When You Can’t Trust Your Law Enforcers

Eyal Press produced a nice little study of human behavior in his book Beautiful Souls: The Courage and Conscience of Ordinary People in Extraordinary Times.  The people he studies are ones you almost certainly never heard of, and they are in most ways not extraordinary, but chose, at great personal risk, to do “the right thing” when the opportunity presented itself.  Of interest here is one of his subjects, Avner Wishnitzer, an Israeli veteran of the Sayeret Matkal the most elite unit of the Israeli army, the Israel Defense Forces (IDF).  In telling his story, Press pointed out a rather unique feature of IDF service that was derived from Jewish experience under the Nazis.  He provides this perspective. 

“’If members of the armed forces commit violations by order of their Government, they are not war criminals and may not be punished by the enemy.’  So wrote the German jurist Lassa Openheim in one of the most influential treatises on international law published in the first half of the twentieth century…Lawful or unlawful, justified or not, combatants were expected to follow the orders they received.  There was no duty to refuse.”

“This was the prevailing view among Western legal experts—until World War II, until the prospect of Nazis invoking the Superior Orders defense at the Nuremberg Trials prompted reconsideration.  The mass murder of Jews, Communists, and intellectuals carried out by the Einsatzgruppen, the industrial-style slaughter in the camps: by the standard laid out in the British and American military codes, judges would have had little choice but to exonerate all but the highest ranking perpetrators of these crimes, perhaps everyone save Hitler himself.”

Both the British and American military codes had to be rewritten before Nuremberg to allow punishment for those who “violate the accepted laws and customs of war.”  This change of view would be of great importance to Jews as they created their state of Israel.  It would not take long, given the violence between the Israelis and the Palestinians, before an atrocity occurred which would provide the legal precedent requiring that members of the IDF must refuse to carry out an order they believe to be illegal.  In the case involved, an order was issued to impose a curfew on Palestinians at a certain time of the day.  But the order was distributed only an hour before the curfew was to go into effect.  The command stated that any Palestinian who violated the curfew should be shot.  There were several IDF commands within the region affected.  Only one commander chose to follow the letter of the order that day and executed a number of Palestinians who were unaware of what was going on.  He and his soldiers were tried and convicted.  The judge in the case issued a firm ruling.

“Orders that are ‘manifestly illegal’ not only can be disobeyed, Judge Binyamin Halevy held in his ruling; they must be disobeyed.”

This ruling established the legal precedent giving a soldier the right to decide for himself whether or not a given military activity was or was not “manifestly illegal.”  Avner Wishnitzer was one of a number of experienced soldiers who concluded that the activities of the government, as executed in the occupied territories, were illegal and they would refuse to participate in them.  In his view the occupation was clearly illegal under international law and IDF members were complicit in allowing Israeli settlers in the West Bank to stage brutal attacks, pogroms if you wish, against Palestinians who legally lived there.  This was not a very popular decision to make.  In fact, it was directly countered by a much larger group concerned that the IDF might one day be asked to force the settlers to withdraw from their illegal occupation.  The religious far-right in Israel views the West Bank as a part of Israel given to them by God and any move to remove settlers is forbidden by their beliefs.  What devout Jew would go against the will of God?

The legal underpinning of conscience-driven disobeying of orders allows the Israeli army to decide what it will or will not do.  Right now, the general belief is that if a government attempted to negotiate a peace treaty that involved clearing settlers out of the occupied territories, the settlers would refuse to leave and the IDF would refuse to force them to leave.  The IDF, by recognizing this legal hoop they can jump through, is then in a position to determine governmental policy by refusing to support activities with which the majority of the IDF disagrees.  Supporters of a particular position can merely flood the ranks of the IDF to gain political leverage.  This is probably something the legal system never intended.

Why is this of interest to us in the United States?  Should we be concerned that our policing agencies might one day refuse to follow political leadership and chart an independent path?  It is becoming clear that our own law enforcers, our police departments, often have sufficient influence that they can control policy decisions.  The actions by police forces here indicate that some police organizations believe they are more powerful than the politicians who nominally control them and dare government leaders to cross them.  The sources of their power are the police unions and the rights they have attained to essentially be the judge of their own members’ actions.  William Finnegan provides some perspective in an article for The New Yorker titled How Police Unions Fight Reform. 

“In May, just days after a Minneapolis police officer killed George Floyd, Lieutenant Bob Kroll, the bellicose leader of the city’s police union, described Floyd as a violent criminal, said that the protesters who had gathered to lament his death were terrorists, and complained that they weren’t being treated more roughly by police. Kroll, who has spoken unsentimentally about being involved in three shootings himself, said that he was fighting to get the accused officers reinstated. In the following days, the Kentucky police union rallied around officers who had fatally shot an E.M.T. worker named Breonna Taylor in her home. Atlanta police staged an organized sick-out after the officers who killed Rayshard Brooks were charged. Philadelphia police sold T-shirts celebrating a fellow-cop who was caught on video clubbing a student protester with a steel baton. The list goes on.”

“In many cities, including New York, the unions are a political force, their endorsements and campaign donations coveted by both Republicans and Democrats. The legislation they support tends to get passed, their candidates elected. They insist on public displays of respect and may humiliate mayors who displease them. They defy reformers, including police chiefs, who struggle to fire even the worst-performing officers. In an era when other labor unions are steadily declining in membership and influence, police unions have kept their numbers up, their coffers full.” 

“In their interstitial safe zone, police unions can offer their members extraordinary protections. Officers accused of misconduct may be given legal representation paid for by the city, and ample time to review evidence before speaking to investigators. In many cases, suspended officers have their pay guaranteed, and disciplinary recommendations of oversight boards are ignored. Complaints submitted too late are disqualified. Records of misconduct may be kept secret, and permanently destroyed after as little as sixty days.”

Waves of migrants passed through our big cities over the years.  In the nineteenth and early twentieth centuries these newcomers initially brought increased crime, but they also brought valuable voters for the politicians of the time.  These migrants could convert their votes into political influence and often used the politically controlled police forces as a steppingstone to economic and social acceptance.  When the waves of black immigrants came fleeing the South in the early twentieth century, the politics and opportunities had changed.  Their votes were not viewed as valuable, and their skin targeted them as undesirables who must be kept in their place, both geographically and economically.  The police forces were no longer a path to a better future, but rather an enemy designed to keep them under control.

“By the end of the sixties, a racialized law-and-order ideology had emerged as a sort of unexamined American consensus, and it has basically prevailed since then, providing the political context in which police unions thrive. In the N.Y.P.D. today, with the arc having bent toward inclusion, people of color constitute slightly more than half the uniformed force. And yet the unions—there are five, for various ranks, with the P.B.A. the largest by far—give a different impression. Their leadership, their politics, and their occasional mass protests, not to mention the N.Y.P.D.’s riot squads, still read as overwhelmingly white. White cops, Black and brown suspects: that remains the dominant paradigm.”

Police brutality has always been an issue for black citizens.  Consider the history of New York City.

“In the city’s large, and largely segregated, Black community, police brutality had been a first-order issue for decades. The 1964 riots had been sparked when an off-duty policeman killed a fifteen-year-old Black student, James Powell. Activists, led by the N.A.A.C.P. and by Black newspapers such as the Amsterdam News, had been calling for more police accountability since at least the twenties, and for civilian oversight since the forties. Another frequent demand was for the hiring of more Black officers. One of the less-remembered lines in Martin Luther King, Jr.,’s soaring speech at the March on Washington, in 1963: ‘We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality’.”

David Dinkins became the first, and only, black mayor of New York City.  He had the temerity to attempt to install a civilian review board to cover police activities.  The largest police union, the Police Benevolent Association (PBA), expressed its displeasure by rioting in the streets.

“When Mayor David Dinkins sought to install a civilian review board, in 1992, the P.B.A. staged a ferocious protest at City Hall, with ten thousand off-duty officers, virtually all white and many carrying guns and drinking alcohol. Demonstrators waved racist placards—'Dump the Washroom Attendant’—attacked reporters and bystanders, vandalized City Council members’ cars, stormed City Hall, and overflowed onto the Brooklyn Bridge, where they stopped traffic and jumped on occupied cars. It was a wild performance of police impunity, and the on-duty officers did nothing to stop the mayhem.”

“Jimmy Breslin was there, reporting for Newsday, and he described a scene of toxic racism. ‘The cops held up several of the most crude drawings of Dinkins, black, performing perverted sex acts,’ he wrote. Newsday had more. A city councilwoman, Una Clarke, who is Black, was prevented from crossing Broadway ‘by a beer-drinking, off-duty police officer who said to his sidekick, ‘This nigger says she’s a member of the City Council.’  As the rally surged, Rudolph Giuliani, a former prosecutor, stood on a car, leading obscene chants through a bullhorn. He defeated Dinkins the next year and went on to two terms as mayor.”

“Dinkins ultimately succeeded in installing a civilian complaint-review board, but its disciplinary recommendations to the department are rarely followed. In public, the union trashes its every step.” 

The NYPD is the oldest and largest police force in the United States.  With 36,000 well-armed uniformed officers it is an army; one that has demonstrated that it can be mobilized as a single unit to counter any move to which it objects.  Its tools are political leverage and the constant threat of massive civil disobedience if provoked. 

The picture of policing in New York City is certainly troubling, but its example is far from the worst in the nation. 

“The N.Y.P.D. is not the most insular, lawless police department around. It is, in fact, one of the least violent police agencies in the country’s hundred largest cities. During the past seven years, according to a database built by a group called Mapping Police Violence, the police in St. Louis have killed fourteen times more civilians, per capita, than New York police have. In New York, police kill Black civilians at 7.8 times the rate of white civilians. In Chicago, the factor is 27.4.” 

Police departments find it easy to maintain their influence because there seems to always be political prostitutes like Giuliani lusting after their support.  Consider the situation in Chicago, long assumed to have the most brutal of all the police forces.  Civil suites against the city’s police cost it over half a billion dollars over a ten-year period.  Charges include the long-time tolerance of a “torture squad” within its ranks.  Observe the behavior of Rahm Emanuel, far from a right-wing crank like Giuliani, as the recent mayor of Chicago in dealing with a blatant execution by a police officer.

“In Chicago, in 2014, an officer named Jason Van Dyke shot a teen-age boy named Laquan McDonald sixteen times. The police report said that McDonald had advanced on officers with a raised knife. More than a year later, after an activist and a freelance journalist sued under the Freedom of Information Act, the city released a dash-cam video, which showed McDonald not advancing with a knife but walking away. This coverup wasn’t perpetrated by the police alone. City leaders knew what was on that video. Mayor Rahm Emanuel, though he denied having watched it, fought for thirteen months to prevent its release. 

What can explain this behavior other than fear of retaliation by the well-provisioned police army in Chicago whose first duty seems to protect its members against all threats.

Something has gone terribly wrong in our cities.  Tweaking things around the edges of our policing will not get the job done.  A massive restructuring and reimagination of what policing entails will be required.  Calls to defund or eliminate police departments are driven by passions of the day, but that passion is not misdirected.  We need to take time and carefully produce a path forward.  Real progress will probably require national rules for use in recruiting and training a new generation of police officers.