Comply or Die

In the United States, you can be killed for resisting arrest. In this sense, our country is as much a "police state" as any place where you can be killed for resisting the government. Before anyone goes reactionary on me, I don't intend to say that suspects have a right physically to resist arrest. The issue isn't a suspect's right to resist, but a cop's right to kill, even when there's no actual resistance. Just yesterday a Phoenix man was shot down while reaching for a pill bottle. Even in such a case I'm sure someone is saying, he should have known better than to reach for anything. In all such cases police apologists ask what the problem is with obeying an officer's instructions. Do they really want to affirm that failing to obey merits death? Depending on the circumstances, you may not have too much sympathy with someone who gets his ass beaten, or gets himself tazed, while resisting. But as the stakes increase responsibility shifts to the person with the power to kill. Police apologists are concerned only with the stakes for the cop. How often have you heard or read how making police accountable for killing through excessive force will make them less effective in a real crisis when quick reactions may save his life? What this means is that since killing is justified when the cop's life is truly in danger, it's also justified when it is not in danger. Does that follow? Maybe the apologists want to say that a policeman is always in danger, and therefore always has the right to kill -- must enjoy immunity from prosecution or accountability to the people -- when he's on duty. In the Eric Garner case, it's been said that the cop whose chokehold hastened Garner's demise could not be indicted unless the grand jury suspected premeditation (impossible under the circumstances) or malice on the cop's part. It begins to look as if the national standard is that a cop can't be indicted unless he's heard shouting, "Die, N----r!" or whatever he might shout to people of different races.

Apologists for the grand juries rightly emphasize respect for the rule of law. No cop should be indicted merely because the family of the dead man feels bad. Somehow, however, the de facto exoneration of lethal cops seems to violate many people's idea of the rule of law. The problem is that their idea -- their sense of justice -- isn't really the law. They have to make law, or at least try. Ideally the recent atrocities will inspire a true democratic moment in this country. One group of Americans insists that police must be held accountable in the criminal justice system when they kill unarmed people. Another contends that police must enjoy the benefit of the doubt in such cases, from the law and the public alike, in order to protect us effectively.  No theory of natural law gives us the right answer to this question: the people as a whole must make a choice. We either demand accountability, at whatever cost, or we give police something like impunity, at whatever cost.

In this debate, the race question isn't irrelevant but easily can become a distraction. At the risk of offense, the issue of black Americans' relations with police is a separate but equal issue tangentially related to the larger question of police procedure. Making the police issue a race issue primarily makes it too easy for reactionaries to shift the debate to issues like black crime, "black culture" or the allegedly irrational hostility of blacks toward police. Whenever largely black crowds protest the shooting of a black person by a white policeman, some reactionary asks why they aren't marching when blacks are killed by blacks. That's the trap protesters set for themselves when they portray race as the deciding factor in incidents like the killings of Garner and Michael Brown. If you suspect blacks of having double standards, or of caring only for their own and not the rule of law, the question to ask them is why they don't hit the streets, if they actually don't, when unarmed people of other races are killed by cops. It does happen, and all too often. Also, while it may suit some black people to treat killings by police as a conspiracy against their race, it hardly helps coalition-building to say that, since if anything you'd minimize the sense of danger others should feel. Black people may have a claim to moral leadership on this issue, but could surrender it if they assert it too exclusively. That being said, distaste for it being treated as a race issue shouldn't dissuade anyone from dealing with the problem in its true scope.

Issues like these show one of the limitations of our political order. It's clear that millions of Americans would like to have new rules governing the use of lethal force by police. Inevitably, their impulse will be diluted by the imperatives of electoral politics and representative government. The conventional answer to the sort of complaints raised over the past fortnight is, "Elect leaders who will change the law." But electing representatives inevitably involves tradeoffs on priorities, especially when a party system superimposes itself on the constitutional frame of government. The only real test of the will of the American people will be when the specific question of criminal (or other) liability for cops who kill unarmed people is on the ballot as an initiative or referendum. We shouldn't have to worry about who (or what party) represents us in the legislature before declaring our will on a subject like this one. There are times when the people should speak directly, and this is one of them. If our political order can't facilitate such a resolution, that would be another mark against the Framers and their successors. Should politicians or the people as a whole make the rules for the police? If we can't answer that question, cops will keep on being a law unto themselves.