Rights, Plus

There were six officers involved in Freddie Gray’s death and still no one has a clue how his spine came to be nearly severed, his voice box crushed. Meet the Law Enforcement Offices Bill of Rights.

A few lone voices in the wilderness pointed out that this presented problems.  Mike Riggs was one, Radley Balko another. Walter Olson as well (edit: plus a new post today in Newsweek).  But until there was a name, a face, put to the problem, few cared.  Now it’s Freddie Gray’s turn, and the New York Times made it the subject of a Room for Debate.

Many in Baltimore are enraged not just by the death of Freddie Gray in police custody but by the mystery that surrounds his death after a ride in a police van. This mystery exists because the officers who could say what happened are protected by a Law Enforcement Officers Bill of Rights, which limits and delays questioning police about potential misconduct. The idea behind such laws in 14 states, and similar contractual rights in some jurisdictions, is that no one should be forced to speak to investigators and possibly incriminate themselves.

Do such measures protect the constitutional rights of police, or do they unnecessarily impede investigations of possible wrongdoing?

The question is posed in such a way as to compel an obvious answer.  The police have no “constitutional rights,” beyond those protected for every individual.  But these are statutory rights, or collective bargaining rights, and as explained by Ken White, provide a measure of protection for police officers that is afforded to no one else in our society.

The question is whether cops deserve it, need it, should get that protection beyond any other person.  Chuck Canterbury, national president of the Fraternal Order of Police, argues the point:

The right to due process, enshrined in our Constitution, is one of the cornerstones of our republic. The existence of this right – that everyone is presumed innocent and that everyone is entitled to a fair hearing – is woven tightly into American society. Why should this not be true for police?

It should be true.  It should be true for everyone, but yes, that includes cops.  Except for one detail.  Policing is an occupation, a job that an individual does.  Part of that job is that he fills out forms, explains what happened in an incident, reports back to his superiors.  When a cop goes on duty and gets involved in an interaction with a person, his job isn’t to disclose it to his superiors only if he feels like it.  So let’s distinguish between the person and the job.

The person who holds the position of police officer is entitled to the full panoply of rights and protections that are, or at least should be, provided every person in this nation.  The police officer, an official position as an agent of the government, has no constitutional rights, but only such rights and duties as the law and his collective bargaining agreement provide.

Police officers have a very tough job.

Lots of people have very tough jobs.  Those who aren’t up to the challenge should be in other, less tough, jobs.

Charged with keeping the streets and neighborhoods of this country safe from crime, their lives are on the line everyday.

They are also charged with public safety, with protecting and defending the constitutional rights of the public, and with not being the source of crime rather than the solution.  While saying their “lives are on the line everyday” makes for a good public relations pitch, it’s a bit of a gross exaggeration. Sometimes, yes. Most times, no.

With the authority and enormous responsibility that comes with a badge, police are rightly held to a much higher standard of personal and professional conduct.

The first inclination is to say, “hell, yeah,” to this assertion. But upon deeper reflection, not really. The police are “rightly” held to the standard of police. We are all held to the standard of conducting ourselves in accordance with law, but the law provides latitude for police that no one else in society shares. Their standard is hardly higher, though it is certainly different.

This higher standard and increased visibility renders police vulnerable to unfounded scrutiny.

We are all “vulnerable to unfounded scrutiny,” sometimes from the police. But Canterbury’s real argument is that police are “more vulnerable to unfounded scrutiny” than anyone else, which would justify why the police get a different “bill of rights” than anyone else.  That is, after all, the question before him.

So is this true?  Of course it is.  While the public doesn’t hear much about the unfounded accusations, there is no shortage of claims that are utterly baseless, nonsensical, manipulative lies and just plain wild. People allege all manner of crap against cops, as they’re angry, hurt, trying to get away with something or just think they can play the system to their own advantage.  So yes, cops are more vulnerable, as their job puts them in the line of fire for unfounded accusations.

But they are also subject to well-founded scrutiny, and that too is the nature of the job. From needlessly offensive interactions, to improper use of force, to sexually assaulting women when you think no one is watching, to killing people who piss you off or make you sweat, this conduct demands and deserves scrutiny, as well as the consequences that flow from it.

Does the former trump the latter? Is it more important to protect police from the “unfounded accusations” than to hold them accountable for their misconduct?  While the LEOBORs serves to protect cops from the crazies and the liars, it similarly protects them from accountability for the Freddie Grays, and the, well, you know the long list already.  The question thus becomes which is more important.  Canterbury gives the cops’ answer:

These laws and contracts do not protect the jobs of “bad cops” or officers unfit for duty. Nor do they afford police any greater rights than those possessed by other citizens; they simply reaffirm the existence of those rights in the unique context of the law enforcement community.

This is, of course, a lie. They do indeed afford police greater rights than those possessed by other citizens. Far greater rights, so much so as to render this assertion ludicrous.  And it does, despite Canterbury’s claims, protect the “bad cops” along with those who aren’t bad, at least in that instance.

Had Canterbury contended that the need of police to be protected from unfounded scrutiny was so great as to justify protecting the killers, the maimers, the beaters, the cop who thinks every sentence needs to include the word “fuck,” his argument would at least be honest.  But it is not honest, because honesty would be unjustifiable.

That a cop who has done nothing wrong will have to subject himself to scrutiny for unfounded accusations makes him just like everyone else in this nation. And as we all suffer the risks of scrutiny, he too will trust in the system to arrive at the right outcome.  Just like the rest of us, he too will do so at his peril, for the same reasons as the rest of us.

But protecting the killer cop has no justification.  And Canterbury’s effort to pretend this doesn’t happen puts the lie to the Law Enforcement Officers Bill of Rights, which enables bad cops to do bad things without suffering the scrutiny that their job, their duty, their responsibility as a member of society, demands.  Like every other American.


16 thoughts on “Rights, Plus

      1. Bartleby the Scrivener

        In his defense, they forgot to tell him it was a roller coaster before he got in.

  1. John Thacker

    “While saying their “lives are on the line everyday” makes for a good public relations pitch, it’s a bit of a gross exaggeration”

    Especially if they don’t call for special treatment for construction workers, fishermen, truck drivers, miners, and other jobs that are more dangerous than police officers. I accept, because I have no choice, that bias will mean that police officers are not treated the same by the system as the rest of us. That is how all systems work. Writing privileges into the law is gross.

    1. SHG Post author

      I’ve never been as “overwhelmed” by the BLS stats showing other occupations as being riskier than police officer. The difference isn’t quantitative, but qualitative. The nature of the danger is different. That said, most cops don’t risk their lives every day. Most cops never shoot their guns in a career. So while it happens that their life can be threatened by a criminal, to say they put their lives on the line every day is just a wildly exaggerated claim. For me, that’s enough of a reason to shoot it down.

      1. Bartleby the Scrivener

        Even if they were under greater risk it wouldn’t justify the multi-tiered justice system we have today. ‘Equality’ does not mean ‘the rights of the plebeians are ignored when the cops think it’s appropriate.’

        After reviewing the risk stats, I bet pizza delivery drivers are at greater risk than cops.

          1. Fubar

            I once crossed an apple and Chevy.
            It made pie that was really quite heavy,
            With a V8, four door,
            And four on the floor.
            Don McLean drove it off to the levee!

      2. John Thacker

        The qualitative difference is that the violence is generally done by another human instead of “nature.” But you still rarely see people argue that we need to loosen environmental restrictions on mountaintop removal mining because mining is so dangerous, or not question fisherman about breaking environmental regulations because they put their life on the line everyday in a way that the police don’t.

        Most cops don’t serve in dangerous areas, either. Yet the cops of suburban Maryland (Howard County can enumerate their number of dead officers all time on one hand, and that includes “suffered a heart attack while struggling with a female prisoner in 1947”) fight for the LEOBR with the same sort of “life on the line” nonsense. Granted that means that the officers who do serve in high risk areas face a higher rate than the BLS stats would show, but you’ll still never see the police unions say that that means that such extra protections are only needed in high crime areas.

  2. John Barleycorn

    Blind Squirrels for one Bill of Rights equally tossed for all.


    P.S. I wouldn’t mind, mind you, if more than a few sections of the Special Patients Bill of Rights applied to me the next time I come down with some sort of disease or even the flu but I can roll with the original if we can all agree to dust it off.

  3. Marc R

    What other job gives you a specialized Miranda warning, without needing custody to trigger it, that gives you a 14th amendment right to not answer questions which can result in a department paid suspension through a criminal investigation? (Garrity v Jersey). Representing officers is one of the easier classes of clients to deal with.

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