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.