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One year ago, the team I was a part of was handed a resounding defeat by the Supreme Court in a so-called “contempt of cop” case. As I wrote at the time, I felt the ruling would further add to an already dangerous level of erosion in public trust of law enforcement. Unfortunately, this concern has been validated just a year later with not only national, but global protests of police abuse.
Of course, given all that has happened before and since, the continued loss of public trust in law enforcement was easily predictable. But the most astounding development to me in the past few years is that one can find increasing agreement from all political sides that major problems with police accountability exist. Take for example, Leon Wolf and Elie Mystal. These are two individuals who operate at dramatically different ends of the political spectrum. Wolf is a staunch conservative, the former editor at large at RedState and the current editor at the Glenn Beck-founded publication The Blaze. Mystal was a liberal firebrand here at Above The Law for many years and is now The Nation’s justice correspondent. Yet I urge you all to read the similarities given by both Wolf and Mystal in response to violent reactions against police abuse.
Both implore readers to try to understand the viewpoint of Americans who have long suffered most under a system that does not hold bad-acting cops accountable. Both agree the problem has continued for this long because a segment of America “does not really give a damn what cops do” because they know it will never happen to them. Most importantly, both agree that increased accountability of police is the most straightforward solution, and for good reason.
In his highly influential work, Donald Black argued that most of what we define as criminal acts are in reality a form of self-help, done often as a response to the conduct of someone else and in the absence of legitimate intervention by the state. In other words, most crimes are moralistic in nature, whereby people take the law into their own hands and act as judge, jury, and executioner of perceived wrongs done to them. Building off of Black’s work, Mark Cooney would show that many within the United States, such as in minority communities, are operating in a stateless environment where attempts to invoke legitimate enforcement by the state is generally met with either “indifference” or “hostility.” The result is that many have become understandably antagonistic to the law, and therefore tend to rely on the older system of self-help. Put simply, the rule of law still exists in a precarious state in this country, and it is the hostile or indifferent treatment by those who enforce the law that is a major contributing factor for this reality.
In no way do I mean to suggest all officers are bad people or do a dishonest job. But I agree with the opinions of both Wolf and Mystal “that excessive police force is punished way less often than it actually happens” and that “[i]t takes incredible strength to practice nonviolence in the face of murder and oppression.” Despite the gross flaws that still exist, however, I have made the point of stressing that over that past two decades things have gotten measurably, and in many ways, remarkably better. Of course, that does not mean excusing any of the existing harms. In fact, I would argue that social (but also peaceful) outrage is one of the best tools available in effectuating change.
From a purely legal standpoint, any day now the Supreme Court will decide whether to take on a number of cases regarding the atextual, ahistorical immunity the Court has unilaterally manufactured that shields law enforcement from accountability. One hopes that current outrage will cause the Court to reconsider this immunity, but there is also no reason to suspect it will change course. Until and unless legal accountability becomes more readily available, however, we can expect the rule of law to continue operating in a perilous state.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.