The spirited discussion from my last post, as well as Wolfrum's takedown of thoughtless libertarianism and Another Trope's well thought out response to his critics, got me thinking about the use of force and police power in general.  I'm unlikely to break any new ground here, but if you'll all indulge me thinking out loud...

I take this issue very seriously, from both sides.  My grandfather was a detective with the Albuquerque Police Department and my brother in law is a former EMT and now a firefighter, so I'm pretty aware of what the "serve and protect" set has to go through on a daily basis.  The police serve a complex function as they are both civil servants and civil authorities.  I think it was Another Trope who reminded my during our previous discussion that my insistence that the police be treated like any other citizen is a little flawed as the police are decidedly not like any other citizen in our system.  While they are not above the law, they do have prerogatives that the rest of us do not.

The state has the monopoly on the use of force because, if it didn't, the rich would have that monopoly.  We know this from our own history.  During the western expansion, frontier justice wasn't so much mob justice as it was justice orchestrated by the wealthier land and ranch owners.  Billy the Kid and his gang were in the employ of a wealthy rancher involved in a land and cattle war.  In the absence of accountable civil authorities, we would all be vulnerable to Warren Buffett hiring an army of toughs to come kick our asses.  Having civil authorities who will cuff and treat you and me and Buffett the same way is mean to prevent that.  Don't worry, we'll get into whether or not the authorities treat everyone equally in a bit.

So far as the use of force goes, we give the police tremendous leeway.  I'm sure some police officers will disagree with me on that and could cite copious rules and regulations in support of their argument, but in practice, when the police encounter a civilian, what the officer says goes.  Say, for example, that you are subject to an illegal search.  It may well be that a court will find the results of this search can be presented as part of a prosecution.  It may well even be that the officer is disciplined.  In an extreme case, you mighty even be able to file a civil lawsuit against the officer, the police department and the city.  Some one might settle or you might even win.  But here's what you can't do... you can't physically stop the illegal search from happening in the first place.  You can't throw a punch in defense of your rights.  You can't effectively resist at all.  If you do, you could be subject to prosecution for all sorts of infractions.  If a police officer does you wrong, your only recourse is to convince a higher authority, after the fact and often at your own (considerable) expense.  If I tried to shoot pepper spray in your face and you responded by knocking the cannister from my hand and then knocking me out, there'd be no problem.  Unless I was a police officer.  You have no right to self defense against the police.

The problem is that as America has grown larger, we have tended to cede more and more power to the police.  These decisions weren't made irrationally.  The world is dangerous.  In New York, you can be stopped and frisked for just about any reason.  Sure, there are rules but good luck if you feel unfairly singled out.  As was also pointed out in the previous discussion, politically important groups of people don't tend to get stopped and frisked.  A white dude in a business suit might have a packet of blow in his wallet, but he really doesn't have to worry about some beat cop in Battery Park City going to look for it.  No  blonde socialite shopping on Fifth Avenue is going to have her purse searched for illegal prescription pills.  We all know who gets stopped and frisked.  Every year in New York some news purveyor tells us that it's young black and Hispanic kids who get stopped way up town, in some rougher parts of Brooklyn, or for visiting the wrong (rich) neighborhoods.

Which brings us back to the point of giving the state the monopoly on violence in the first place.  Remember, it's to protect us from a physically enforced plutocracy.  We give the state this authority because it doesn't matter who the president is if billionaire Larry Ellison decides to occupy northern California with his own private army.

I'm not going to stray so far as to say that the police are serving the wealthy and well connected in such a fashion.  Except here in New York, where the mayor happens to be a billionaire, the police aren't getting their marching orders directly from some wealthy elite.  However,  the police (and our entire justice system) are an arm of our politics and our politics has been demonstrably corrupted by money.

When it comes to Occupy Wall Street, police officers have far more in common with the protesters than with the political leadership.  One thing the Occupiers should articulate loudly is support for good pensions, benefits and salaries for all public workers, including the police.  Heck, you want to see effective organization of an advocacy group?  Look no further than a police and firefighters union.

But, here's the thing... the police are part of our politics and our politics has been corrupted.  I think the only answer is to take action within the system to reduce and limit police power.  It's going to be tough.  No politician ever won office for being weak on crime.  I think we should accept more danger in exchange for limited police power.  No warrantless searches. Harsher civil and criminal penalties for brutality and excessive use of force.  I'm an extremist on this.  I don't think a police officer should be allowed to search you just because  German Shepherd smells pot brownies.  It's a freaking dog.  I don't think the police should be allowed to place a GPS tracker on your car without a judge's approval.  I don't think the police should be able to "stop and frisk" just anyone at any time.  I even think that if you physically resist the police and can then prove that they police shouldn't have been hassling you in the first place, that the state should not be allowed to bring resistance-type charges against you.

But, let's face it.  The country disagrees with me strongly on all of this.  What the country has chosen is to err on the side of law enforcement in almost all cases.  The country has chosen to give broad authority to law enforcement.  When I hear about a wrongful search or wrongful arrest (or worse, a wrongful conviction and even a death sentence) I think that a great tragedy has occurred that the state should stop at nothing to make amends for.  But I am not most people.  Most people see these events as the unfortunate consequences of a necessary system.    That those afflicted tend to be either poor, minorities or both gives the great white middle some faith that these travails will never fall on them anyway.

I'll tell you one thing for sure -- if the New York City Police Department wanted to crack down on recreational drug use, it could send its officers downtown every night in December and wait for the investment bank and financial industry holiday parties to let out and then stop and frisk every person stumbling onto the streets.  Under current law, they would have every right to do so and every joint, pill or powder they find could be cause for arrest and, depending on the amounts, misdemeanor or felony prosecution.  I'm also willing to bet that if the police actually did that, New York's "stop and frisk" laws would be taken off of the books by the end of January 2012.

We can't take the politics out of policing.  But we either need to get control of our politics (and severely edit, curtail and shorten the criminal code so that there aren't so many damned offenses to commit in the first place) or we need to depower the police.  The current system can last, but it shouldn't.