The New York Times reports that Police Commissioner Bill Bratton finds himself in the position of negotiating a compromise between his police and the mayor of the City of New York. The putative mission is to relieve the pressure created by the protest at the funeral of Rafael Ramos, the officer killed while sitting in his cruiser at the hand of a crazy.
The protest, officers in uniform turning their back on Mayor de Blasio during his eulogy, was not an exercise of free speech, but an act of insubordination and a manifest threat to the City. They will not tolerate the mayor’s “disloyalty.”
New York City mayors have long tussled with police unions, with off-duty officers rallying on the steps of City Hall or showing up at mayoral events with protest banners. But several city officials as well as current and former officers said the public protest by officers on Saturday at what was a highly ordered and solemn occasion appeared to have little precedent.
“You crossed the line,” said Eric Adams, the Brooklyn borough president, a Democrat and a former police officer. “We all played by one rule: that when you have that uniform on, you don’t get involved in the political atmosphere.”
Contrary to those who fail to grasp the nature of First Amendment rights, the cops’ protest was not a matter of free speech. When they express their view in uniform, they do so in their capacity as governmental officials. In their private capacity, they are entitled to free speech like anyone else. They are not entitled, however, to do so on duty, in uniform or using the authority of their position. They then speak as police officers, not private individuals.
And this is not only the law, but doctrinally critical. As private citizens, we are entitled to be wrong, self-serving and foolish in our views. When we speak on behalf of a government, we are not. A cop is not entitled to express his negative views on an identifiable group while in uniform, even though he has a right to hate anyone he wants as a private individual, and express those views otherwise.
When in uniform, they speak with the authority of their position; it’s not about them, but about the job. That’s the price they chose to pay when they decided to put on a shield. Don’t cry too much about it. The pension on the back end more than makes up for the infringement on their right to express their hate.
The police unions have skirted the problems, simultaneously embracing and distancing themselves from what happened. Though, it’s hard to imagine that they had no finger in the protest.
The night of the killings, Mr. Lynch and the president of the sergeants’ union, Edward D. Mullins, and a small group of other officers turned away from Mr. de Blasio as he walked past them at the hospital where the bodies of the two officers had been taken.
But on Sunday, union officials were quick to distance themselves from the display at the funeral, which they described as spontaneous. “I actually didn’t know it happened until after the funeral,” Mr. Mullins said. “I don’t criticize them for doing it. ”
Now, the commissioner feels compelled to make peace between his angry cops and the City threatened with “love them, no matter what” or suffer the consequences.
Mr. de Blasio and Mr. Bratton will meet with union leaders, but the commissioner did not hold out hope that frayed relations between the mayor and many rank-and-file officers, whose contract expired in 2010, would be quickly repaired. “It is probably a rift that is going to go on for a while longer,” he said.
Rifts between mayors and cops have happened with regularity in New York City’s recent past. The cops hated Mayor David Dinkins, and Rudy Giuliani as well. But this time, the warfare is open and notorious. This time, cops in uniform openly dismissed their duty as if they are entitled to disregard any obligation to the mayor, the City, the public, when they are not showered with the adoration they believe they deserve. This time is different.
There is nothing to compromise here. There can be no peace to be had by somehow smoothing over the hurt feelings police officers hold, whether because Mayor de Blasio told his son how to behave should he be confronted by the police if he is not to be beaten or killed by some officer for his failure to obey as well or quickly as demanded. There is no comparison between two cops murdered for being cops, and black men murdered for not being cops.
It’s not easy to be a cop in New York City, but then, no one forced anybody to take the job. If they can’t bear the responsibility, they shouldn’t wear a shield. But what part of the job is subject to compromise? Should they get to shoot one innocent guy with impunity, but no more? Should they get to toss five black kids against a wall without cause, but no more? What exactly can be negotiated to make the cops feel better about themselves, to feed their hero delusion as if anyone they needlessly harm is somehow justified because they wander the streets impressed by their unfettered authority and unquestioned support of the legal system?
If Mayor de Blasio was wrong to warn his son not to die at the hands of a cop, whose son will you be willing to sacrifice in his place?
That the police were so offended by the harsh reality that they have lost the trust of the people they exist to serve does not mean that the public’s expectation of police is now to be watered down to make them feel less unworthy. Cops are hurt? So is everyone else. But cops took on a responsibility to the public and have failed to fulfill their duty. If that offends them, then get rid of them.
There is no compromise. There is nothing to smooth over. If the cops can’t handle their job, if they can’t take the criticism of their failure to protect and serve, then pull their shields and guns. The position of police officers doesn’t exist to please cops, to make their lives happier, easier and safer.
The position exists to serve the public, to respect constitutional rights, to enforce the law with honor and dignity. Their failure to do so cannot be excused. There is nothing left to compromise.
Update: Mayor de Blasio spoke to a graduating class of the police academy today. He was booed. Murum Aries Attigit, Mr. Mayor. Who owns New York?
SHG,
My former colleague Judge Warren Urbom was assigned to try to some of the Wounded Knee cases back in the 1970s when the judge was a very young man. A US Marshal had been assassinated from long range during the siege of Wounded Knee, and the Indians were furious with the years and years of mistreatment they had suffered. Those times and trials were very tense.
The Indians who packed the courtroom and appeared as defendants refused to rise as Judge Urbom entered the courtroom. Their lawyers did not rise either. The presiding US Marshal urged the judge to allow him to take action against anyone who refused to stand. Warren told him no. The trials proceeded and Warren found some of the Indians guilty, and others not guilty. His courtroom was run firmly but gently. The Indians and their counsel remained steadfast in their refusal to stand, and Warren refused repeated requests from the USMS to enforce the customary decorum.
As the last few trials neared the end, Warren entered the courtroom one day. All of the Indians and the defense lawyers rose quietly and respectfully and then sat down as Warren settled into his seat. The only thing that had changed was that everyone had witnessed Warren’s gentle humility up close. The judges in our court that followed Warren (I was honored to be nominated to take his place) learned a lot from that episode. The mayor and the cops in New York who are all sworn to uphold the law could also learn something from Judge Urbom’s example of the civilizing value of mutual respect. In the end, respect for all is the essence of the law and the antithesis of the jungle.
All the best.
RGK
Your comment reflects an important lesson, but I’m unclear that the analogy holds here. Mayor de Blasio (who is not one of my favorite guys, by the way) serves all New Yorkers, including the poor, the minority and the non-cop who suffered under stop & frisk, which was a cornerstone of his campaign.
To show “respect” to the police, who demand to be unaccountable and immune from criticism, the Mayor would fail to demonstrate the respect due his constituents who are not police. One group exists by choice, gets paid and is sworn to serve the other. Should the mayor disregard the interests of his constituents because the truth hurts cops’ feelings?
Judge Urbom was able to overlook the disrespect shown by counsel and defendants because it was an empty gesture and, more importantly, they held no power or authority over him or the court. Cops kill. Cops arrest. Cops beat. Cops destroy lives. No, I don’t see the situations as analogous.
SHG,
Probably so. But as I have said before, I see connections that sane folks fail to see. I may need to up the dosage. All the best.
RGK
I think your point is important nonetheless. I guess my problem is that I only see the message flowing only in one direction; there doesn’t appear to be any concern on the part of police for anyone or anything other than themselves and their self-interest. They only circle the wagons tighter.
When a police union boss announces that it’s time for the cops to start showing greater concern for the welfare of all citizens by de-escalating force, respecting constitutional rights, and letting black kids walk the streets unmolested when they’re doing nothing wrong, there will be an opportunity to discuss mutual respect.
SHG,
I agree that cops must always exercise restraint and that is especially true even when their buddies have been shot and killed or rendered totally disabled by a sniper. That’s why Warren told the USMS to back down–whether the Indians stood or not was simply not important.
All the best.
RGK
Judge Urbom demonstrated the restraint and judgment that honored his office. I would hope the USMS would have shown the same restraint regardless of Judge Warren’s direction. And I now see your connection more clearly. I’m a bit dense sometimes.
Judge,
You missed the chance to pimp Judge Urbom’s memoir, “Called to Justice.” For some reason. his answer to the epistemic paradox (“tell the whole truth and nothing but”) stands out.
“by de-escalating force, respecting constitutional rights….”
That, incidentally, is the rub when it comes to bodycams: A (by your view) successful bodycam policy probably will be the effect, not the primary cause, of reducing the antagonistic views over police encounters.*
Having said that, lest one think of them as tools intended only to empower the public and monitor the police, he should first consider which way the camera is pointed. Otherwise, given the Graham standard, agencies wouldn’t be opting for models with enhanced capabilities (infrared, image stabilization, etc.).
*Namely, the consequences of cultural cognition and motivated reasoning is that our biases shape how we see ambiguous video (see for yourself by mentioning the “Tuck Rule” to NFL enthusiasts). See They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction, 64 STAN. L. REV. 851 (2012) (Viewer’s opinions on whether protesters had unlawfully prohibited or interfered with people entering a building depended in part on whether the video depicted (a) an abortion clinic’, or instead (b) a military recruiter, and their own views on those issue); Justice Is Not Blind: Visual Attention Exaggerates Effects of Group Identification on Legal Punishment,143 J EXP. PSYCHOL. GEN. 2196 (2014) (Eye-tracking data showed that subjects fixed their attention disproportionately on the person (cop or civilian) they were disposed to see as the wrongdoer, suggesting that video evidence isn’t evaluated objectively — in fact, it may even spur our existing biases.); Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism. 122 HARV. L. REV. 837 (2009) (which involved video shot from inside a police cruiser that deliberately rammed that of a fleeing suspect).
No clue what makes you think this is your opportunity to go off on your own unrelated tangent, or that this laundry list is appropriate, but whatever. And no, this isn’t an invitation for you to explain. No one cares.
John,
I had a little bit of involvement with the publication of Warren’s wonderful book. I “pimped” it on Amazon, on Hercules and the umpire, and in other ways.
It is hard out there for a pimp!
All the best.
RGK
Your Honor,
A relationship I wonder about was that between Judge Urbom and the marshal . Can and would you amplify how that dynamic played out?
Jim,
I believe that everything worked out fine between Judge Urbom and the Marshals. You would have to know Warren to understand why that would be so.
All the best.
RGK
SHG,
Correction: Early in the fighting an FBI agent was fatally wounded. U.S. Marshal Lloyd Grimm (from Omaha) was shot early in the conflict and suffered paralysis from the waist down.
All the best.
RGK
You are both making excellent points. The story about the Wounded Knee trials does indeed offer an excellent example of judicial leadership, wherein a Judge chooses to not assert his/her right to act higher and more powerful than others in the room. Much as we need police officials, union officials, and the cop on the street to come back to Earth and start acting as real citizens, not as a self-serving and unaccountable occupying force.
In an odd way, Lynch and the backsides of those NYPD uniforms are helping make a stronger case for massive, nationwide police reforms. They press the point that they owe no respect to anyone; we all get that point and the vast majority understand it is wrong.
One of the reasons (apparently unfathomable to many police officers judging from some of the comments around here and elsewhere) that “the vast majority understand it is wrong” is that many of us peons fully understand the at-will nature of our own employment. Humiliating the boss in front of the end customer would be unthinkable for most of us, and while it is understandable that public servants have a carve-out that allows them to engage in political activity outside work, some of the rest of us have to watch what we say even when we are off the clock.
All of us love the idea of the underpaid, dedicated public servant who stands up to and eventually prevails against the bully and lives happily ever after. Unfortunately for the police, the only actor here who stands a chance of meeting that narrative is de Blasio. Unfortunately for de Blasio, he’s going to have to grow a huge pair (or exhume Reagan and get a transplant) in order to move the needle.
“Nothing” Left to Comprise?
I am opening the window on this, this afternoon and will be paying all under bettors 3:1 that your optimistic headline for this post will have at least ten new “nothing” updates within the next month. Overs will be paid even money and ten comes in at 7:1 currently.
I tend to be aspirational on the subject of compromise.
The compromise will apparently include us, the public, doing a better job of protecting the police.
To confirm, the US military has to abide by this as well. Please keep in mind that UMCJ is a different animal, but in principle the requirement is the same. The article is almost word for word the same things that were said during military training I had some 10 years ago.
Eugene Volokh put up a post about this where he equivocated and linked to an old post of his re limitations on first amendment rights of government workers; the new post isn’t terribly useful (if nothing else, it’s but a couple sentences) but the original post from the pre-WaPo conspiracy days looks fairly in-depth and useful for dilettantes such as myself.
Personally, I wouldn’t bet on things going DeBlasio’s way in court were he to pursue some direct action, but I would bet (heavily) that if he were to do so, the NYPD would overreact in such a cartoonish fashion that the original actions discussed here would become irrelevant. Still seems like a long shot for anything to really come of this, but I feel like this is the closest we’ve been in some time towards a real opportunity for the system to be changed.
I saw Eugene’s post as well. It falls far short of his usual thoughtfulness. He fails to address the fact that cops in uniform in public aren’t the same as teachers writing letters to the editor, and by leaving this critical aspect out of his equation, misses a crucial and clear cut result. He also appears to be completely unfamiliar with Novaro, which specifically applies this to police officers.
Imagine if cops in uniform went to KKK meetings, or stood on the steps of City Hall chanting “we hate African-Americans.” It’s protected speech, after all. Is there any question that this is not in the private capacity when their doing so in uniform? Eugene’s analysis here is ignores the most salient points.
I’m sorry Judge Kopf, but you are dead wrong here. You’re comparing apples and oranges.
It’s not the Indians and their counsel who are not rising, nor even the U.S. Attorney and his or her staff.
It is your staff that is not rising. It is your clerks who are turning their backs on you and refusing to rise as you enter the court room. It is the court reporter and the other staff who work for you that are doing this. It is the chambers staff. It is the equivalent of you asking for a case file and being told to get it yourself.
Not only are they telling you that they don’t like you, they are undermining your authority in your own courtroom.
This is the equivalent of Marines turning their back on President Obama. You cannot allow it to stand.
The mayor needs to take strong, firm, immediate action; or he has lost and should resign. You cannot allow this, especially from people you entrust with the power to take away people’s liberty or to end people’s lives.
ECLS,
I agree that my apples are not your oranges. However, true respect is earned, not ordered–I think that is a universal truth.
By the way, I would personally like to see the police union kicked in the teeth ’cause public employee unions in particular always stand in the way of good governance. That is true for teachers, fire fighters, sewer workers, bus drivers and cops. But, that’s another story. (At this point, my brother who was a local union president for engineers on the railroad is puking his guts out at the thought he is related to me.)
All the best.
RGK
The same applies to the union in my past career, air traffic control. From what I saw, the controller’s union (NATCA) consistently militates to ensure there can be no cooperative and rational resolution to problems, and the problems tended to be trivial (though often palatably cloaked in ‘safety’). At FAA we had/have a badly managed organization with power-hungry and unaccountable officials facing similar type-A union officials focused primarily on annual revenues. This combination makes for a virtual guaranteed bad outcome.
Even the best jobs, when mired with politics and doubled-down pressure to not speak your piece, can become well worth leaving. It sure would be nice to re-empower some of the more rational PBA members and let them vent their true opinions. Chances are high, the majority of these members are good, decent people … but it becomes impossible to know that when their union frames the story.
While I’m in complete agreement about public sector unionism, let’s not stray from the post onto this tangent.
Sir,
We are in complete agreement that respect is earned, not ordered.
I agree with you, to a point, on police unions, but I’m biased since I was a member for over 20 years, abet in a right to work state. Hopefully your brother works for a good railroad (defined in my household as BNSF) and doesn’t get too out of joint.
Here, on this topic, the mayor has to take action or he has turned the asylum over to the inmates.
Happy New Year,
ECLS
Good thing the cops aren’t really soldiers. This a clear violation of Article 94 of the UCMJ, and if my memory of my classes in boot camp serves me correctly, the punishment is death.
I have troube being upset with the police on this one for a simple reason. De Blasio openly questioned the ability of the police as an institution to be impartial and objective. That undermines the rule of law much more than police disrespecting a politician who clearly wanted to score political points and made a bad situation worse through his actions.
You get the Billy Madison award for the day.
Flippant responses aside I am curious how you classify de Blasio’s comment about having to train his son to be cautious in how he interacts with police. If you’ve already touched on that I would appreciate a pointer in the right direction
My response wasn’t flippant in the slightest. Your comment was utterly irrational. That you think it makes sense is irrelevant by definition. Anyone can buy a keyboard; it doesn’t mean that your ability to type nonsensical thoughts compels others to treat them as if they are worthy of response.
And as for de Blasio’s comments to his son, they reflect reality, even if they hurt the feelings of unduly fragile officers. If cops don’t like the fact that a black kid is at risk on the streets of New York (note the millions of innocent black kids tossed under stop & frisk over the past decade), then the only rational solution is don’t put black kids at risk, not pretend reality doesn’t exist because it hurts your feelings.
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