Submitted by: Mike Spindell, guest blogger
This past week Professor Turley had two posts regarding the innocent victim of a police shooting: https://jonathanturley.org/2012/07/17/florida-police-pound-on-wrong-door-looking-for-suspect-without-identifying-themselves-thenves-then-shoot-and-kill-innocent-man-who-answers-the-door-with-weapon/#comments and https://jonathanturley.org/2012/07/20/report-police-allegedly-increased-suspects-alleged-crime-after-shooting-third-person/#more-51907 These can fairly be called the latest installments of an ongoing series that details deaths and injuries sustained by people who are the victims of policing errors. There were a fair number of comments all lamenting yet another example of careless police work, in tandem with a propensity to shoot first and hope for the best. After awhile the comments petered out because this instance is but one of many that have been publicized by Professor Turley. He tries to focus attention on what seems to be blatant disregard for the rights of individual citizens. After all, what does one say after expressing their outrage at egregious behavior and impotently raging against the expected ensuing cover-ups? Emotionally, I personally feel horror and outrage when something like this happens and I desire justice in the form of stiff punishment for the avoidable errors that took an innocent life. Yet this occurs time and again as outrage simmers and yet another story captures our attention. It seems that nothing is ever really done with the macro-cosmic problem, even when on the individual level, though very occasionally, the people responsible are held to account. When I thought about the issue of police killing the wrong person it occurred to me that this is not something that has recently developed in our country, or indeed the rest of the world. In fact it seems to me that such occurrences represent a norm of human history that stems from how the entire concept of policing first came about. Policing had its origins in protecting wealth, property and the status quo of autocratic authority.
Historically, whatever name was given to them in each society, the police function was one of maintaining the established order. The edicts of the Kings had the force of law and in the feudal manner the authority spread top down through the layers of local nobility. The vast majority of the people had no rights except to obey the established authority. Justice was swift and harsh, often dispensed on the spot by those with the authority of weapons, serving the policing function. The elements of an individual’s rights under the law in our tradition date back at least from the Magna Carta and English Common Law. The Magna Carta itself though was a definition of the rights of the nobility, rather than the common folk, with elements that found their way into the common Law. However, the concept of “police power” remained essentially protection of the rights of the Nobility against any usurping of those rights by the common folk. The Sheriff of Nottingham, in Robin Hood, was less a public law enforcer and more a protector of the prerogatives of the nobility. Robin Hood after all was less a revolutionary and more a poacher and highwayman.
With the inception of our Constitution came the delineated concept that each citizen, no matter what their status had certain inalienable rights. Thus the establishment of our Republic was novel in that all citizens were assumed to have rights that should be protected under law and therefore assumed that their would be some legal authority empowered to supply that protection.
In the newly formed U.S., localities had developed a system that included Sheriffs and Constables. There was also the U.S. Marshall’s services which was developed in 1789, and represented the second oldest Federal Law Enforcement Agency: http://en.wikipedia.org/wiki/United_States_Marshals_Service after the U.S. customs Service. The Wikipedia link provides some interesting facts as to the services performed by the U.S. Marshal’s which included apprehending criminals in the “Old West”, catching runaway slaves and breaking strikes of the early labor movement. All these functions can be seen as protecting private property and privilege to a far greater extent than protecting the average individual citizen. It is not merely myth that when Marshal’s deputized posses to chase rustlers or other miscreants, the hanging tree was used more often than the courtroom for dispensing justice.
We see this “policing” on the local level too. For much of our history the various local, or State constabulary’s were appointed and served at the pleasure of the wealthy powers that led the Towns, Cities and States. Some of the history of the famed lawman Wyatt Earp, as detailed in Richard Slotkin’s highly informative work on the “Old West” “Gunfighter Nation”, shows this “hero” in various roles as Marshal and Sheriff. Earp and his counterparts were less enforcers of the law and far more representatives of special interests. The storied “Gunfight at the O.K. Corral“, was according to some historians caused by a personal vendetta Earp had against Ike Clanton and not an attempt at law enforcement and was in essence an ambush. This was the context in which law enforcement developed in this country and it was on a distinct, yet related track to the development of American jurisprudence.
If we look at specific history we see law enforcement in the role of not only seeking miscreants, but also in directly and openly serving the “Establishment“ of Wealth and Corporate power. Early labor movements were routinely opposed by local, State and Federal police agencies intervening in non-violent strikes. Slaves were routinely captured to be returned to their “masters”. in other localities. In Los Angeles as it grew with the success of Hollywood, men with experience as enforcers of “Jim Crow” in the post-bellum South, were imported to ride herd on the Mexican and growing black populations, enforcing a de facto segregation on the City. This occurred in Detroit in fighting the United Auto Workers and also in repressing the Blacks lured from the South by the explosion of the automobile industry. Our history is replete with this usage of our various police forces to oppressively maintain the interests of the powers that be.
Whether it involved Black Americans, Native Americans, Latinos, the various waves of ethnicities immigrating to America, or just plain poor people, the function of the policing power at all levels has been to “keep them in their place”. Though in some instances like “Jim Crow” in the South, there were specific laws to empower keeping Black people in their place, normatively the message for the police to perform this oppression was couched more in covert terms. It was a tacit understanding for those who took the job and was reinforced as they were inculcated into the “fraternity” by the veteran officers. In the public front the tabloid newspapers often publicly called for this repression, ignoring the fact that it often had no legal basis. So we see that despite our Constitution and our Courts, policing throughout our history and up until today has always had a covert mission of “protecting” the interests of those with power against those perceived to be somehow less than true citizens.
Another example of what I see as the usage of law enforcement officers (LEO’s) to assert the interests of established power has been in the area of “morality“. LEO‘s have been involved in “fighting“ prostitution; banned heterosexual sex acts (widely defined sodomy laws); homosexuality; segregation, marriage between races: abortion; prescription medications; alcohol: and of course the failed “The War on Drugs”. It has always seemed to me that these “victimless” crimes should never have been legislated, but demagogic politicians have always succeeded by presenting themselves as defenders of a moral code, while religious institutions have felt the need to impose their concept of morality upon those who would not conform to it. Thus working hand-in-hand with political demagogues to develop a law based on someone’s tenuous notion of morality. We have seen that this notion of morality enforcement intersects with the needs to keep Blacks “in there place” As I wrote here: https://jonathanturley.org/2011/11/26/the-incarceration-of-black-men-in-america/
So we have a situation where there is our Criminal Law defined and developed over centuries that presents itself as a bastion of fairness in treating all citizens equally. Juxtapose this with a policing concept that LEO’s are the defenders of the social fabric of our society against the incipient “criminal element” and it would appear that we have a system of justice that is viable. However, we all know if we are honest with ourselves, to paraphrase Orwell “That some animals are more equal than others”.
While it is true that the overwhelming majority of LEO’s are drawn from the middle or lower economic classes, anyone who would take them for being stupid is a fool. Perhaps more so than most, the LEO’s understand the economic/political realities of our society. They know that if they come down too hard on someone with power their jobs and pensions will be at stake. They also understand very well that they are being given mixed messages when it comes to enforcing the law. The public message is upholding the law in all its pristine fairness. The covert message in almost every venue of this country is that LEO’s should do whatever it takes to meet the duties they are handed. It has happened so often in our history that a particular murder case will be splashed across headlines in a given locale and the pressure to solve it from the Mayor on down is to find a culprit regardless of their guilt. The LEO’s understanding comes down to it’s either my neck, or someone else’s if I don’t get results.
These covert messages inevitably lead many LEO’s to a corrupted understanding of the duties they are to perform. Seriously though, in the context of our society where billionaires can bend the financial rules with impunity and get away with it, can we really blame some of our LEO’s from becoming corrupted? When one spends their working life dealing with the corrupt elements of our society, yet knows that some of these elements are out of bounds, how long can most maintain their integrity? The world becomes as they perceive it and the only truth is being true to oneself and those one loves. A corollary to this is that the only people who can understand LEO’s, are other LEO’s. From this the unwritten rule to protect their fellow officers becomes sacrosanct.
That our police are corrupt is not due to the fact that we don’t weed out the “bad ones” at the Academy, but that our entire legal/political system is responsible for corrupting many of them. Our American system as it works in actuality is that there are many who are immune to the strictures of law and ethics. This breeds distrust and cynicism. In fact, as a former civil servant and as someone who has always in my work tried to walk an ethical path, there have been many times when I’ve wondered if these ethics represented my stupidity at playing the game of life. This is especially true when supporting my family and raising my children has been the most important thing I personally believe I’ve been doing in my life. On numerous occasion my ethical compass has prevented me from progressing up the career ladder, or even from earning enough money to support my family as I would have liked to support them. Can I honestly expect more from people who choose to be LEO’s, only to find that the underlying messages as to their duties are quite the opposite of what they’ve been led to believe?
I believe though that there are many LEO’s who do take their duties to the Law and the Constitution seriously. What appears a sad fact to me is that those who do walk the lawful path are those who find themselves limited in advancement and threatened by their cohorts. I offer this not as a justification of these unlawful and sometimes really stupid acts committed by the police. My thoughts do not slake my outrage. Yet it is a question of where the ultimate blame lies and I accuse our system where wealth and power trumps all. In this weeks outrage I believe the officers involved should be severely punished, though I doubt that will happen and believe in any event that in behaving so callously they too are victims of our system in America. As the cliché goes the rich get richer and everyone else gets screwed.
Submitted by: Mike Spindell, guest blogger.