STARTING with the cop on the beat, the entire law enforcement apparatus of the United States is based on a simple but important premise: To enforce the law and maintain order, federal, state and municipal governments have a monopoly on the legitimate use of force. As German sociologist Max Weber argued a century ago, this monopoly is “the core of the modern state.”
But all monopolies, whether they are economic entities protected from competition or agencies of the state, have an unfortunate tendency to abuse their exclusive power over time. However, in the case of the latter, state and municipal employees—including police officers—are generally protected from the consequences of their actions under the doctrine of “qualified sovereign immunity”—even if they cause injury or death while performing their duties.
An officer’s actions must be considered reasonable and within the scope of his/her legal authority. In theory, gross negligence or a clear violation of a suspect’s constitutional rights does not protect the officer from personal liability. But the truth is that few perpetrators of police misconduct and police brutality are ever prosecuted for even blatant abuses of their power.
Last year, the 9th Circuit Court of Appeals ruled that police officers in Fresno, Calif., were immune from liability after they stole $225,000 in cash and rare coins from a citizen while executing a search warrant because, the court claimed, there was no “clearly established” case law matching the details of the case. So the same officers who can arrest and jail individuals for theft are immune from the very laws they are empowered to enforce!
Of course, the stakes are much higher when police officers injure or kill individuals. In many cases, the use of even lethal force is justified, such as when an officer trying to arrest a crime suspect is threatened with imminent bodily harm. Police officers have the same right to self-defense as every other American and the duty to protect the public, as the U.S. Supreme Court noted in Tennessee v. Garner: “Deadly force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the subject poses a significant threat of death or serious injury to the officer or others.”
However, there are other troubling instances in which the use of deadly force is clearly excessive. The horrific videotaped death of a handcuffed George Floyd being slowly strangled to death under Minneapolis Police Office Derek Chauvin’s knee appears to be such a case. Chauvin has been fired from the force and charged with third-degree homicide. But there are many other similar cases in which no one is held to account.
The Minneapolis-based Communities United Against Police Brutality maintains a list of individuals who died in police custody, many of them African Americans. The list includes 32-year-old Philando Castile, a public school employee who was stopped for a broken tail light, and then shot by police as he reached for his wallet while his girlfriend and her 4-year-old daughter looked on in horror. The Minnesota police officer who shot him seven times at close range was acquitted.
Closer to home, in 2017 the City of Fredericksburg invoked sovereign immunity before settling a police brutality lawsuit alleging excessive use of force against David Washington, who was tasered and shot with pepper spray by Officer Shaun Jurgens when his car struck another vehicle and knocked down a road sign after he suffered a stroke while driving. City taxpayers paid the settlement, not the officer involved.
Although the state’s monopoly on the use of force is deemed necessary to maintain civil order and enforce the law, sovereign immunity winds up protecting the few bad apples in law enforcement along with the good. But it is precisely because of that monopoly that all law enforcement officers without exception must be held to the highest standard of behavior—and not be able to hide behind sovereign immunity.
The public’s respect—and more importantly, its consent—to the state’s exclusive claim of legitimate force is jeopardized when crimes against citizens go unpunished. Which is why police brutality of any kind must always be exposed, condemned, and prosecuted to the full extent of the law.