Under Color of Authority

I have been as dismayed and as angry as anyone else not directly involved in it about what happened in Minneapolis to George Floyd.  I am relieved that the police officer responsible has been arrested and charged, and cautiously optimistic, given the rather definitive video evidence of what he did, that the charge will be sustained at trial so that he – and, perhaps, the others who could have but did not stop him, and the police department that employed them all – will be held accountable.  I am also heartened that, for once, the blue wall of silence seems to have been breached: that individual policemen and the unions that speak for them are announcing their own anger and dismay, rather than circling the wagons in defense of the role despite the indefensibility of the person playing that role.  That won’t help George Floyd.  But it might begin to change the policing culture that made a victim of him.

But I am not in the streets protesting.  I am temperamentally conservative: my first instinct is to mend institutions rather than to topple them; and, in this instance, the overall institution of The Law – distinct from those few individual Minneapolis policemen and the Minneapolis Police Department – seems so far to be fulfilling its duty to hold the villains to account.  I suspect that a slew of well-publicized convictions of police officers for being derelict in their duty, or, as in this case, for crossing from dereliction well over the line into criminality, will have a more positive effect on the culture of policing than street rioting will.  I am also 1500 miles and a cultural chasm away from anyone and any institution even remotely connected to the event, so any physical protest I mounted would be, of necessity, directed at people who bear no responsibility for what happened and hold no power to change it.  And I am, at any rate, socially distancing to protect my aging relatives from a case of Covid that I might carry to them.

I have also not broadcast my outrage to the world in a tirade on Twitter or on Facebook, nor have I ‘liked’ or linked to the outraged tirades posted by others.  Honestly, what expression either of dismay or of anger could I add that hasn’t already been said?  And, among the millions already doing so, who would either notice or care if I did?

Instead, I have written this to the people who are not outraged or who are, at least, not as outraged as I think they ought to be.  It is for people inclined, out of respect and deference, to give the police the benefit of the doubt; it is for people who are concerned about law and order more than they are about victimization and oppression; it is for people who fear the stranger in the shadows more than they fear the stranger behind the badge; and it is, perhaps, for the few remaining strangers behind the badge that seem as yet unsure and uneasy about who here was the victim and who was the perpetrator.

Perhaps I can make them understand.

 

31 May 2020

The Uniform Code of Military Justice decrees that members of the American military are obliged to obey the “lawful orders” of their superiors in the chain of command.  The modifier – “lawful” – is not a mistake or a trifle placed there to appease the civilian populace by applying a veneer of civility over the inherent incivility of the military enterprise.  It is taken quite seriously, for there is an implied equivalent duty: to avoid obeying, or issuing, orders that are “unlawful”.  In the long history of American military justice, stretching back to the post-revolutionary period, “I was only following orders” has never been accepted as a valid defense against prosecution for acts that were otherwise indefensible.

That responsibility is, however, also a burden, for the line between what is and isn’t “lawful” is not always wholly clear in the fog and the chaos of combat.  Yes, it is defined narrowly by various internal regulations and external treaties that clearly prohibit things like torture and the killing of non-combatants.  But it is muddied by questions like who is and is not a legitimate “combatant” on a battlefield without uniforms or a front line; and it is also defined more broadly and ambiguously by the generalized oath to “…support and defend the Constitution of the United States…”.  Neither refusing an order that is later, in the clear light of deliberation, determined to have been, indeed, lawful nor following an order that, in the judgement of comparable hindsight, is deemed to have been unlawful is an act readily, if ever, forgiven.  I can’t speak directly to what others have experienced in different places and at different times, but in my pre-commissioning training, during the period shortly after the ignominious end of the American war in Vietnam and shortly before the as-yet unanticipated denouement of the Cold War, the question of what did and did not constitute a “lawful” order was a topic consciously deliberated, not avoided or shrouded in mystery or shame.  It was something the military officers and officers-to-be around me took to heart.

Within a war zone, the military grants its soldiers, officers and enlisted alike, a great deal of authority to act in ways wholly beyond the bounds of what would and should be considered “civilized”.  They are granted that authority because their very purpose is to form a bulwark between the civilization to which we aspire and existential threats from those who would forcibly overturn it.

But, that authority, while expansive, is not absolute.  In granting them that authority, the military also demands an equivalent accountability: there are things, even in the hell of combat, that soldiers may not do.  As a society, we authorize the military to wield deadly violence in our name; and, in return, we require it and its officers to apply proper discretion and restraint in deciding when, where, and how such violence is and ought to be applied.  As with any human institution, the enforcement of that accountability sometimes falls short of our ideal.  But that ideal is, nonetheless, the goal.

The most fundamental of those restraints is written directly into the Constitution: the ultimate “superior in the chain of command” to whom soldiers are answerable is not a military official but a civilian – the President; and the President, himself, is (at least in theory) constrained in his authority to order that military into action by the directive that only the Congress has the authority to declare war.  But, beyond that, the oath you swear upon entering the service is not specifically to obey the President but to defend the Constitution.  Each individual officer – and, indeed, even the lowliest foot-solider – is deemed also to have a personal moral responsibility for their own actions, whether operating under orders or on their own initiative, that transcends blind obedience to the chain of command.

We grant a similar authority – to wield the uncivilized powers of force and restraint in our name – to the various domestic police agencies that protect us from those who threaten our civilized existence in smaller, less existential ways.  Recognizing the lesser nature of the threats they handle, and recognizing that that they operate among us, within our civilized communities rather than in some remote and uncivilized war zone, we grant them concomitantly less authority than we grant to the military: the job of the police is to operate within the bounds of the rule of law; whereas, the job of the military is to operate in the absence of the rule of law, where the rule of law has completely broken down.  Nevertheless, we do grant police the authority to use some uncivilized means to defend us against those who eschew the restraints of civilization.  And, as with the military, we expect them to exercise that authority in the light of an equivalent and reciprocal responsibility: to apply proper discretion and restraint in deciding when, where, and how those means are and ought to be applied.

In fact, the responsibilities we demand of the police are, and should be, in most ways more constrained, rigid, and unforgiving than the responsibilities we demand of soldiers.  Soldiers can presume they are operating primarily among their enemies while looking out for and avoiding the few innocent bystanders.  Police, on the other hand, move and act primarily among innocent bystanders while keeping a watchful eye out for the few genuine enemies.

Policing demands discipline: the discipline to deploy force as a last resort, rather than as a first resort; and the discipline to limit the level of that force to what is truly and reasonably necessary, rather than to what is easy and expedient for the police.  And, if soldiers, even within the maelstrom of battle, are still expected to act both lawfully and morally in exercising their authority over violence, how much more should we expect our police to act similarly, to uphold and adhere to the laws – and to the standards of decency – they are sworn to defend?

 

Policing, perhaps more so than any of the professions and positions that grant people coercive authority over other people’s lives, is a public trust.  The power all such public offices legitimately wield is limited to what we have collectively delegated in trust to them; and they wield that power legitimately only under our collective moral authority and in our name.  Yet, policing is more so a trust than most because it is the point of the spear, the focus where the rules created by politicians and bureaucrats prick the flesh of the citizens who must abide by them.  Certainly, police are there to protect us from the violent and the larcenous and the reckless among us.  But they are also the enforcers of whatever order and harmony and duty our governors have decreed is good and proper for us.  They are both our guardians and our warders.

When the police act as guardians, we properly tend to afford them a heartfelt respect and a great deal of deference.  Protecting us from predators can be a dangerous enterprise and we value the security such protection brings us enough to accept some degree of direction, and even compulsion, in trade for it.  However, even those inclined toward an extreme deference to the police are often less sanguine about accepting their authority when they are acting in their role as warders.  You might have great respect for the policeman who tracked down the burglar that broke into your house; but that doesn’t mean you will necessarily accept a speeding or parking ticket with either enthusiasm or grace.

Our perception of the police, and the amount of deference we grant to their judgement over how they exercise their authority in our name, depends almost entirely on which role, guardian or warder, they seem primarily to play in our lives.  A guardian is, after all, presumed to have our best interests at heart and, so, we are inclined to trust them and to give them a wide latitude in exercising both judgement and authority on our behalf.  A warder’s role, to the contrary, is to enforce someone else’s interests upon us.  That limits our enthusiasm for their judgement and their authority.

The two roles are not wholly separable: to protect us against harm often requires suppressing the actions and urges of those who would cause harm.  How we view those actions, then, depends which side of the transaction we find ourselves on.  And not all such transactions are so clearly delineated.  Speed limits are intended to protect us against harms caused by recklessly fast driving.  Yet, you may consider the specific speed limit being enforced upon you to be unnecessarily and irrationally low and may, therefore, resent the fact that you are asked to comply with it.  Receiving a parking ticket for over-staying the meter by a few minutes in an otherwise empty parking lot may seem pointless and petty.  Being stopped and questioned for even lesser or more absurd offenses – or for offenses that are not offenses at all, or for things perceived or presumed rather than observed, or merely for looking like someone else or for looking out of place – may feel like downright harassment.

And, the police, themselves, are not immune to the effect that role plays in attitude.  Being a warder requires, almost by definition, an assertion of authority for the sake of authority.  Rules may or may not have a reasonable protective basis but the job of the enforcer is to enforce them, regardless of that basis, not to justify them.  If and when the police begin to view the mass of people they encounter in their daily rounds as a horde that must be regulated, rather than as individuals who must be protected, they become primarily warders, not guardians, and it is almost inevitable that they will make a corresponding psychological shift away from service and toward domination.  When that happens, it becomes all too easy to over-step: to begin to see their own authority as an end unto itself, rather than a means, and to self-justify a slow expansion of that authority past the legitimate bounds of what we have delegated to them.

 

There is a legal term to describe such an assertion of authority beyond that which has been legitimately delegated: acting “under color of authority” – that is, using your legitimate authority, and the deference afforded to it, as “color”, or camouflage, to mask the usurpation of some further and illegitimate authority.

Most of us have seen minor examples of such things as we go about our lives: the State Trooper who blows by you on the highway at 85 miles per hour, only to be found 3 miles down the road parked in the median with his radar on to catch and punish speeders; or the frequent reports of police using the general “authority of the badge” to confiscate cell phones and cameras from people filming their public activities, despite the fact that courts have repeatedly and pointedly ruled that such filming is wholly legal.  Those are personal and idiosyncratic examples, troubling but, perhaps, of relatively little consequence.  There are, however, many examples both more systemic and more severe.

The police have a legitimate authority to intervene when there are reasonable grounds – a “probable cause” – to believe that someone is committing a crime; but the Bill of Rights in the U.S. Constitution specifically prohibits searching for and seizing evidence of a crime when such searches are “unreasonable”.  We must trust the police to exercise proper judgement about what is reasonable and, indeed, about what is a crime, but that trust is not always warranted.  The “Stop and Frisk” policy made famous by the New York City police department under Mayor Bloomberg, for example, asserted the “color” of legitimate authority – to intervene in the commission of a crime – in order to mask the illegitimacy of the reasons used to justify such intervention: such searches were, all too often, the result of improbable cause; and they were also, in the end, all too often unrelated to any actual crime.  One could make a similar argument about the level of scrutiny applied to drivers during a “routine traffic stop”.  The first thing the officer asks for when you are stopped is your license and registration, which he then checks for validity in the computer systems of the DMV.  But, what is the reasonable connection between, for example, a tail-light bulb that has burned out – the natural and inevitable result of age and use, completely unrelated to any act of human will – and the possibility that the driver might be committing the crime of driving without a license or a valid registration?  And, in the extreme, what could such a malfunctioning tail-light possibly suggest about whether or not, for example, there were drugs in the car that would justify a search either by hand or by dog?

Similarly, the police have a legitimate authority to forcibly restrain someone who is reasonably suspected of having committed a crime; and, in the extreme, if someone is presenting a clear immediate danger to other human lives, that forceful restraint may legitimately become fatal.  But the authority to use force is not open-ended: the suspicion must be “reasonable”; the threat to human life must be “clear” and “immediate” and must represent an actual “danger”; and, in all cases, the amount of force applied is supposed to be proportionate to the need – the least amount necessary to achieve the immediate objective of preventing escape or violence.  Beating people up, or killing them, for “resisting” restraint is not an exercise of legitimate authority; and shooting first because you “thought” there was a threat that turned out to be a phantom is not proportionate and is, therefore, also not legitimate.

It is, perhaps, ungrateful and cruel to say that to the police who do, indeed, risk their lives on our behalf, but it is also necessary: The authority to employ force against people is not trivial but momentous; the responsibility to exercise that authority properly must, therefore, be equally momentous.  We have delegated that authority to you, and you exercise it in our names; but we have not delegated that authority to you without bound and we demand that you respect the bounds we have placed on you.

It is your responsibility to protect the innocent at least as much as it is your responsibility to restrain the guilty; and it is not your job to pronounce on who are the guilty among us but to keep order, when they threaten chaos, for long enough to allow others to make that judgement.  When you fail to protect the innocent, you have failed in your duty.  When you fail to protect the innocent by operating under color of authority, you have not only failed in your duty but have implicated us in that failure, as well, by asserting that you did so on our behalf and with our moral blessing.  We might forgive a mistake; we should not forgive perfidy.

You may say that holding you to such standards “ties your hands.”  To that charge, I answer “Absolutely!”  You are a policeman, not a soldier, and you operate among civilians in the streets and homes of our towns, not on a battlefield.  If we ever decide that those streets and homes have become, indeed, a battlefield, we can declare a war and send in the soldiers.  In the meantime, I refuse to delegate to you a military level of authority, discretion, and deference to deal with what is, and should be, a matter of law!

 

We cannot begin to understand the current cultural outrage over police behavior – Black Lives Matter and Colin Kaepernick taking the knee and riots in the streets over George Floyd’s death – unless we first acknowledge that a great many people feel the efforts of the police more as a yoke than as a shield because the police act toward them more as warders than as guardians.  We cannot begin to understand the depth of cultural outrage over police behavior unless we first acknowledge that the yoke is made heavier by indignities, both petty and substantial, that the police inflict, often and, on occasion, with malice, upon people under color of authority.  And we cannot begin to understand the breadth of cultural outrage over police behavior unless we first acknowledge that color of authority – of authority exercised in our name – makes us all, by implication, the masters of that yoke.

The police act on our authority and in our name.  That gives us a corresponding responsibility to act, as well, when they step beyond reasonable bounds we have set.  And, if we don’t act – if we relax and extend those bounds, either intentionally or simply by failing to accept the responsibility to rein them in – then we are, as well, responsible for the consequences.  Color of authority becomes actual authority if we acquiesce to it; and, therefore, the moral stench of that authority, when exercised indecently, adheres to us as much as it does to whoever exercised it on our behalf.

The protesters want justice, but not the kind that a court can give them by convicting a particular villain.  Their protests are not really directed at the police or at the courts or at the politicians: they are directed at us.  And what they are demanding of us is simple: “Step up!  Stop accepting the unacceptable! Rein in those who claim to act in your name!”

That is, indeed, our responsibility.  How can we do less?

 

© Copyright 2020, Augustus P. Lowell

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