New Rules Of Engagement For The Police

In response to the deaths in Ferguson, Mo., and Staten Island, N.Y., liberals are calling for new rules of engagement for the police in the United States. Writing in the Washington Post, Ian Ayres and Daniel Markovits, two law professors at Yale, argue that police should not be permitted to initiate force when “confronting misdemeanors and other less serious crimes” (see here). The authors believe that a forcible arrest for a misdemeanor is not proportional to the crime and can lead to bad outcomes.

Before considering the law professors’ proposal, however, we should note how Ayres and Markovits characterize the incident in Ferguson. Michael Brown committed a strong-arm robbery, assaulted a police officer, and resisted arrest, and yet Ayres and Markovits can see nothing more than “jaywalking” in all of this. Not only do they misunderstand what jaywalking is (walking in the middle of the street so that cars are forced to drive around goes beyond jaywalking), but they are clearly prejudiced and maybe even delusional.

In any event, rather than using force to make an arrest, Ayres and Markovits suggest that police officers who wish to take someone into custody issue a warning “like the Miranda warning.” Police would inform a suspect that if he does not voluntarily come to the station with the officer, the suspect will have committed yet a second crime for which he may be punished. If the suspect still refuses to consent to the arrest, then the officer must obtain a warrant from a judge before a forcible arrest would be permitted for both of the crimes.

Okay, but there appears to be a wee flaw in the authors’ suggestion:  what if the suspect refuses to identify himself to the police? Failure to identify oneself may or may not be a crime, depending on the state, but even if it were a crime, it would surely rank as only a misdemeanor, given that the original crime would be a misdemeanor. So we seem to be up to three crimes for which forcible arrest would not be permitted because they are all misdemeanors. And a suspect who refuses to identify himself would prevent the police from obtaining an arrest warrant or even writing a ticket for the infraction.

Ayres and Markovits cannot possibly believe that any suspects would disclose their names and addresses when a refusal would allow them to walk away free and clear. So Ayres and Markovits are simply calling for repeal of misdemeanors and other minor crimes, at least when committed in urban minority areas, and are only pretending to call for modification of policing procedure.

Many of the protesters in Ferguson and New York have carried signs demanding the end to “broken windows” policing. Under broken windows theory, a community refuses to tolerate small crimes and works to prevent deterioration of physical conditions in the neighborhood, an effort which is thought to reduce more serious crime. The protesters claim that such policing doesn’t work, and when Ayres and Markovits suggest reform, they agree with the broken windows claim, but in a way that avoids addressing the substance of the issue.

Ayres and Markovits claim that their new rules of engagement would promote “law and order.” We will learn whether or not this is true soon enough, after liberals put an end to broken windows policing, which is already happening to some extent in New York City and across the country. This means that liberals will use minority neighborhoods as laboratories for their experiment and African-Americans will serve as guinea pigs (shades of the Tuskegee syphilis experiment).

So the question really is:  have the African-Americans who will be the future victims of the new policing experiments in their neighborhoods given their consent?

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