On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce.
Unsurprisingly, his 1Ls aren’t ready for a statement that deep, that real.
Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.
The point isn’t that they will, or do, or even do so often that it’s a pervasive problem. It seems that way sometimes, but it’s not. Given the number of police interactions daily, the number of people killed by police is a relatively small number. But for the person killed, the family and friends of the person killed, the number one is all that matters.
What makes this profound is that, in a nation with so many acts proscribed by criminal sanctions, each of which brings with it the myriad enforcement techniques employed by law enforcement to obtain compliance and, per the First Rule of Policing, protection of the officer from threat, real or imagined, the opportunities for death, the killing of a human being by the volitional act of a law enforcement officer, are innumerable.
Every law, from those proscribing the most dangerous, morally culpable conduct, to those prohibiting the use of a truck with the wrong sort of bond to remove cargo from a restricted port, carries the potential for death. That’s what gives rise to Carter’s point: are we ready to kill to enforce that law. Is that law so important to society that it’s worth the death of a human being?
Lest we see this as some other guy’s problem, meaning that we can tolerate a death provided it’s not ours or someone we love, none of us is so pure as to be above the potential of being the next target. Harvey Silverglate’s Three Felonies a Day makes this point. Carter points to Douglas Husak’s book, “Overcriminalization: The Limits of the Criminal Law,” as well. If this wasn’t enough, every hour or so, another overheated advocate screams for new crimes to be created to end whatever heart-rending plague bothers her most.
Not only do these demonstrate that none of us is Caesar’s wife, but even with the extraordinary scope of possibilities for “good, law-abiding citizens” to be turned into criminal defendants at any moment, we are still at risk.
The fact that we’ve done nothing wrong doesn’t preclude an interaction with law enforcement, whether mistaken, misguided or just because we happen to be in the wrong place at the wrong time. Even if the cops are shooting at the bad dude, and we’re merely walking by, wholly unrelated and unaware, and the bullet misses its mark as they so often do, and strikes us down, we are just as dead as if we were its intended target.
We give police guns for a reason. It’s so that they can protect themselves and us (theoretically) from harm from people who would engage in acts of violence. Some crimes are for conduct that we all agree must be prohibited, and are performed by violent people who will not cease because a law is enacted or we command them to stop. Some will persist in their violent ways, and police must be equipped to stop them.
But those same guns that we imagine will protect us from a violent encounter with a criminal work the same when police interact with a person whose putative crime is selling untaxed cigarettes, one at a time. Eric Garner’s death was the impetus for Carter’s post, more particularly the claim — which, as I’ve explained before, may be part of the myth of the case but I do not accept — of what Garner did so wrong that it resulted in his death:
But, at least among libertarians, so has the law that was being enforced. Wrote Nick Gillespie in the Daily Beast, “Clearly something has gone horribly wrong when a man lies dead after being confronted for selling cigarettes to willing buyers.” Republican Senator Rand Paul of Kentucky, appearing on MSNBC, also blamed the statute: “Some politician put a tax of $5.85 on a pack of cigarettes, so they’ve driven cigarettes underground by making them so expensive.”
This is both true and wildly inaccurate. Pretending the claim to be true, Garner was, by extension, killed for selling “loosies,” but he was really killed for not being compliant. Whether it was cigarettes or drugs or murder, Garner would be just as dead. The only difference would be our acceptance of the worthiness of the use of force, the need for police to forcibly take him down, there and then.
To a cop, there really isn’t any question that the officers were justified in taking Garner down.
All I’m saying is that cop needed to arrest him. Once that was decided on, they had to take him in one way or the other, and he didn’t want to go … but maybe there was excessive force used. I won’t say there wasn’t.
While outsiders, us, may question the need for arrest, the need for force, the need for so much force, the cop’s eyes see if differently. Assuming “loosies,”* the cop “needed to arrest him,” and what followed is nothing more than what follows any time a cop “needed to arrest” someone, whether for selling an untaxed cigarette, murdering a dozen nuns or, well, doing absolutely nothing.
And sometimes, the gun (both real and a metaphor for any use of violent force) we give the cop to protect him and us from a violent criminal just goes off, and the person it strikes is just as dead as anyone else. Every law we enact, every crime we create, every sanction we mindlessly impose to get people to comply with regulations, whether important or trivial, or even protectionist for some law-maker’s campaign contributors, sets in motion a string of potential events that could result in the killing of a human being.
Is it worth it? Is it worth it if the person killed is someone you love instead of some guy you never met? Is the need for that law, that regulation, that sanction, so overwhelmingly important that you are willing to kill to enforce it? The cop may pull the trigger or choke the life out of the person, but it’s us, all of us, who condone the killing in our name. The cops just do our dirty work for us, but we are responsible for their killing to enforce our will.
* “The thing that nobody hears about in the media is that Garner had been arrested for this before. The store owners, they had been … saying he was taking away their business. These people pay their taxes; they pay for tobacco licenses. They wanted him gone.”