Issues Final
- 1. Running Head: Issues Final 1 Issues Final Marcos Corley University of Texas at Arlington
- 2. Issues Final 2 Abstract This essay is an examination of the legal justification for police authority. In order to gain a clear understanding the concept of legal authority there are two essential points of analysis that are necessary. First is the point of clarity, which outlines and determines what the principles of a free society are, and how those principles were set in place. The second point of analysis addresses the advancement in police militarization and reconciles the legal authority of police officers as a justifiable aspect of the American criminal justice system.
- 3. Issues Final 3 For as long as mankind has been recoding its own history, there has always been some form of government in control of every society. The concept of natural law is derived in this preset ideal, which has forged every form of government that people have existed under. One common factor of every system of government is the establishment of laws and policies that are expectations for people to abide by in order to preserve the society as a whole. The only way for these laws to have any footing in society is through an established punishment for breaking the rules. Because a government is always smaller than the number of people that they rule over, the only way for people to be brought to justice for breaking the law, is for there to be law enforcement. While the concept of law enforcement is old, an interesting collision occurs when law enforcement is acting under the principles of a free society, which in turn questions whether or not legal authority can be reconciled. In order to fully grasp the relationship between law enforcement and the principles of a free society, there are two main points of interest that should be discussed. First, it is necessary to outline and define the principles and of a free society are and how they came to be. Once that base line is set, there can be analysis as to whether or not lawful authority is reconciled under the previously discussed principles. The simplest criterion for both topics of discussion is through the scope of American civilization and their law enforcement policies, due to their global significance. In order to discuss the legal justification for law enforcement under the principles of a free society, defining what those principles are is a critical start. In the book “Principles of a Free Society: Reconciling Individual Liberty with the Common Good” by Richard Epstein, there is an entire chapter on the fundamental basis for which a free society is based on. At its core a free society, like any other society has a base line of
- 4. Issues Final 4 natural law. In fact, the reason that societies exist is for the protection of natural law. Many ancient philosophers have discussed the concept of natural law and why it exists. In essence, there are a few things that people universally believe they are entitled to simply because they are human. To reduce it even further, the concept of ownership is the single most important right that any person has, regardless of who they are. Whether it is keeping one’s own life or property is irrelevant, the confiscation of either without just cause is what people find to be the most egregious of sins one can commit against another. Due to the desire to prevent those who wish to take these natural rights from other people, society is structured and governments created so that in some way or another, those innate freedoms can be preserved (Epstein, 1998). The problem with the simplistic nature of natural law is that actual concepts must be applied to it and tangible yet fair punishment must be issued to those who break it. Branching from natural law to a free society makes things complicated in so far as the overt need to balance people’s liberties with the protection and advancement of society. For full analysis on the development of how a free society begins to make that balance, the book “Concepts of Justice” by D. D. Raphael explains where the actual principles of a free society start taking form. The cornerstone principle is the social contract, which was the most applicable concept that John Locke explores in his writings. According to Locke, some freedoms must be given up in order for there to be a protection of the basic rights outlined by natural law. The more clearly defined version of natural law that Locke is speaking about is the right to life, liberty, and property (Raphael, 2001). To quote Locke directly, “My right to swing my fist ends where your face begins” which directly implies that a person is free to do as they please so long as it does not interfere with the
- 5. Issues Final 5 rights of another. An example of social contract in action is when the rights of a person to walk about freely are taken from him upon his violation of societies rules. This means that if someone were to kill another person, he or she in turn would be giving up his or her rights to liberty, if not life for that breach in social contract. Due to the fact that the specifics of the social contract are overseen and monitored by the government, there is a new level of problematic issues as to how the handling of a broken contract should take place. That is where law enforcement comes into play, because someone has to be given the authority to enforce the removal of rights provided by the social contract, but still ensure that it is being done fairly. The explicit ideals of both natural law and the social contract imply that these inherent rights are to be upheld for everyone, regardless of race, creed, gender, or any other factor. Recent evolution in American criminal justice policies has proven that on principle, a free society upholds justice for everyone. One of the most famous instances of this concept in action is the Supreme Court case “Tennessee v Garner” which changed the nature of how law enforcement handles their use of force policies. In the hearing for Tennessee v Garner, it was stated that there was an incident where the Memphis police were called and dispatched to a burglary in progress at a home. Upon arrival, police officers saw a suspect fleeing the house on foot, to which the officers commanded the suspect to stop. When the suspect continued and tried to climb a fence, an officer drew his weapon and ended the life of an unarmed 15-year-old black child. This was significant because of the fact that the child had in fact broken into the home, which was a breach in social contract, and did not comply, with the officer’s commands which was a furthered the violation. However, because of the innate principles of American society for
- 6. Issues Final 6 justice to be served fairly to everyone, it was deemed that this response by law enforcement was an unreasonable action based on what had occurred (SCOTUS, 1985). This decision proved that the point of a free society is to have justice and equity for everyone. This case was extremely critical because of the fact that police officers are the guardians of the social contract who are supposed to mend it when it is broken, rather than destroy it further. The citizens grant authority that is vested in American law enforcement to them. That fact alone makes an officer’s breach of social contract more detrimental to the functionality of a society than any other legal violation. The problem with abuse of power by legal authority, which is not an uncommon issue in the history of America, begs the question of whether or not American police officers are legally justified as an entity, based on the aforementioned principles. Starting with the concept of everyone in society having to act within the established rules, there is an immediate dilemma with law enforcement being given the right to act outside of standard protocol. Officers are just as human as anyone else, meaning that on the surface, there is no just cause for granting legal authority. In Radley Balko’s book “Rise of the Warrior Cop” there is time line for how policing started in the United States and how it later became “militarized”. The militarization of American police departments started in the 1960’s and accelerated in the 1980’s through weapons, gear, and finally tactics that traditionally all belonged to the military. The specific aspect of police departments that resembles the military the most is the addition of SWAT teams, which function more like a paramilitary militia than a police force (Balko, 2014). The reason for many of these developments in military style policing is the war on drugs that Nixon waged in the 60’s. The equipment and weapons
- 7. Issues Final 7 were not a matter of necessity, but were used to make a drug bust a showier affair when depicted in the media. These depictions give the impression that every bust that occurred was a huge ordeal and posed a grave threat to the officers, leading one to believe that the users of these drugs are even more dangerous to the public (Balko, 2014). The war on drugs stance that America then shifted to, led to a vast number of fourth amendment issues, in which the demonization of drugs and drug offenders was so great that these tactical teams deemed it necessary to infiltrate without warrant and use lethal force against any type of force they encountered. Because of this, there is a significant number of cases where the offenders were very clearly involved in illegal behavior, but were later acquitted in court because of the rights violations that occurred during the arrest (Balko, 2014). The fact that police officers were now violating people’s rights with tactics that had never really been seen before, and these offenders who were painted as the greatest threat to America’s safety were now free, the public perception of these police tactics started to drop. In order for the justice system in America to function properly, the public has to have respect for the authority of police officers and courts. This idea is addressed in Tom Tyler’s book “Trust in the Law: Encouraging Public Cooperation with the Police and Courts”. Public perception is the key aspect of police legitimacy, meaning that the public must be comfortable with all of the policies and character traits of law enforcement in order for it to be an effective facet of the legal system (Tyler, 2002). However, it has been proven through recent political debate about gun control that a significant portion of the American public is made uneasy by the sight of large firearms. There is also the factor mentioned in Balko’s book that the militarization of police departments has caused a
- 8. Issues Final 8 decline in the publics respect for them. With that in mind, the recent militarization of the police departments in the United States could be viewed as a step towards an illegitimate position for law enforcement. The equipment itself is not the only problem; in fact it is arguably not even the biggest problem. Steve Dye, the Chief of Police for the Grand Prairie police department recently spoke to the class on the various issues in policing. Upon arrival at the topic of police militarization, he had several interesting opinions on the subject. Essentially the issue with police militarization according to Chief Dye is not with the equipment but with the tactics that are used when applying that equipment. The incorrigible use of discretion on the part of the officers holds the greatest negative impact on police legitimacy. Examples of this lack of discretion can be seen at any famous riot from the Rodney King riots in California to the recent situation in Ferguson, Missouri. The greatest common factor for all of the riots is the enflamed hatred for law enforcement when they arrive in full tactical equipment and begin indiscriminately pepper spraying everyone there or firing nonlethal rounds into a crowd with a sniper over watch on their armored-plated vehicles. The violations of fourth amendment rights coupled with the aggressive and often unnecessary nature of what equipment is used to defuse a situation, has led to a call for demilitarization of the police. However, Chief Dye pointed out that with the developments in weapons and what the public is capable of getting access to, it is important to have a prepared police department that exercises better use of force policies. In a “better to have it and not need it, than need it and not have it” concept, Chief Dye expressed a significant favor for police departments to have SWAT teams and military
- 9. Issues Final 9 grade equipment for situations where an offender is equipped with military grade weaponry himself and has created a hazard to the public. In summary, through the analysis provided there has been an analysis provided to answer the two concepts about legal authority and its relationship to the principles of a free society. First, definitions were provided for the principles of a free society, which were then examined through the scope of social contract. Following that analysis there was a determination of the justification for legal authority, specifically under its recent developments of paramilitary equipment and tactics. It could be argued that in the confines of a free society, lawful authority is not only reconciled but also necessary. Due to the fact that America is hinged on the ideal of the social contract, someone has to take action when the social contract is broken. The responsibility of restoring order when the social contract is broken falls on the shoulders of police officers. In the interest of protecting the police who in turn protect the public, the discretion for use of force is necessary. Because of the fact that the given discretion allows for use of force at one level above the continuum than that which is being used against them, the fact that the public is gaining access to more serious combative equipment, it makes sense that the police should have access to the same, if not better equipment themselves. There should however be reform on tactics, training, and policy procedure for the use of military grade equipment because of the fact that recent incidents have caused a steep decline in the publics respect for police authority.
- 10. Issues Final 10 References Balko, R. (2014). Rise of the Warrior Cop: The Militarization of America’s Police Forces. Philadelphia, PA: PublicAffairs. Epstein, R. A. (1998). Principles of a Free Society: Reconciling Individual Liberty with the Common Good. Cambridge, MA: Basic Books Raphael, D. D. (2001). Concepts of Justice. New York: Oxford University Press. Tyler, T. R., & Huo, Y. J. (2002). Trust in the Law: Encouraging Public Cooperation with the Police and Courts. New York: Russell Sage Foundation. United States Supreme Court (1985). Tennessee v Garner. No 83-1035.