What if the Police was just another service?
The latest episodes in modern American history have gotten most of us thinking: are the police services necessary? Are we entitled to safety? Is safety a human right? Who shall provide this safety? At what cost and at whose expense shall safety be provided? What is the human and societal cost for police misbehavior? Does society truly feel safer around the police or does it feel unrightfully threatened? Should I be forced to hire police services even if I don’t feel unsafe?
The aforementioned questions may not have clear and precise answers; however, they do question the legitimacy of a tangible form of authority and how it is applied to society through the monopoly of force administered by the state. Although we may not have enough data to answer all those questions, we do have enough information for the next questions: Before the COVID-19 outbreak and all the events that followed shortly thereafter, when was the last time you called the police to protect you, your property, or the life and property of others? Before you think about it, I also invite you to reflect upon this question: when was the last time you paid for the police services regardless of using it or not?
Now, I obviously cannot answer the first question because I am not you; however, I can certainly guarantee you that the last time you paid for police services (whether you used it or not) was when you got your last paycheck. The undeniable truth that many individuals blindly choose to ignore is that we are compelled to continuously pay for a service that we rarely ever use (if we use it at all), and when people do use it, it has the potential to cause more social disruption and individual damage than to actually protect the alleged victim who asked for the service in the first place. In other words, we are being forced to subsidize violence within a market that has a monopoly of force that continuously goes unchecked.
If you still believe that you are entitled to feel safe, how would your need of feeling safe with government protection ever justify the use of force to compel me to pay for services I don’t want? Wouldn’t using force to compel others to pay for services they don’t want constitute an immoral action? The deeper we dig into the idea of security, the more we end up realizing that safety is rather subjective and life is inherently dangerous. The mere existence of police does not automatically make our lives safer.
The idea that we give a small group of people wearing uniforms the right to kidnap, break and enter (no knock raids), steal, and kill us so that we can be “protected” from people who kidnap, break and enter, steal, and kill us, all of a sudden, sounds unreasonable and utterly absurd. Why would I ever pay someone to allegedly “protect” me when they do not even have the legal duty to do so?
Warren v. District of Columbia, Civil Action No. 4695-76: police has no duty to protect you.
Police will not protect you or your property, whether it is because they can’t or because they don’t have to. Police has no duty to provide you, as an ordinary individual, any protection. That is exactly what the District of Columbia Court of Appeals decided on a Civil Action – Case No. 4695-76, in December of 1981. The D.C. Court of Appeals expressed that:
“The Court, however, does not agree that defendants owed a specific legal duty to plaintiffs with respect to the allegations made in the amended complaint for the reason that the District of Columbia appears to follow the well-established rule that official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection.”
This Court, on the same ruling, goes on to say that: “a publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order.” Apparently, protection was never in the package. Now, if police has no legal duty to protect those who pay them, what do we pay them for? The current events have only shown us that police services are failing terribly at promoting public peace, safety, and good order.
The same type of judicial ruling exempting police officers from the duty to protect took place on the Parkland Massacre case, when federal judge Beth Bloom affirmed that neither the School District nor the Sheriff’s Office in the Florida County had any constitutional duty to protect the students there during the massacre.
In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the U.S. Supreme Court held that the only duties of care required by the Constitution are those extended to individuals who are restrained by the government and therefore unable to protect themselves. This includes only individuals who are under the government’s custody.
Conversely, what all these cases really mean is if you are assaulted, robed, shot at, or raped, the perpetrator of such crime once arrested by the police has the right to protection, but you who suffered the criminal act (and who pay for the police to exist) cannot claim that the police failed to protect you. In other words, you are paying an agency to protect someone who caused you harm or damage and that inexplicably has no responsibility to protect who pays them.
If the police are only responsible for those under the government’s custody and its duties are solely to promote public peace, safety, and order, yet they fail at every level, again we must ask: what are we still paying them for?
Qualified Immunity: when incompetence meets irresponsibility left unchecked
Another serious issue that needs to be taken into consideration when analyzing the current scenario is the so called legal doctrine of qualified immunity and what it truly means to society. Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for rights violations, such as the right to not be subjugated to police brutality, as guaranteed by the Fourth Amendment.
This legal doctrine only allows lawsuits to proceed when officials violated a “clearly established” statutory or constitutional right. However, when determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights or not. The problem here has a name: subjectivity. When human lives are at stake, relying on pure judicial subjectivity is rather dangerous.
You will not hear judges or police officers saying this, but within a basic analysis of how qualified immunity works, it is absolutely fair to say that it incentivizes bad behavior by promoting the idea that wrongdoings will be harder to be proven in the court of law since the application of such doctrine calls for subjectivity. What happens when the law incentivizes bad behavior? We get more of it. Evidently, the application of qualified immunity is maximizing police irresponsibility, which in many cases will be left unchecked. Ultimately, what it means is that we are all subsidizing bad behavior that, at best, will be subjectively analyzed.
It is important to highlight that the premise here is not accusing every police officer of being irresponsible; however, the existence of a legal doctrine that was designed to somehow shield bad behavior tends to create and reinforce the idea that acting outside the boundaries of legality has a higher chance of going unpunished.
It is no surprise that the police in the US usually act more aggressively than in other countries. Cultural variables are, of course, at play when analyzing violence within a given society; however, if we do a simple behavioral calculus we will see that summing up the lack of duty to protect of police officers (sustained by court) plus qualified immunity and police unions, we can definitely expect a higher probability of unchecked brutality as an outcome.
If you have any doubts about some policemen abusing their powers, just take a look at the data showing cops as repeat offenders. As an example of how bad the situation is, the officer who knelt on George Floyd’s neck had 18 complaints against him, but only faced discipline for two according to the Minneapolis Police Department’s Internal Affairs. Had that officer been fired after his second of third complaint, George Floyd would probably still be alive.
Now, it is interesting to note that depending on the severity of the actions of a private sector worker, one complaint would have been enough to justify the termination of such employee, so the question here is why do Police Departments allow someone with 18 complaints against him still walk around with a badge? Because the system is made to protect those officers instead of ejecting them out of the police force, which just proves the point that the system we have right now in America is incentivizing bad behavior.
De-unionizing police: an idea for the future.
The reality shows that quite often bad officers, even when their bosses know that they are truly bad, are never fired because Police Union’s rules keep abusive cops on the streets. But the job of a union is to protect the interest of its unionized members at any costs, which makes it nearly impossible to fire a police officer who has had one, two, or maybe even three transgressions.
Police officers, in theory, are entitled to be represented collectively just like any worker. The freedom of association is indeed a right. However, if the argument to be made is based on freedom, then individuals should also have the right to not financially support services that they deem unnecessary or potentially dangerous. Who supports Police Unions? Police officers. Who supports Police officers? Individuals. Therefore, it is fair to say that ultimately the taxpayers’ money is what pays for the existence of Police Unions.
Although workers in general have the right to collectively form a union and voluntarily contribute financially to maintain its existence, the same argument cannot be applied when it comes to police unions because paying for police services is not something voluntary. We don’t have the choice to not pay taxes without any legal consequences. So police unions can only exist if police officers get paid with taxpayers’ money.
Now, if you pay for something that may bring you more prejudices than benefits, perhaps it is time to analyze the overall costs of maintaining police unions, and if the costs far outweigh the benefits, it would be only logical to do away with it. One study found that after unionization officers were 40% more likely to use violence in an incident. That should tell us something.
In Camden, New Jersey, police officers took so much sick time and family-leave every day that nearly 30% of the force would not show up. It shows us that Camden police was corrupt, overpaid, and highly ineffective. As a consequence, Camden City Council did what was right and dissolved the entire police force. Interestingly, things ended up getting better for the Camden population after the city decided to get rid of its police officers.
Unlike most people think, this decision did not cost the city of Camden more of taxpayers’ money in order to train new officers. As a matter of fact, it costed Camden less money to restart its police force than to keep the old corrupt one. Officer costs were trimmed by approximately $80,000.00, which allowed Camden to basically double the size of its police force. That experience seems to have improved the quality of policing in Camden.
Some studies do show that the higher the number of police in the streets, the smaller is the level of crime in that particular locale. However, that can only be a true statement when police officers themselves are not somehow contributing to more crime, due to corruption, instead of working ethically within the boundaries of the law.
Why not give a chance to private police?
Perhaps society thinks it is still too soon to abandon the notion that all public services are truly necessary, but the more violent police gets, the faster individuals realize that the current police system is absolutely flawed and can be far more prejudicial than beneficial. Once society realizes that, there will be enough space for the idea of private police and its benefits to grow.
The truth is that providing security and keeping the public order is a service just like any other. Safety is a product that can be provided by the free market with private police services. That would be a far more ethical and affordable way of providing security to communities than the system that we have now. What about keeping the public order? Voluntary neighborhood watch, which is something recommended by the police themselves, as well as the correct practice of citizen’s arrest may have a better impact on keeping the public order within society than using police force.
One of the main reasons why crime has decreased in the US is economic growth. The wealthier we become, the smaller is the incentive we have to behave badly in society. Correspondingly, it is fair to say that the more ethical we behave within a given society, the less we tolerate misconducts, which makes us more inclined to combat criminality in order to keep civility alive in the areas where we live. So it is not an absurd to bet on the combination of private police with the correct practice of citizen’s arrest as a model to create a deterrent method to prevent crimes.
Whether we want to decrease police powers or do away with public police, we all have to face our current sad reality. Truthfully, we will see more police killing individuals every week in this country. Some stories will be aired and some won’t, but most importantly, it is time for people to realize that nothing will change until we change the incentives under which police still operates.
By Helio Flanagan Veiga