm innocent civilians or otherwise abuse the public they are supposed to serve, that too is even worse than an otherwise comparable crime committed by an ordinary citizen. In addition to injuring their immediate victims, crimes by police officers also undermine the trust between police and the community, a trust that is essential to effective law enforcement. Moreover, those who are entrusted by the law with the power to arrest people and use force against those who resist have a special duty to avoid abusing that authority.
II. Why the Criminal Justice System Often Fails to Take Police Abuses Seriously.
Overall, the criminal justice system does a much worse job of combating abusive violence by police than violence against them. The latter is relatively rare. Being a police officer is not even one of the ten most dangerous jobs in the United States. A year as a police officer is significantly less dangerous than a year spent working as a farmer or a lumberjack. In all of 2013, only 27 police officers were murdered while on the job, and the likely higher figure for this year is still very low by historic standards (especially considering population growth). Although the New York Police Department has some 34,500 officers and serves a city with many high-crime neighborhoods, Rafael Ramos and Wenjian Liu were the first NYPD officers killed while on duty since 2011. While even one such murder is one too many, there is no great epidemic of violence targeting police officers. And when such violence does happen, the authorities take it very seriously indeed.
Sadly, the very opposite tends to be true of abusive behavior by police themselves. Over the last several decades, many police departments have increasingly adopted dangerous, military-style tactics, which have often led to indefensible violence against civilians, including innocents. When such abusive behavior occurs, the perpetrators are rarely punished, a state of affairs that creates a culture of impunity. When police officers kill or injure civilians without good cause, destroy property, or slaughter harmless pets, they are rarely held accountable for it, even in unusually egregious cases, including the death of Eric Garner.
When a civilian comes before a grand jury, he will almost always be indicted, even if he resembles the proverbial ham sandwich. By contrast, police accused of crimes on the job almost never get indicted, in part because they tend to get favorable treatment from prosecutors, as happened in both the Ferguson and Garner cases. While I think the officer in the Ferguson case probably should have been acquitted in a criminal trial due to the conflicting nature of the witness testimony, that does not change the reality that he got special treatment in the grand jury process that would not have been extended to a civilian suspect.
Such double standards create terrible incentives for police officers. As one former St. Louis police officer puts it, "[t]he problem is that cops aren't held accountable for their actions, and they know it. These officers violate rights with impunity. They know there's a different criminal justice system for civilians and police." The vast majority of police officers do not engage in abusive violence. But, tragically, the system empowers and protects the minority who do.
None of this should be surprising to political conservatives. As A. J. Delgado points out in a recent National Review article, police departments exhibit many of the same pathologies that conservatives rightly decry in other government bureaucracies - including a tendency to avoid accountability like the plague. Just as pointing out the flaws of public schools does not make conservative and libertarian critics "anti-teacher," so condemning the comparable failings of police departments does not make you "anti-cop." Both cops and public school teachers are members of valuable professions. But both also often get away with poor performance because of perverse incentives. In the case of cops, those perverse incentives are exacerbated by a vast proliferation of criminal law that creates almost endless opportunities for dangerous interactions between police and civilians. Conservatives should not be surprised by that either.
For these and other reasons, it is wrong to denounce all those who protest police abuses, most of whom in no way advocate violence against the police themselves. The right-wing claim that the protestors have inspired the murder of the two New York officers is reminiscent of equally dubious left-wing charges that the shooting of Rep. Gabrielle Giffords was inspired by conservatives like Sarah Palin. Conservatives rightly decry such guilt-by-incredibly-loose-association tactics when used by the left. They should not repeat the same mistake themselves.
The perpetrator of the New York crime was a seriously disturbed individual who had shot his girlfriend earlier and committed suicide after shooting the two officers. If we are to refrain from all political protests and commentary that could potentially lead a deranged individual to commit violent acts, we won't be able to debate contentious political issues at all. The better way to reduce violence is to ensure that both police and civilians are held accountable when they resort to it.
UPDATE: Comments were apparently turned off for this post due to a technical glitch. It has now been corrected.
UPDATE #2: It may be worth noting that, according to the limited available data, police kill about 1000 civilians per year while on duty, which is about twenty to forty times the number of police feloniously killed by civilians. The vast majority of police-on-civilian killings are likely legally justified. But even if even a small fraction are not, that implies there may be significantly more unjustified police killing of civilians than vice versa. For example, if 5% are not justified, that implies a total of 50 illegal killings of civilians by police each year, which is almost double the number of police killed by civilians in 2013. And unlike civilians who kill police, officers who illegally kill civilians are rarely punished for it. The true number of civilians killed by police is difficult to determine because many police departments don't report such figures to the FBI, including even such high-crime jurisdictions as Washington, DC.