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Stephen L. Carter: Blame the Police, But Blame Lawmakers, Too

Stephen L. Carter: Blame the Police, But Blame Lawmakers, Too

(Bloomberg Businessweek) -- In the wake of the horrifying death of George Floyd at the hands of a police officer in Minneapolis, observers across the political spectrum have found their answer: Prune back the doctrine of qualified immunity, which in most cases shields law enforcement officers from suits for the way they enforce the law. The New York Times editorial board is on the bandwagon. So is National Review. Representative Justin Amash, an independent from Michigan, has introduced a bill called the Ending Qualified Immunity Act.

Well, good. I don’t much care for the doctrine either, and I’d be appalled to see it applied to shield the officer who killed Floyd from civil liability (although it might be). But when we decry only the behavior of the police, we’re overlooking a related issue, one that we might label the burden of law—an issue that’s specially worrisome during the coronavirus pandemic.

Let’s start at the top. Most law enforcement officers are serious people who perform a thankless and often dangerous job in an exemplary manner. But incentives matter. The less likely it is that I’m going to be called to account for my actions, the less care I’m likely to take. Police, no matter how well trained, also respond to incentives.

Thus the clamor for change makes sense. The doctrine of qualified immunity was created by the U.S. Supreme Court to limit lawsuits under the Civil Rights Act of 1871, so the justices are free to limit or abolish it. Small wonder that some believe the answer is for the justices to grant certiorari in the several pending cases that would overturn or limit the doctrine.

Don’t hold your breath.

Just last month, the justices declined to review a decision by a federal appellate court holding that because of qualified immunity, officers who stole private property during a raid couldn’t be sued by the owner. The officers, it seems, knew that stealing was wrong but weren’t on notice that doing so violated the constitutional rights of the people they stole from.

The court also decided last month not to hear the appeal of a decision holding that qualified immunity protects a deputy accused of throwing a woman in a bathing suit to the ground hard enough to knock her unconscious and fracture her collarbone. The incident arose after a friend tried to push the woman into a swimming pool. A bystander called the police after guessing, wrongly, that the woman was being assaulted. In other words, the woman the deputy knocked unconscious was the alleged victim of a crime that had not been committed.

The examples go on and on. There’s every reason for fury, but we mustn’t miss the larger issue. The death of Floyd naturally brings police behavior front and center. This makes sense because police officers are the visible implements of government power, the sharp end of the spear. They do not, however, make the laws they enforce.

We all ride our own hobbyhorses into every controversy, and here’s mine: We have too many laws—well over 3,000 federal crimes and countless more state offenses. As I’ve long argued, if we want less violence from the enforcers, we should give them less to enforce. The fewer the laws, the fewer the interactions between citizen and enforcer; and the fewer the interactions between citizen and enforcer, the fewer the occasions for the interaction to turn violent.

Remember Eric Garner, killed by New York City cops in 2014? It’s easy to forget that the crime for which they were trying to arrest him was selling untaxed cigarettes. The legislature wrote the law outlawing the sale. Local political leaders commanded a crackdown. If it never occurred to any of these higher-ups that enforcement of the statute could turn violent, they were fools. Even with the best will in the world, there’s always a nontrivial chance that at the critical moment things will go awry. As long as that chance exists, the people who pass laws bear a part of the blame.

Consider the case of Breonna Taylor, shot eight times by police executing a no-knock warrant at her Louisville apartment this past March. Argue if you like for the liability of the officers who killed her. But let’s remember that there was also a judge who signed the warrant allowing entry without warning, and most likely a district attorney who approved, and a municipality that decided that no-knock warrants are a good idea.

There’s only so much reform that can be done around the edges. In the end, we have to alter the incentives not only of those who at times do terrible things to enforce the law but also of those who enact the laws that the police at times do terrible things to enforce.

This is a particular problem during the current emergency, because state governors, ruling by decree during the pandemic, have created a lot of laws. You might consider your own state’s emergency decrees vitally important; you might think they’re nutty. Either way, they have the force of law, and if you break them, you can be arrested by big men with guns.

Among those taken into custody during the pandemic have been a man riding a paddleboard in California and a father playing catch with his daughter in Colorado. Neither arrest was violent, but that doesn’t mean things couldn’t have turned ugly. Let’s not forget that officers enforcing emergency decrees have also been accused of unnecessary violence or that some observers charge that the decrees are being enforced in a racially discriminatory manner.

Hmmm. Unnecessary violence, racial discrimination. Should ring a faint bell. Believe or disbelieve particular claims as you like, but the longer the emergency decrees stay in place, the greater the likelihood that someone will wind up dead for disobeying them. The chances are good that the someone in question will be a person of color. We should all hope and pray that nothing like that happens, but if it does, let’s make sure to include as targets of our fury the people who handed down the decrees in the first place.

I’m not anti-government or anti-law, and I’m offering no excuses for the official violence we too often see. But if we’re serious about reducing the violence, we have to think beyond how to control police officers and ask ourselves how to control those who tell them what to do.
 
Carter, a law professor at Yale, is a Bloomberg Opinion contributor.
 
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