Unless you've been hibernating this year (for which you could hardly be blamed), you've probably noticed that some people are really angry at cops these days, whereas other people—mostly conservatives and members of law enforcement—are mystified by this and consider the anger almost entirely misplaced. As explained below, I think the anger is largely justified, but for reasons that do not receive as much attention as they should. Perhaps it boils down to the simple fact that it is immoral to enforce morally indefensible laws. Here's what I mean by that.
Police represent the front line of our criminal justice system. If, as I have argued here before, that system is fundamentally rotten and in certain respects morally indefensible, then people will naturally direct their ire towards those most responsible for dragging people into it. Human beings come hardwired with various cognitive biases and moral intuitions. Among the most powerful of those is the tendency to condemn those who violate certain taboos, including particularly the rule against harming other people without sufficient justification. If a strong case can be made that police officers regularly transgress fundamental moral precepts—while disclaiming any responsibility for doing so—then continued loss of confidence and corresponding anger towards them becomes much easier to understand.
Before considering whether people are legitimately angry at police as an institution, we should keep two points in mind. First, people who behave immorally don't get a free pass simply because they also do good. In other words, just because you invented the polio vaccine doesn't mean it's OK to steal candy from children whose lives you saved. Second, people don't have to be unequivocally right in order to be justifiably angry. Consider studies from last year that reviewed cops' Facebook pages and found a shocking amount of explicitly racist commentary. While that certainly doesn't support the proposition that most cops are racists, it raises perfectly valid questions about why the system seems so tolerant of people who express those views and why they're not hounded out of the vocation by their fellow officers.
So, is it reasonable to perceive that police too often violate the moral precept against harming other people without sufficient justification? Unfortunately, the answer is plainly yes. And that's not all. Besides inflicting unjustifiable harm, police are widely perceived as being frequently deceitful and unwilling to take responsibility for their misdeeds—more taboos that have been universally condemned throughout recorded history. Members and supporters of law enforcement who wish to restore public confidence in and esteem for police should stop dismissing these perceptions out of hand and instead consider whether they might have some basis in fact.
1. Harming others without sufficient justification and/or using disproportionate force.
There is a raging debate about how often police violate people's legal rights by using excessive force. Some people claim it happens relatively infrequently and represents only a tiny fraction of interactions between police and the public. Others, myself included, argue that police employ force—including lethal force—far more often than they should, and that it makes little sense to try to calculate the number of times police use excessive force as a percentage of total encounters. Among other things, when the law enforcement community doesn't even keep careful track of how many people they shoot, how on earth could we ever feel confident of either the numerator or the denominator with respect to all uses of force during police encounters?
But we needn't resolve that debate here because there are two other deeply problematic features of modern policing about which the only debate is philosophical, not empirical. These are, first, the use of police to enforce morally unjustifiable laws; and second, the use of police to inflict harm on people that is vastly disproportionate to the magnitude of the wrong (if any) they have done. Both categories of behavior are morally condemnable and American police spend a considerable amount of time doing each.
a. Harming others by enforcing morally unjustifiable laws
Consider a law that allows children who are deemed to be feeble-minded or mentally defective to be sterilized so they can never reproduce. Even if the Supreme Court upheld that law (which it did in the notorious 1927 case Buck v. Bell), it would still be immoral to help enforce it—whether by tearing children away from their grief-stricken parents, transporting them to state-operated sterilization facilities, defending the policy in court, or by actually performing those procedures oneself. The same is true of a law that purported to authorize the ownership of human beings and required police and other citizens to assist in the capture and return of those who escaped from bondage: It would be immoral to enforce that law even if the courts held that it was constitutionally permissible—as they routinely did before the ratification of the Thirteenth Amendment abolishing chattel slavery in America.
Defenders of our current criminal justice system rarely if ever ask whether any laws on the books today are morally indefensible. Instead, they seem to embrace the idea that: (a) that which is deemed to be legal must also be moral; and (b) people are absolved of any duty to consider the morality of their behavior the moment they put on a uniform or pick up a badge. Both propositions are false, and people who embrace them—whether explicitly, as a matter of conscious choice, or tacitly, by simply not bothering to consider the morality of their official acts—should not be surprised to find themselves condemned by people who disagree.
Lest you think morally indefensible laws are all in the past, consider that until June of last year, it was illegal to wear saggy pants in Shreveport, LA, and police arrested more than 700 people for violating that law—96 percent of them black men. Indeed, the law was only repealed after an officer shot and killed 31-year-old Anthony Childs while trying to stop him for wearing pants below his waistline. Doing violence to another person for wearing saggy pants—whether shooting them dead or just placing them in handcuffs—is an immoral act, even if the government purports to authorize it.
The question then arises whether an act that would be immoral for you to commit as a private citizen necessarily becomes moral simply because the government purports to authorize it. As we have already seen with slavery, eugenics, and saggy pants, the answer is emphatically no. While it's possible that something that it would be immoral for you to do as a private citizen can become morally permissible if you do it as an agent of the state (tax collection comes to mind), there is no automatic free pass. As a result, people in the business of enforcing morally dubious laws—such as prohibitions against certain drugs and any number of voluntary economic transactions—are mistaken if they think they need only point to the existence of a democratically enacted statute or a Supreme Court ruling to justify their behavior. Nor should they be surprised to find themselves scorned by those who condemn the unjustified use of force and who understand—as it appears so many police and prosecutors do not—that "I was just enforcing the law" is no more a morally valid defense than "I was just following orders."
b. Inflicting disproportionate harm.
Besides hurting someone without justification, it is also immoral to inflict disproportionate harm, even if the decision to use force was itself legitimate. For example, if I catch you stealing fruit from my apple tree, I can order you off my property and even knock the apples out of your hand if you refuse to drop them; but if you decide to take off with my apples, it would be immoral for me to hop in my car and run you down in order to prevent you from getting away with them. That's the moral concept of proportionate response, and it is another place where American police have been culpable.
Consider marijuana—two-thirds of Americans think it should be legal, and a growing body of research suggests it provides significant relief to people suffering everything from glaucoma and seizures to post-traumatic stress disorder from exposure to combat. Even if one could make the case that it is morally permissible to criminalize the prohibition of various drugs, including marijuana (an increasingly dubious proposition, I believe), the punishment for violating those laws must still be proportionate to the magnitude of the wrong. I suspect nearly everyone these days would agree that it would be immoral to sentence someone to life without parole for growing a single marijuana plant. But what about five years, which is the federal penalty for growing a single marijuana plant or the life sentences some people have received for non-violent marijuana offenses? Good luck convincing their spouses, children, and other loved ones that those punishments were morally justified and reasonably proportional to the magnitude of the wrongdoing.
And it's not just drug laws either. As I noted here recently, police initiate more than 13 million misdemeanor cases every year, for things as trivial as driving without a seatbelt or riding an ATV without a helmet, and every one of those arrests has the potential to destroy a life. That's because the consequences of a misdemeanor conviction (or even just an arrest) can be cataclysmic, not just in terms of the actual sentences (which are are typically served in dirty, dangerous, and now COVID-infested jails), but also because of the exorbitant fines, fees, and court costs upon which many jurisdictions have become increasingly dependent, even though they are far beyond the means of many defendants to pay.
Civil forfeiture is yet another mechanism by which the criminal justice system routinely inflicts harm on people that is wildly disproportionate to the magnitude of their guilt. To take just one example, after Philadelphia police arrested Chris and Markela Sourvelos's son for selling $40 worth of drugs outside their home, they came back with padlocks and ordered the family out because the city had decided to forfeit their house, just as it had done with countless other homeowners. Anyone who thinks that is an indisputably moral act deserving of no condemnation simply because it was done in accordance with then-prevailing law is a poor philosopher and a worse human being. At a minimum, we should not be surprised when people who disagree grow increasingly disdainful of an institution that will, without the slightest compunction, throw a family out into the street and take their home over a $40 drug sale.
To summarize, not all laws are morally defensible and neither is every punishment. People who unquestioningly enforce immoral laws and help inflict morally disproportionate punishments deserve to be condemned. And while reasonable people may certainly disagree about whether any of our current laws and punishments are morally indefensible, that is precisely the point—reasonable people may disagree.
2. The routine use of deceit by police.
Another bedrock moral precept is the injunction against deceit, including particularly in the context of an adjudicative proceeding—what is commonly referred to as "bearing false witness." Few people seriously dispute that police perjury is widepsread, and surveys of judges, prosecutors, and even cops themselves confirm the perception that so-called "testilying" by police happens regularly.
As my colleague James Craven documents in this recent blog post, the use of deceit by police also occurs outside the courtroom, given that American police—unlike their European counterparts—have embraced deceit as a legitimate tool of law enforcement. Our cops learn deceptive interrogation techniques, and numerous studies have confirmed how heavily they rely on these practices, often to the exclusion of using other strategies. Indeed, the use of deception is so widespread that Richard Leo, a leading expert on police interrogations, has described it as “the single most salient and defining feature of how interrogation is practiced" here in America.
The impression of cops as deceitful and untrustworthy has been exacerbated by people's ability to record their encounters with police and upload them to social media. Back in October, for example, the Fraternal Order of Police had to delete a tweet in which they claimed Philadelphia police had discovered a young child "wandering around barefoot in an area that was experiencing complete lawlessness" when it turned out that the child had in fact been pulled from an SUV that had taken a wrong turn, resulting in the child's mother being yanked out of the driver's seat by police and thrown to the ground with such force that she required medical attention. Other examples include this North Carolina police officer falsely advising an Uber driver (who also happened to be an attorney) that state law prohibited him from recording the encounter, and this traffic stop in which an Iowa cop first issues the young driver a warning about his headlights and then segues into an astonishingly ham-handed and deceitful ruse designed trick him into consenting to an entirely baseless search of his car. Defenders of police claim incidents like these are vanishingly rare, but how would they know? Cops do not make a record of every time they try to trick someone into waiving their rights, as in the two videos above.
The bottom line is this: It is perfectly reasonable for people to perceive that American police too frequently practice deceit, both officially and unofficially, in the course of their jobs. Those who would dismiss that perception or minimize its significance vastly underestimate the intensity of the cultural taboo against dishonesty and the universal moral condemnation of those who bear false witness.
3. Refusing to take responsibility for wrongful conduct.
The final point—accountability—has garnered so much attention in the context of Cato's campaign to end qualified immunity that it scarcely requires elaboration. But here again, we see police flouting a fundamental moral precept that says every sentient adult, regardless of their vocation or social status, must take responsibility for the harm they inflict on others.
Consider a wealthy diplomat who gets drunk at a reception and causes a car accident while driving home. The diplomat may well be able to avoid being sued by invoking diplomatic immunity, but that has no bearing whatsoever on his moral obligation to compensate the driver of the other car. Similarly, if you're a police officer executing a warrant in someone's home and you use the opportunity to help yourself to some of their belongings—$225,000 in cash and gold coins, let's say—then you have a moral duty to make restitution, just like the drunk diplomat. And, just like the diplomat, the fact that the law allows you to escape civil liability by asserting personal immunity from suit has no bearing whatsoever on your moral duty to compensate the person from whom you stole the money.
Of course, you may take the position that you've done nothing wrong; maybe you claim that you seized the homeowner's property as evidence in an investigation or as contraband to which the homeowner had no rightful claim. You certainly have a right to assert those justifications in litigation; but your decision to deny the homeowner his day in court by invoking a technical defense that arises purely from your status as a government official—which is what happens when police invoke the judge-made doctrine of qualified immunity—is a morally blameworthy act. Simply put, there is a disagreement between you and the homeowner about whether you had a legitimate reason for taking his property. But instead of submitting that disagreement to the judgment of a neutral arbiter, you have chosen to play what amounts to a legal wild card that enables you to avoid making restitution regardless of whether you were in the right. People who refuse to answer for their conduct violate a fundamental human value, and it is no surprise that they are universally condemned.
We started with a simple question: Why are so many people so mad at cops these days? Plainly there are many reasons, and we should avoid the temptation to oversimplify. But it would be a monumental error and a grave injustice to dismiss that anger if there is some basis for it. Police play a vital role in our society, but they cannot do their jobs effectively without the trust and support of the community. In order to hold that trust, they must earn it—including by asking themselves hard questions like whether there are certain laws they have a moral duty not to enforce and professional practices they have a moral obligation to disclaim.
A final point: Keep in mind that it is entirely irrelevant whether you yourself agree with people who condemn police for the behaviors described above. Chances are no one's asking you to march with them in solidarity or pledge your support for fundamentally overhauling the police. But if you reflexively dismiss and condemn the anger that has been pouring into our streets without trying to understand its origin, then make no mistake: You are part of the problem.