When we talk about problems with the police we cut right to the chase. Philando Castille. Michael Brown. John Crawford, Eric Garner, Andy Lopez. We leave this list of people who were killed by police to evidence itself. The list goes on and it’s as staggering for its sheer length as it is for the tragedy involved in each name. No convictions were achieved against the officers in any of these cases and for us that’s clear evidence of a problem with our system of justice.
Word for word reenactment of the grand jury testimony that did not bring charges against Michael Brown’s killer.
Yet still our work never seems to be done. The only national figures on how many people the police kill annually are compiled by newspapers, and even that has only been happening since the Washington Post dedicated its own investigative resources to combing the records of major cities in 2015. The list has become a kind of disembodied national monument to the victims of police brutality, and yet for every individual name that crowds its way onto the list, police are able to supply an alternate interpretation of the events. No matter how flatly implausible those interpretations seem to us as the common law community, as long as it’s possible to dispute the meaning of what happened, generally the fact that there is a dispute is enough for the police to get off the hook.
Andy Lopez was 13 years old when he was shot in the back for carrying an airsoft gun. 1039 people were killed by the police in the US in 2021, according to the Washington Post.
We find ourselves standing on the outside, watching a system that was designed to protect the innocent as it’s used to embed a culture of consequence free government executions. There’s some kind of trick going on here, a catch-22 that seems to be the crack in our legal thinking that will spread into a wider crumbling of democratic life if we don’t get it under control. Needless to say debates on the subject get pretty heated. Especially since body cams, cell phone cams and the internet have flooded us with eye witness recordings of pointlessly brutal police episodes, we seem to have hit a certain limit with the ground there is to gain. What can we do but shake the evidence in the face of our courts? We’re as out of justifications as the police are out of excuses. We can’t prove it anymore, so we simply insist, raising our voices and flooding the streets until the truth that kills our people is recognized for what it is.
John Crawford was shot for carrying a BB gun that was for sale in the store he was shopping in, in a state with an open carry gun law.
Evidence is like that. The idea that we need to convict people beyond a reasonable doubt assumes that we’ve got a legal system with a grip on what’s reasonable, and if we already had that, we probably wouldn’t have the world’s largest prision population and about a thousand police related fatalities every year. Disputes are something we use the government to settle, so a dispute with the government is generally not going to be settled until they’re good and ready to settle it. In police shootings this looks like the absurd defenses used in the Eric Garner trial, where intellectual backflips were done to make it seem as though selling loose cigarettes and breaking up fights have been in the NYPD hand book as choke-to-death offenses for the last hundred years. The point is that no police handbook would be ridiculous enough to command the officer to behave the way he did, but as long as the NYPD had its heart set on disputing their responsibility for what happened, they were going to be able to cobble together some kind of rationale, and since they’re fully allowed to decide what rationale they use, their reasons don’t have to make sense. As long as they can show up to a trial with an excuse of any kind, they’re more or less clear.
Eric Garner being choked to death. New York has passed a law that makes police chokeholds illegal, and they’ve named the law for Eric Garner
So then we’ve hit a wall. The current strategy of people who want police accountability is one that’s a fairly well tested progress strategy throughout American history, which is to stand outside that wall and scream at the top of our lungs about it for at least a century, until we get a watered down excuse for what we really need, and reset the whole process. I have no intention here of asking anyone to pump the brakes on that front even for a second, I only mean to suggest that we probably need more than one front if we really want to close in on the change we need. The problem we’re dealing with is in large part a problem with the eternal disputability of evidence, and while that seems like an intellectual problem, it’s very much a life or death problem that police brutality footage has been shoving down our throats since the days of Rodney King.
So then another way around this police brutality wall might be to ask ourselves: How we can argue for police reform without the use of evidence, while at the same time making a legally serious point that our legislative and judicial systems could plug right into? The first step in answering that question, comes from looking at the basics of how our laws already talk about the way things like guilt and liability are created.
Imagine a man laying bricks on a roof. He accidentally knocks one off the side of the roof and it strikes a man in the head, killing him. Nobody would call this man a murderer. It was a pure accident and provided no safety codes were violated during the building process, he’d likely escape legal consequences of any kind. Imagine though that he waits for the man to walk by and then throws the brick at his head on purpose. That’s murder, plain and simple. The bricklayer thought about what he was going to do before he did it, he knew that it would be at least a life threatening level of injury and the man actually died, like the bricklayer intended him to. On the surface the acts seem identical, but as soon as we add intention to one of them, we go from zero legal consequences to the most severe consequences our laws have to offer.
Now imagine a third scenario. The brick layer is aware of the legal difference between dropping a brick and throwing a brick. He could take steps to make sure that bricks don’t drop from the roofs of his job sites, but there is no law that’s going to make him. So he keeps his job site set up in a way that bricks accidentally fall and kill people every so often, so that he can use bricks to deliberately kill people when he wants to. In our first two scenarios, we seemed to break the bank pretty quickly on the amount of guilt the brick layer could assume. But doesn’t our third scenario involve a much higher level of guilt than anything that’s present in either scenario one or scenario two?
Oops.
For one thing, scenario three guarantees the largest amount of death. Sceario one has death by accident, scenario two by murder, and scenario three ensures a hearty mix of both. For another, if crimes become worse the more they’ve been premediated, then scenario three involves a kind of permanent premeditation that makes the contractor assume a certain level of guilt before anyone is actually harmed, in the same way that if I were to drive drunk with the intention of hitting a specific person who wisely never shows up, I’m still criminally wreckless and I am still attempting to murder someone.
Nobody is going to argue that policing is a tough job, but why is it hard? If the number one answer to that question isn’t that human lives hang in the balance, then Americans don’t want to hear it. They’ve got their own shitty jobs, that pay a lot less on average and that they can get fired from if they’re incompetent. Anything complaint about police work to the American public that doesn’t involve real concerns about life and death issues that are unique to policing is like bringing a Dilbert calendar to a plantation escape. So then let’s take our police at their word and assume that they’re killing people unintentionally, and skip disputing the evidence we have that seems to contradict that. If that’s authentically the case, then they start to look a lot like the contractor in scenario three, in so far as they’re killing people in ways they wish they didn’t, often enough that they should probably redesign the way they act on their jobsites, even if no law is going to make them.
A single Oakland police officer was paid $640,000 in one year. Even their custodian is pushing six figures.
What’s more we’d be hard pressed to assume that our police officers will never figure out what the bricklayer has figured out, given that they’re familiar enough with the law to arrest people for breaking it on a regular basis. So then in the same way that the biricklayer knows he has the ability to kill people with impunity and deliberately doesn’t stop accidental deaths from happening so that he can keep the possibility of murder open, there is a criminal level of intention in police officers who’ve had the ability to premeditate this possibility and have deliberately decided to leave it open for themselves. What’s critical about this level of intention is that it remains criminal whether or not a murder is committed. It’s essentially a threat, except that a new layer of wrongdoing enters the equation when a threat comes from the government. If you had to choose between these scenarios, would you rather have a brick or a baton dangling over your head? A brief look at the grand jury testimony in the Michael Brown case ought to answer that question very neatly. One of them is not going to miss.
Everyone is innocent until they’re proven guilty. But people can only be proven guilty of crimes by the government, who works from a different, basic set of assumptions than any one person accused of a crime. There are plenty of basic ideas that we fought wars to prove so that we don’t have to prove rhem again. Probably number one on that list is that absolute power is automatically guilty, regardless of how well behaved anyone who has it might be. Democracy is the assumption that absolute power is wrong by itself. What’s more, our system of checks and balances presupposes that simply watering down absolute power isn’t enough to cure its failings. Instead we need a carefully plotted separation of powers so that no one person can kick down our doors and act as judge, jury and executioner. What I’ve attempted to do here is apply these foundational legal underpinnings to the institution of the police, to articulate what I believe is a demand from within our system itself to reorganize the powers we’ve currently heaped onto our police deparments. Police policy is generally chosen at the level of individual state governments, which can vary widely from state to state and even county to county. But unless I’ve missed something, each state is still a democracy, and as long as that’s true, unchecked power can’t exist inside them.
Voting and unchecked power can’t be made to fit together. I suggest we keep voting, and remove the built in abilities police departments have to threaten their political opponents, whether they actually threaten them or not. Freedom of speech isn’t about what we say, but the feeling we have before we open our mouths, the one that knows it’s safe to speak our minds. It’s a feeling we can’t have if we’re looking up for falling bricks and it’s why we don’t need evidence to need reform.
Look out! He’s got an idea!
Princess Fantastic 