Want Justice? Can the Cops!

by Dr. Richard W. Morris, J.D., Ph.D.

Editor's Note:

Scragged has been concerned about injustices in our justice system for a long time.  Recently, an experienced expert submitted a series of ideas for reform.

While we do not necessarily agree with all the specifics of these ideas, there is no doubt that changes to our system are urgently needed.  Our hope is that his observations and musings may help all of us to think through the problems more clearly, understand the underlying issues more fully, and be better informed come elections.

We have all heard, if not said, “There’s never a cop around when you need one.” While humorous, this is all too true — as Richard W. Stevens illustrates in his book Dial 911 and Die.¹

The City of Phoenix, Arizona, has a population of about 1.6 million people and about 3,000 police officers.²  The ratio is 1.9 officers per 1,000 population, right in the national average.³  Suppose the ratio was 20 or 50 per 1,000?

I argue, if done correctly, it will lead to a safer environment — not to a police state. Privatization would prevent the growing trend toward a police state and the counter-trend to defund the police altogether.

Where are we today, and what can we do to improve the situation?

Where We Are Today

With all the attention given to police conduct today, one thing has become abundantly clear: we need to change the policing system. We must embark upon a new structure to replace the 300-year-old French concept now in use.

Before presenting a short history, I want to debunk a myth. Contrary to the motto "To Protect and To Serve" painted on ever so many police cars, the truth is, the thin blue line typically shows up after the crime. The police do not protect people from crime - they just bring a roll of nice yellow tape. They string it around the crime scene and investigate whodunit. They did not, and usually can not, prevent the crime in the first place.

At least when they show up at riots, they are present at the time of the criminal activity. However, riot control is beyond the scope of this series, so I’ll bypass that.

What do the police protect and serve?  We see in the currently burning blue cities, where the police have been pulled from the streets.  They aren't sent on vacation, though; they're still hard at work, serving and protecting the government. They serve as bodyguards for politicians. The police do not protect ordinary citizens — and they have no duty to do so.

In 1981, the U.S. Supreme Court ruled “it is not the duty of the police to protect the individual citizen…”⁴  The Court confirmed and expanded the ruling in 2005.⁵  You have no right to police protection. At the instant of the crime, baby, you are on your own. Dial 9-1-1 and die.

The situation today gets worse. The Supreme Court endorses routine freezing of bank accounts and seizing a citizen’s assets without filing charges. Civil forfeiture, like riot control, is beyond the scope of this article, but it is an atrocious and repugnant practice. It is, as Leonard Levy calls it, a License to Steal.⁶

Did you know it’s okay for police to lie to you?⁷  You can’t lie to the police, but they can lie to you. No wonder, in the eyes of many citizens, the new police motto is "To Harass, Abuse, Arrest and Confiscate."

In his book Rise of the Warrior Cop, Radley Balko documents the militarization of police departments across the country. He shows how politicians use the police to maintain the politician’s power at the expense of the citizens.⁸  The late Robert LeFevre wrote: “Government begins by protecting some against others and ends up protecting itself against everyone.”⁹  We now see evidence of this every day in the news as police abuse their power. The Cato Institute even launched a special website to document abusive police-state tactics.¹⁰

For most of American history, the police had to obtain a warrant, show up at your home, and announce themselves before entering. No more. Your home is no longer your castle - the police, like the king, now have the keys. Ah, but they don’t bother with keys: the cops simply break down the door and storm in. The police wrongfully kill innocent people police executing what is known as a “No Knock Warrant.”¹¹

Yet, no matter what the police do wrong, they have almost no personal accountability. Why? Because a doctrine not created by law, but by the Supreme Court of the United States, protects them¹² - the dreaded “Qualified Immunity” enjoyed by all public officials, including the police.

Today, in the U.S., a growing number of law-abiding citizens are no longer safe from the police.¹³  As the population becomes increasingly aware of abuses, trust in the protectors wanes, leading to calls for resignations of police chiefs and lawsuits against the governments who employed them.¹⁴

Therein lies the cause of abuse of power: the individual officers themselves rarely  face accountability for their actions. On rare occasion, their employers (federal, state, county, city, etc.) do pay for the egregious activity.¹⁵ Even in those rare cases, the bad cop himself does not pay.

The taxpayers who suffered egregious activity, including death, by officers are the people who pay. The individual officer not only bears no penalty, and the police unions often protect the bad officer - as they and the politicians did for years with the officer who ultimately killed George Floyd. Even worse, sometimes the officer gets a promotion.¹⁶

What To Do

We are taught to think of the police as an anointed group of impeccably honest people empowered by the state to enforce the law, protect property, and limit civil disorder. That is why they were originally called “peace officers.” Today they are called “law enforcement officers”, but for thousands of years, the military performed this function.

The French King Louis XIV created the first police force in 1667 to police the City of Paris, the largest city in Europe. The Parlement of Paris registered the royal edict on the Ides of March.¹⁷  For many years, the French continued to be at the forefront of police evolution.¹⁸

In the American “Old West,” policing was variable.¹⁹  The army sometimes provided some policing alongside the sheriffs and temporarily organized posses.²⁰  Government police were supplemented by private contractors²¹ hired by individuals, businessmen, local and federal governments. At its height, the number of Pinkerton Agency’s private police officers exceeded those of the standing army of the United States.²²

Even today, there are more private security guards than the police^{23 24}, and they are the ones to whom victims of riots and out of control crime turn. This is cited as one reason the crime rate has generally fallen.²⁵

In South Carolina, private security companies have the same arrest powers as police employed by the government, and they even have red and blue lights. If they make a mistake, the individual and the company are responsible—not the taxpayers. They do not have Qualified Immunity. As one might expect, this makes companies hire people based only upon qualifications to do the job.

Today we see city police decked out in black battle fatigues. They wear armored vests and dangle so many weapons they can’t walk with their hands at their sides - they waddle like gorillas. And with the use of army-type uniforms came military ranks.

Commonly, people think military service is a good background for a cop. Most police agencies, such as the Arizona Department of Public Safety, give extra points because the applicant served in the military.²⁶  But, as it turns out, military training is what a cop should not have, because the police function is far different from a military function.

Nonetheless, when you browse police department websites, you find they predominately show cops dressed in their very best black combat and ninja gear. They look like they are heading out on a mission in Afghanistan, tackling suspects, rappelling from helicopters, and kicking down doors.

How far afield is that from the community-oriented cop-on-the-street activities we of the older generations grew up with! The military mission of “kill people and break things” is not compatible with civilian policing of keeping the peace, as we see daily in the news across the country.

Here is a new idea. For the moment, assume all police officers had to be certified using identical standards. Once certified, they could then work for a government agency such as city police, or a private company such as Pinkerton, or freelance.

Or, and here is where I depart from today’s world, they could keep their day jobs and be police officers whenever the situation demanded. That is, when they desired to volunteer time or when merely being out and about, they could exercise their authority if they happened to be at a scene before or during a criminal act.

Off-duty police officers currently fill this “in the mood” role. For example, a thirsty off-duty cop walks into a convenience store that happens to have a robbery in progress — the cop changes from off-duty to on-duty in an instant. The same would be true for the citizen cop.

The difference is now instead of two officers per thousand population, there would be many. If the cop — government or private — screws up and abuses power, the individual cop is personally liable both civilly and criminally. Insurance could cover this liability, as it does now for private security companies. Indeed, I say personal responsibility rings the bell of justice.

The bad guys would soon learn there are many good guys on the street and realize if they want to pursue a career in crime, they need to become politicians.

All of the above takes time. With politicians, a lot of time. Meantime, here is what the president, governors, mayors, and others in authority can do tomorrow:

1. No-Knock Warrants. Issue an Executive Order that police will not seek or execute no-knock warrants.
2. End Qualified Immunity. Anyone holding an immunity can waive it. Issue an Executive Order waiving Qualified Immunity.
3. End Civil Forfeiture. Issue an Executive Order prohibiting the police from engaging in the practice.

For the long term, there is a lot to do, including allowing private police to have the same arrest powers as the government police.

Meantime, these three steps will solve the immediate problems without having politicians trying to micromanage police.

Endnotes

1. Stevens, Richard. Dial 911 … and Die, Hartford, Wisconsin: Mazel Freedom Press., 1999. ISBN 0-9642304-4-5. The book details “The Shocking Truth About the Police Protection Myth.”
2. http://en.wikipedia.org/wiki/Phoenix_Police_Department (May 23, 2020)
3. http://www.project.org/info.php?recordID=33 (November 18, 2012)
4. Warren v. District of Columbia, 444 A.2d 1 (D.C. App. 1981).
5. Castle Rock v. Gonzales, 545 U.S. 748 (2005).
6. Levy, Leonard W.  A License to Steal: The Forfeiture of Property. The University of North Carolina Press (2014). ISBN-13: 978-0807822425.
7. Frazier v. Cupp, 394 U.S. 731 (1969). A United States Supreme Court case that affirmed the legality of deceptive interrogation tactics.
8. Balko, Radley. Rise of the Warrior Cop: The Militarization of America’s Police Forces. New York: Public Affairs. 2013. ISBN 978-1-61039-211-2.
9. LeFevre, Robert. The Nature of Man and His Government. Caldwell, Idaho: Caxton Printers, Ltd. 1959. Lib of Congress Card No. 59-5901. P. 78.
10. Cato Institute’s National Police Misconduct Reporting Project, http://www.policemisconduct.net/
11. On June 11, 2020, U.S. Senator Rand Paul (R-KY) introduced the "Justice for Breonna Taylor Act" (S. 3955) to prohibit no-knock warrants, which allow law enforcement officials to forcibly enter a home without announcing their authority or purpose. Breonna Taylor was an innocent persons killed by police serving a no knock warrant.
12. Pierson v. Ray, 386 U.S. 547 (1967). The courts across the country have expanded this is egregious immunity protection, thus protecting police from personal liability.
13. Documented on many “Stossel” television shows and intellectually by the Cato Institute and others.
14. A list of recent incidences of police brutality and other police misconduct can be read at the Cato Institute’s National Police Misconduct Reporting Project, http://www.policemisconduct.net/
15. Qualified Immunity is a subject beyond the scope of this article, but one that needs serious attention.
16. One of the more egregious and famous incidents being the killing of Vicki Weaver as she held an infant at Ruby Ridge in 1992. The sniper, Lon Honuchi, paid no penalty and the government promoted him. 
17. March 15, 1667.
18. Notably Nicolas Delamare’s Traité de la Police (“Treatise on the Police”),  published in 1705 and considered one of the ten top advances in law.
19. I remember my former boss, Police Chief Bernard L. Garmire, telling me at lunch a couple of years before he died in 2011 at the age of 96, that when he took over the Tucson PD, there was no consistent quality of law enforcement anywhere in Arizona. He made the Tucson Police Academy focus on professionalism and dressed the cop on the street in a uniform of a white shirt and tie. His obituary is here: https://www.legacy.com/obituaries/azcentral/obituary.aspx?pid=152519327
20. Legends of America. https://www.legendsofamerica.com/old-west-lawmen/
21. The most famous of which was the Pinkerton National Detective Agency.
22. https://www.history.com/news/10-things-you-may-not-know-about-the-pinkertons
23. http://www.livescience.com/27198-crime-decline-clues-mystery.html
24. http://en.wikipedia.org/wiki/Private_police
25. http://www.livescience.com/27198-crime-decline-clues-mystery.html
26. For example, the Arizona Department of Public Safety favors ex-military candidates: “veterans who separated from the military under honorable conditions will be awarded five (5) additional points to an already passing score at the end of phase one testing. Human resources must receive a legible "Member 4" copy of the DD-214 form before the end of phase one.” http://www.azdps.gov/Careers/Officers/Questions/ (February 2, 2014)