Police Misconduct: A Special Interest with Special Privileges

The riots in Baltimore only highlight the complicated and distressing issue of the recent killings of blacks by the police.  The issue involves so many different matters and is so complicated that one hesitates to even discuss it in print. But it is an important matter that cannot be ignored.

The different cases of killings illustrate the variety of circumstances involved. While it is hard to know for sure about what happened in these cases, the recent killings in Ferguson, Staten Island, South Carolina and Baltimore all seem quite different.  In Ferguson, it appears that the police officer was justified. In Staten Island, the crime was so minor that the death, whether justified or not, seems all the more tragic. In South Carolina, the killing seems obviously wrongful. And in Baltimore, while the facts are not entirely in yet, it seems clear that the officers behaved wrongfully in failing to provide medical attention (and have now been charged with murder). 

The riots in some of these cities—especially Ferguson and Baltimore—only complicate matters. Whether or not the police actions were justified, these riots are obviously problematic and only hurt the cause of the protestors in the eyes of the public.

That all said, it seems to me that the cases, along with other stories, reveal that there is a problem with police misconduct in this country. Reforms need to be passed. One widely discussed reform—requiring police to wear cameras—seems desirable, despite the costs that it will impose. (See this David Brooks column.) Such cameras will be a benefit both to the victims of improper police behavior as well as to police who behave properly.

But cameras are only one part of the solution. It is often not recognized, especially by some conservatives, that the police, while usually the protectors of law and order, also represent a government special interest that secures special privileges for themselves.

As Walter Olson discusses, the so called Law Enforcement Officers Bill of Rights laws provide special privileges for police.

For example, Maryland’s law provides that after an incident superiors cannot question an officer without the presence of a lawyer of the officer’s choosing, and that officers have 10 days to line up such representation. Critics say that by the time those suspected of misbehavior have to commit to a story, they will have had ample opportunity to consult with others about what to say.

More generally, these laws provide numerous privileges that ironically the police deny to ordinary citizens:

Unlike a member of the public, the officer gets a “cooling off” period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated “at a reasonable hour,” with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only “for reasonable periods,” which “shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.” Unlike a member of the public, the officer under investigation cannot be “threatened with disciplinary action” at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.

What happens after the interrogation again varies from state to state. But under nearly every law enforcement bill of rights, the following additional privileges are granted to officers: Their departments cannot publicly acknowledge that the officer is under investigation; if the officer is cleared of wrongdoing or the charges are dropped, the department may not publicly acknowledge that the investigation ever took place, or reveal the nature of the complaint. The officer cannot be questioned or investigated by “non-government agents,” which means no civilian review boards. If the officer is suspended as a result of the investigation, he must continue to receive full pay and benefits until his case is resolved. In most states, the charging department must subsidize the accused officer’s legal defense.

A violation of any of the above rights can result in dismissal—not of the officer, but of the charges against him.

I have not dug deeply into these matters, but the more one learns, the more problematic it seems. Reforms are being enacted in Maryland now, but they are anemic. In Maryland:

a package of police reform bills that Maryland Gov. Larry Hogan is scheduled to sign into law today, in part as a response to the death of 25-year-old Baltimore resident Freddie Gray, was weakened under political pressure from Maryland police unions, a major force in state politics.

The bills will allow police to wear body cameras, increase the liability cap for lawsuits against government employees, and encourage the state to collect more data on police behavior.

But more substantial reforms, including legislation to add a civilian review process and to have state prosecutors investigate all killings by police, were shot down during a legislative hearing in Annapolis earlier this year.

California has similar issues regarding the tracking of police misconduct and oversight.

The issue of police misconduct and police special privileges should be one that liberals and conservatives (and of course libertarians) could agree upon. But my guess is that emotional issues will often get in the way. Many liberals will want to beat up on all police. Many conservatives will defend police because they symbolically represent law and order. That would be unfortunate.

It is clear that police have a hard job, especially those police who work in crime-ridden neighborhoods. But that is no excuse for police misconduct or for insulation from responsibility. No one wants to be held accountable—whether police, teachers, politicians, or ordinary folks—but ordinary folks are. The police should not be an exception.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 01, 2015 at 21:20:30 pm

Half of the police charged in Baltimore in connection with this recent "killing of blacks by policeman" are black.

read full comment
Image of Incognito
on May 02, 2015 at 08:35:05 am

So what?

As the Baltimore Sun reported, the Baltimore police have a history of administering "rough rides" to detainees they do not like: cuffing the detainee with hands behind the back, placing the detainee in the vehicle without seat belts, and proceeding to stop short, take sharp turns, etc., so that the suspect gets banged around. This treatment has been administered to women as well as men and has resulted in jury verdicts and settlements in the detainees' favor.


That this practice persists despite adverse legal determinations and settlement awards is particularly appalling.

read full comment
Image of Wicks Cherrycoke
Wicks Cherrycoke
on May 02, 2015 at 11:27:52 am

"The riots in Baltimore only highlight the complicated and distressing issue of the recent killings of blacks by the police."

Why is it only a matter of public interest when the police kill blacks? They occasionally kill whites, too, but these incidents, whether justified or not, receive no media attention.

Also the "killing" in Staten Island was unintentional. The grossly obese, middle-aged victim suffered a heart attack after he resisted arrest and the cops roughly subdued him. He was not "strangled," contrary to what is commonly heard.

read full comment
Image of djf
on May 02, 2015 at 15:56:38 pm

The problems of excesses in the use of force by police are natural consequences of co-opting that use of force for vapid and silly things. The use of deadly force is unavoidable when confronting potentially deadly force; were the police not authorized or capable of using it, the citizenry would be vulnerable to those criminals and miscreants who would use deadly force for their own ends. This is legitimate: force authorized by a society to counter uses of force that are harmful to the innocent members of that society. Michael Brown's death was such an occurrence; a tragedy in the John Donne sense, but a justifiable consequence of the maintenance of law and order. If the role of the police is limited, the occasions for use of deadly force will also be limited.

It is when the police are used for other things, as in the Eric Gardner case, that the use of force becomes problematic for a society. When the police are dispatched as revenue agents, when they enforce silly ideological fads and introduce the use of force into situations where none would exist otherwise, such as as when they bust a teenager with a joint, the use of force loses its discipline and ultimately its legitimacy. When we authorize police to use force to incarcerate those in arrears on child support payments, or having an open beer in a public park, we are denigrating respect both for the law and for legitimate force. When we decide that our police departments should be subject to such extraneous concerns as "diversity," union politics, "sustainability," and ideological favoritism, we invite them to dilute their focus, and become insular and corrupt. They lose key competencies as we have seen happen with Secret Service, the ATF and and even the FBI.

When politicians are allowed to impose their pet causes or cultural idealism onto police departments they risk turning those departments into the strumabteilung of isolated interests, rather than public servants.

Police need to be able to use deadly force in certain situations. Society needs to have policies that limit those situations. We should start by minimizing the circumstances under which persons may be incarcerated. (Yes, I'll say it: we needed improved access to mental health care.) We should eliminate perverse incentives for police and prosecutors to profit from forceful seizures of property. SWAT procedures should distinguish between those that are intended to keep someone from being killed, from those designed to keep someone from flushing drugs down the toilet. No knock raids on the wrong house that leave someone dead are obviously failures at multiple levels, the consequences of which should not spare judges, prosecutors, informants or police. Police should be hired on the basis that they are the best candidate, and for no other reason. Civilian review boards should be the norm. Police derive their authority from us, after all. If they misuse it, we at least need to ask the question of whether we are part of the problem.

read full comment
Image of z9z99
on May 09, 2015 at 10:54:03 am

[…] Mike Rappaport at Liberty and Law explores how special interest politics contributes to shielding police misconduct, including the role of Law Enforcement Officers Bill of Rights laws (earlier). More on LEOBR/LEOBoR laws in two articles quoting me: Daniel Menefee, Maryland Reporter/WMAL and other outlets, on prospects for reform of the Maryland law; Kris Ockershauser, Pasadena Weekly, citing coverage last year from Jim Miller of the McClatchy papers on California’s tight restrictions on public access to police disciplinary records, which grew in part out of the state’s enactment of the 1976 Public Safety Officers Procedural Bill of Rights Act. […]

read full comment
Image of “Police Misconduct: A Special Interest with Special Privileges” | Internet Tax Lawyers
“Police Misconduct: A Special Interest with Special Privileges” | Internet Tax Lawyers
on May 09, 2015 at 16:16:54 pm

~ Our good, brave, honest police officers and agents with integrity deserve not only better training and standards, but leaders that lead by good example in their agencies for their officers to follow. It is up to the management to weed out the bad apples and when one of their own breaks the law or their own code of conduct or ethics, or even a mistake, it is their superiors that have to take responsibility and hold them accountable. The lives of all law enforcement officers are in their care. As are the lives of the public. People want the Truth.

~ Bad cops lie, falsify reports, plant evidence, use excessive force, flat out lie under oath in a court of law. And never even blink.

~ And good ones sometimes feel like they have to also and break their own code of ethics and conduct to cover for the bad ones. Or otherwise be labeled a rat and face retaliation. If any officer breaks the Law, Code of Conduct or Ethics, he should not be shielded by the Police Bill of Rights.

~ What is more concerning and a national security threat, is what the bad apples do off duty, or on duty but off camera...................?

~ Yes, polygraphs can be beat. Yes, the are inadmissable in court. Yes, they are only as good as the examiner. But if used as a tool to weed out the bad apples, and protect the good cops, maybe they would think twice before breaking the very laws they were sworn to uphold.

~ All Levels of Law Enforcement have for decades felt that the polygraph is a much needed and essencial part of the hiring process. Why not change Policy that Polygraphs and Psych Evals for new Hires expire every 5yrs? (Including applicants for higher ranking positions)

~ National Institute of Ethics: Police Code of Silence - Facts Revealed http://www.aele.org/loscode2000.html

~ Police Corruption and Misconduct legal definition http://legal-dictionary.thefreedictionary.com/Police+Corruption+and...

~ National Instititute of Justice: Police Discipline: A Case for Change http://www.nij.gov/publications/pages/publication-detail.aspx?ncjnu...

~ The Cato Institute's National Police Misconduct Reporting Project http://www.policemisconduct.net/

~ Police Misconduct and 'Law Enforcement Officers' Bill of Rights' Laws | Cato @ Liberty http://www.cato.org/blog/police-misconduct-law-enforcement-officers...

~ Center for Investigative Reporting ~ "Crossing the line: Corruption at the border" - http://bordercorruption.apps.cironline.org/

~ DoD: Random Lie-Detector Tests Increase Personnel Security https://sm.asisonline.org/Pages/dod-random-lie-detector-tests-incre... ("the polygraph is the single most effective tool for finding information people were trying to hide.")

~ Federal, State and Local Governments (including police) are excluded from the Polygraph Act of 1988. http://www.dol.gov/whd/regs/compliance/whdfs36.htm

~ Break the Code. Break the Culture.

read full comment
Image of donalds
on March 31, 2016 at 21:28:56 pm

Police abuse is running rampart in America... if only people knew the law. You can actually file an Affidavit of Criminal Complaint against any government worker. Its a personal lawsuit rather than taking tax payer money.

read full comment
Image of Sovereign

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.