A remarkable point came up during the trial of Edward Nero, one of the Baltimore City police officers charged in the homicide of Freddie Gray. Deputy State’s Attorney Janice Bledsoe argued that Nero’s detention of Gray without probable cause to believe he was involved in a crime constituted assault. She admitted this had broad implications — “That’s what happens in the city all the time. People get jacked up in the city all the time.”
Circuit Judge Barry G. Williams seems to have been incredulous, repeatedly asking, “Every time there is an arrest without probable cause, it is a crime?”[Rector]
But the answer to Judge Williams’ question is “Yes. Definitely. When an armed person is detaining you under threat of violence without a damned good reason, that is assault.” And the failure to acknowledge this is the rot at the heart of policing as we know it, a rot so pervasive that the only solution may be to eliminate the entire system.
Yes, this is a radical idea — in the literal sense, an attempt to get at the root (radix) of the problem. To do that we have to ask fundamental questions about the institution of the police force.
The idea of a civilization without police may be shocking, but in fact civilization got along without the police force as we know it — a large standing force of full-time enforcers dedicated to the suppression of crime — for thousands of years. Ancient societies had various military and paramilitary forces to keep order and impose the will of the sovereign, but London’s Metropolitan Police Service, generally regarded as the first modern force, wasn’t established until 1829; the first force in the United States was established in New York City in 1845.[Balko, 29-30] Police as we know them are an experiment, not an unquestionable fact of civilization.
London’s “Peelers” were issued a set of general instructions, which are often referred to as the “Peelean Principles” though Sir Robert Peel probably did not write them. They include the duty “[t]o maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”[Home Office]
Whoa. Let’s consider that a moment. The police are the public and and public are the police. The duties and powers of the police are the same as the duties and powers of every other citizen; police are merely individuals paid to give full time attention to these matters.
Early American police forces went along in the same vein and had some remarkably democratic aspects, with officers nominated by ward leaders of the neighborhood where they lived and worked. They acted more as public service agencies than law enforcers, and even included sheltering the homeless and feeding the hungry among their duties.
How did we get away from this?
Political machines corrupted the system, and policing jobs became patronage positions. In the first half of the 20th century reformers moved American policing to a more “professional” (or perhaps “pseudo-professional”) model. But this isolated cops from ordinary citizens, [Balko, 30-32] broke the Peelean principle that the police and the public are one, and set the stage to the militarization of policing of the past few decades.
The problem with a standing police force is much the same as the problem with a standing army: once the state has all these armed and trained people on its payroll and has granted them special powers and privileges such as qualified immunity, it has a strong inclination to do something with them. With a standing army there is a temptation to wars of aggression and imperialist expansion, which is why the American Founders strove to avoid one and have a nation defended by a well-armed and well-trained (“well-regulated”) militia; it is a shame that our nation instead chose the military-industrial complex and a bloody and belligerent foreign policy.
With a standing police force there is a temptation to invasive and authoritarian laws such as Prohibition, the War on Drugs, and the War on Guns; and the carceral state and the sort of criminalization of poverty that have recently come to light in places like Ferguson.[Shapiro] If a sheriff had to raise up a posse to chase after every pot smoker or prostitute or unlicensed poker game, laws against “consensual crimes” would never have come about. (Or at least would never be enforced.)
If a citizen witnesses a serious crime, or has strong reason to believe that a person has committed one, their right to detain the perpetrator via “citizens’ arrest” is established in the common law tradition and in statutory law in the US and UK. (Legal details vary with jurisdiction; consult your attorney and your defensive tactics instructor before trying to restrain a criminal perpetrator.) If a complaint is sworn out against someone, the police may arrest them without having witnessed the crime — but the authority to do so comes from a court-issued warrant, not from any special power of the office. There is no a priori reason why a warrant couldn’t be issued to anyone meeting certain qualifications, in somewhat the same manner that bail bondsmen and enforcement agents operate in some states.
Similarly, the power to enter and search someone’s home or business for evidence comes from a specific warrant, not from some general power of the office. Of course an officer can enter without a warrant if there is evidence that lives are at stake, a cop who hears screams coming from a house doesn’t have to get a warrant before breaking in — but any citizen has the same right, perhaps even duty, to intervene in such a situation.
So if we removed any notion of special powers from the police, gave beat cops no more power than mall cops or your neighborhood watch, they could still act to defend those in need and apprehend suspects. It would just be less convenient for them to do so.
But for those of us that care about the preservation of liberty and see how a standing police force is a threat to justice, it’s not a bad thing that locking someone in a cage be inconvenient.
Indeed we have a term for a system set up for the convenience of law enforcement, where an armed and uniformed agent of the state detaining people under threat of violence for no reasonable cause is business as usual. We call it a “police state”.
Balko, Radley. Rise of the Warrior Cop : the militarization of America’s police forces. New York: PublicAffairs, 2013.
Home Office [UK]. “Policing by consent.” GOV.UK. 10 Dec 2012. <https://www.gov.uk/government/publications/policing-by-consent>
Rector, Kevin and Justin Fenton. “Prosecutors, defense disagree in closings on what constitutes an assault at Officer Edward Nero’s trial.” Baltimore Sun. 19 May 2016. http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-nero-closing-20160519-story.html
Shapiro, Joseph. “As Court Fees Rise, The Poor Are Paying The Price.” NPR / All Things Considered. 19 May 2014. http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor
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