Bad Cops as Bad Municipal Workers

I had an exchange with Cynic around unions, city employees and police brutality that's worth highlighting, I think. Cynic has also given these previous thoughts on how pensions might hinder efforts to get bad cops off the streets. It's a good exchange, and, as an aside, it is the kind we'll be seeing a lot more of. Cynic is going to guest-post next week, along with my old friend, Brendan Koerner. You guys are in for a treat.

Anyway, what I like about this post is how it explores an obvious problem by connecting to broader structural issues. I understand the rage over the Oscar Grant verdict. But after covering this sort of thing for a decade, after having a friend gunned down by a PG County cop mere feet from his young daughter, I am hoping that we can dig a little deeper.

Putting all our chips on criminal prosecution has left us with failure after disappointing failure. It's not enough to keep railing angrily at the system. There has to be another way to deny the state-sanctioned right to detain and kill from people who believe it's appropriate to brandish a gun during a snowball fight. My son has to walk these streets.

Cynic's first post takes off from the "fear" defense which has cropped up in nearly every excessive force case from Rodney King to Amadou Diallo:

Fear, for a cop, is a little bit like the insanity defense for ordinary defendants - it gets pulled out of the drawer when there's prima facie evidence of guilt, and few other alternatives. Both speak to the mental state of the offenders. And both provide a path for a judge or jury, troubled by the prospect of an outright conviction, to opt for a different course. But the Insanity Defense is hardly ever used, and hardly ever succeeds. The Fear Defense, by contrast, seems to be ubiquitous in cases of police misconduct, and successful more often than not. 

So why is that? On matters of internal discipline, I suspect it's largely a function of the burden of proof. Many civilians are inclined to regard the right to wield lethal force on behalf of the state as an extreme privilege. That would place the burden on the officer to show why, having mishandled or abused it once, he should ever be entrusted with it again. But that's not how these processes work. Police officers in this country are unionized - and they have a presumptive right to their jobs. Limiting, suspending, or revoking that right requires specific kinds of evidence. Such actions are regarded as punitive, and the burden of proof rests with the department. So fear, as a mitigating factor, tends to work. No one can know for certain what passes through an officer's mind in the moments before he overreacts; if he testifies that his assessment of the situation justified the force he employed, it is extremely difficult to disprove that.

In jury trials, some of the same factors are at play, as prosecutors have the burden to establish guilt beyond a reasonable doubt. And frankly, with regard to criminal sanction, that seems more appropriate. But there's an additional factor. Jurors tend to be sympathetic to law enforcement. That can be exacerbated by racial prejudices, but even when it's a black cop and a white victim, it tends to persist. I think it goes beyond societal fears of violence and respect for the thin blue line, to the more generalized deference we all have for expertise. It's tough to second-guess the way someone does their job, if they get up on the stand and swear they were doing the best they could. That's where the Fear Defense comes in to play - it allows officers to swear that, although the situation turned out not to justify the force that was used, at the time of the incident in their professional assessment it was justified. 

On an earlier thread, I commented that the structure of police compensation was part of the problem. And I still believe that - it raises the stakes in disciplinary proceedings, and traps disenchanted officers on the job. But it's part of a broader problem. Being a police officer isn't just a job, and a difficult one. It's also an extraordinary privilege. It's one thing to preserve a presumption of innocence in a criminal proceeding. It's something else again to preserve it in a disciplinary hearing. The question that operates in cases like Baylor's shouldn't be guilt or innocence - it should be fitness and merit. Is he the best detective that the District can muster? Do his actions indicate that his privileges should be renewed? Can he and his defenders affirmatively establish his fitness for the position of public trust that he holds? 

I don't think it's ever wise for the default option to be entitlement to the use of force. And that, regrettably, is what the present system amounts to.

Here's the second comment responding to the broader question of unions for public employees:

Some subjects are so complicated that they really deserve threads of their own - public employee unions are a prime example. But yeah, I have some fundamental concerns about the concept. And it's an issue of increasing salience - we now live in a nation in which most union members work for the government, and in which they generally enjoy greater job security and richer benefits than the taxpayers who fund them. Whether or not it's wise, it doesn't strike me as sustainable. 

I tend to regard public employees as holding a sacred public trust. I think there is an absolute and compelling public interest in ensuring that its trust is placed in the proper hands. That's why we have limited terms of office and periodic public elections, to ensure that the agents of the public are accountable to the people. We don't grant congressmen tenure in office after winning a string of elections; when the people decide their representative has ceased to serve them well, they dismiss her and find a replacement. I think the same should broadly be true of other public offices. If a public employee cannot demonstrate that he continues to be worthy of the public trust he holds, he should be thanked for his service, and replaced. And if there are problems with unions and the presumptive right of employment, they intensify with the degree of public trust placed in an employee. So police officers are at one end of the spectrum, teachers nearby, and file clerks in the assessor's office fairly far toward the other end. The costs of a file-clerk's union are real, but the costs of a police union tend to dwarf them.

Here's one way I think about the issue. In the period immediately after the Revolution, there was a circulating critique of all corporate bodies as fundamentally anti-democratic - in a Republic, the argument went, the people are sovereign, and so any subgroup of citizens advocating for its separate interests was inherently subversive and schismatic. It was of a piece with the more general concern with faction. Within a few decades, it had reversed itself - restricting access to the corporate form turned out to favor the affluent and connected, capable of gaining its privileges for themselves, and so allowing corporate bodies to proliferate came to seem the more democratic alternative.

In general, that was a good outcome. But there was a shard of truth in the original critique that helps to illuminate some of the tensions inherent in the notion of a public employee union. It is, by definition, a group of agents of the government - hired by the sovereign people, through its representatives - who have banded together to defend their separate interests, almost inevitably against those of the public. I understand the case to be made for unions, but find it most compelling when applied to the private sector. A publicly-chartered corporation enjoys a variety of rights and privileges conferred by the state; in the private sector, allowing employees to unionize can level the playing field, providing them with a corporate body capable of squaring off with the corporate bodies that employ them. But in the public sector, I'm troubled by the notion that we ought to have a level playing field between the people and their hired agents. 

These are just off-the-cuff musings. And I want to stipulate a few things. Often, for one, unions can force settlements that are in the interests of both the public and their membership - having capable, hard-working, and empowered public employees serves everyone well. For another, most public employees work hard, receive little in the way of up-front compensation, and gain small respect for their labors. I don't in any way mean to impugn their integrity. Indeed, a great deal of my concern is whether the present system actually serves their interests well. Finally, I want to make clear that the present situation is the result of a complex chain of historical events - public employee unions were modeled on their private sector counterparts, and many of the privileges they enjoy were offered to them in lieu of pay by cash-poor governments. And now, they're criticized for having accepted them. I don't want to vilify them - at worst, they are holdovers from an era when the conditions they preserve were endemic to the workforce. But neither is that an excuse for preserving the status quo.