Don’t support laws you are not willing to kill to enforce

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State

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Mar 15, 2007
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#1
Yale Law School Professor Stephen Carter – a prominent left of center legal scholar – has an excellent column highlighting an important lesson of the recent tragic death of Eric Garner at the hands of a New York City police officer. Unlike the Michael Brown case in Ferguson, Missouri, where there was conflicting witness testimony, this killing was pretty obviously indefensible, and has been condemned by observers across the political spectrum. But, as Carter emphasizes, incidents like this are also a predictable consequence of the overextension of the regulatory state:

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

I wish this caution were only theoretical. It isn’t. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it’s useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law…..

The problem is actually broader. It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.

As Carter points out later in his article, the scope of government regulation has grown so great that the vast majority of Americans have violated criminal law at one time or another. This sad state of affairs multiplies the opportunities for dangerous interactions between police and civilians, and virtually guarantees that abuses like this will recur.

Some critics of police misconduct implicitly assume that we can have our law and enforcement cake and eat it too. They believe that we can simultaneously have police enforce thousands of petty laws and regulations, yet also extirpate racial profiling and excessive use of force to such an extent that police abuse of civilians will no longer be a serious problem. We can indeed take steps such as curbing the militarization of police, and eliminating double standards under which the criminal justice system treats wrongdoing by police far more leniently than similar violence by civilians.

But even if we make substantial progress on these fronts, a society where almost everyone is a criminal will still be a society where the sheer number of hostile interactions between police and civilians will be very large, which in turn ensures that there will be considerable room for abuse. Moreover, curbing police abuse through training, supervision, and after-the-fact accountability is far from an easy task. Among other things, prosecutors are understandably reluctant to go after the very same police departments whose cooperation they need to gather evidence and apprehend suspects. In addition, police are a well-organized interest group with considerable lobbying power and influence over both major political parties.

Carter correctly points out that the massive growth of criminal and regulatory law means that almost anyone can potentially end up in the same situation as Eric Garner. But it is also true that police abuses are far more likely to victimize poor African-Americans and other politically weak groups. That further complicates the task of trying to address the problem by reforming police procedure without also taking a hard look at the scope of the underlying laws that the police are tasked with enforcing. Even with people with considerable political clout find it difficult to impose accountability on police who engage in abusive violence against them.

As Carter notes, “activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.” But we should always remember that “[e]very new law requires enforcement; every act of enforcement includes the possibility of violence.” If we really want to curb police abuses, we should think carefully about whether all the laws we have on the books are really worth killing for.

UPDATE: I should perhaps note that the point made by Carter does not apply to purely symbolic laws that do not include any attached penalties, such as fines or prison time, such as the many congressional resolutions declaring that a particular date is National Warthog Day or the like. However, it does apply to the many thousands of state and federal laws that do include penalties for violation.

http://www.washingtonpost.com/news/...o-kill-to-enforce/?postshare=9431417815900846
 
Oct 15, 2003
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#4
the biggest problem is that the laws are "passed" by congress or are enacted by fiat by faceless unelected agencies, that make us "enemies of the state" - and we the people never get a chance to "support" them or not.
 

RxCowboy

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#5
the biggest problem is that the laws are "passed" by congress or are enacted by fiat by faceless unelected agencies, that make us "enemies of the state" - and we the people never get a chance to "support" them or not.
Why did you put "passed" in scare quotes?

Generally, police enforce local and state ordinances. I have no idea what this has to do with Congress or the regulatory state.
 
Feb 11, 2007
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#6
But there are lots of laws we do not kill to enforce...e.g. collection of federal income taxes. We enforce income tax law but we do not kill anyone who does not pay their taxes. We take their property and we may jail those who willing and unlawfully do not pay their tax but we do not kill.
 

State

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#7
But there are lots of laws we do not kill to enforce...e.g. collection of federal income taxes. We enforce income tax law but we do not kill anyone who does not pay their taxes. We take their property and we may jail those who willing and unlawfully do not pay their tax but we do not kill.
You miss the point. We don't kill someone for selling untaxed cigarettes either, but someone died as a result of enforcing those laws. If you don't pay your taxes, the IRS may eventually send someone to arrest you so that you may face a court and serve a jail sentence. But if you resist that arrest, or don't resist but an action during the arrest causes the arresting official to believe you're a threat then they are empowered to use deadly force against you.

Whether you're being detained for a traffic stop or sought for murder, it has the potential to escalate to a use of force by police. And I have no problem with that. I generally side with the police on all of those cases. And I support the use of police to enforce the law. But I think we have too many laws that we're asking the police to enforce and that leads to too many instances where we're confronted by police and risk a situation that can become deadly.


The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.- Ayn Rand
 
Jul 7, 2004
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#9
You miss the point. We don't kill someone for selling untaxed cigarettes either, but someone died as a result of enforcing those laws. If you don't pay your taxes, the IRS may eventually send someone to arrest you so that you may face a court and serve a jail sentence. But if you resist that arrest, or don't resist but an action during the arrest causes the arresting official to believe you're a threat then they are empowered to use deadly force against you.

Whether you're being detained for a traffic stop or sought for murder, it has the potential to escalate to a use of force by police. And I have no problem with that. I generally side with the police on all of those cases. And I support the use of police to enforce the law. But I think we have too many laws that we're asking the police to enforce and that leads to too many instances where we're confronted by police and risk a situation that can become deadly.


The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.- Ayn Rand
The liberal leaders of NYC passed extremely high taxes on cigarettes and the police probably have orders to go after bootleg cigarette sales because it takes income away from the city government.
 

RxCowboy

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#10
Police of some sort. They are people that have the ability to fine you or jail you. Pretty much same as police.
He needs to use a broader term. If he made it clear he was talking about local, state, federal law enforcement then what he wrote makes sense. Talking about the "militarization of police" though, he seems to be talking about local law enforcement. It makes no sense to talk about militarization of, say, the FBI.
 

llcoolw

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#11
He needs to use a broader term. If he made it clear he was talking about local, state, federal law enforcement then what he wrote makes sense. Talking about the "militarization of police" though, he seems to be talking about local law enforcement. It makes no sense to talk about militarization of, say, the FBI.
The FBI is militarized too. They were ready to kill a woman holding a child over the unwillingness of her husband to show up for court for sawing off a shotgun barrel for an ATF agent.
 

RxCowboy

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#12
The FBI is militarized too. They were ready to kill a woman holding a child over the unwillingness of her husband to show up for court for sawing off a shotgun barrel for an ATF agent.
Yes, they are. But they are also specifically tasked with anti-terrorism, so I don't think their militarization is as much of an issue.
 

llcoolw

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#13
Yes, they are. But they are also specifically tasked with anti-terrorism, so I don't think their militarization is as much of an issue.
I think the lessons of Waco and Ruby Ridge have woke them up. I too think the FBI should be militarized but was just pointing out the earlier thinking of the bureau to treat American citizens as the enemy. Maybe all this recent rage will change some of that mentality on the local level.
 
Feb 11, 2007
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#14
You miss the point. We don't kill someone for selling untaxed cigarettes either, but someone died as a result of enforcing those laws. If you don't pay your taxes, the IRS may eventually send someone to arrest you so that you may face a court and serve a jail sentence. But if you resist that arrest, or don't resist but an action during the arrest causes the arresting official to believe you're a threat then they are empowered to use deadly force against you.

Whether you're being detained for a traffic stop or sought for murder, it has the potential to escalate to a use of force by police. And I have no problem with that. I generally side with the police on all of those cases. And I support the use of police to enforce the law. But I think we have too many laws that we're asking the police to enforce and that leads to too many instances where we're confronted by police and risk a situation that can become deadly.


The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.- Ayn Rand
Unfortunately I did not miss the point. Laws even poorly thought out need to be enforced as fairly and without injury if possible. If the law is stupid its up to us to change it.
 
Jun 18, 2010
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#15
Unfortunately I did not miss the point. Laws even poorly thought out need to be enforced as fairly and without injury if possible. If the law is stupid its up to us to change it.
Then dream on to so much as getting medical marijuana legalized in Oklahoma, considering how vehemently Oklahoma conservatives are opposed to doing that. To conservatives, the only logical reason you want medical marijuana legalized is in order to get high. No doubt, Oklahoma conservatives thought during the 1950s that the only reason why to explain why anyone would want to legalize liquor was to get drunk.
 

oks10

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#16
Then dream on to so much as getting medical marijuana legalized in Oklahoma, considering how vehemently Oklahoma conservatives are opposed to doing that. To conservatives, the only logical reason you want medical marijuana legalized is in order to get high. No doubt, Oklahoma conservatives thought during the 1950s that the only reason why to explain why anyone would want to legalize liquor was to get drunk.
You know, I find it humorous that you seem to always forget that there are more registered Democrats in Oklahoma than Republicans yet it's all the conservatives fault...
 

RxCowboy

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Then dream on to so much as getting medical marijuana legalized in Oklahoma, considering how vehemently Oklahoma conservatives are opposed to doing that. To conservatives, the only logical reason you want medical marijuana legalized is in order to get high. No doubt, Oklahoma conservatives thought during the 1950s that the only reason why to explain why anyone would want to legalize liquor was to get drunk.
How do you expect to get MMJ in Oklahoma when you won't even vote for a candidate that supports it?

I'm still ignoring you, btw.
 
Feb 25, 2008
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#19
The law that was broken, that led to his death, was resisting arrest, not selling individual cigarettes. Should the police "give up" on anyone that resists arrest? Oh well, they don't want to be handcuffed, we will just let them off and arrest the next guy that goes willingly. One can question methods used to forcefully arrest someone - brute strength, tazer, pepper spray, whatever, but he was not "killed" for selling cigarettes.

When you resist arrest, bad things can happen.

Perhaps the police should be required to read: "Stop, you are under arrest. Resisting arrest can lead to injury, even death. Please go down to your knees, and we will toss you some handcuffs and you can gently place them on your wrists. Please don't squeeze them too tight or you arm might chafe a little."

Even Otis needed a little help in getting to jail occasionally.

 

ksupoke

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#20
Then dream on to so much as getting medical marijuana legalized in Oklahoma, considering how vehemently Oklahoma conservatives are opposed to doing that. To conservatives, the only logical reason you want medical marijuana legalized is in order to get high. No doubt, Oklahoma conservatives thought during the 1950s that the only reason why to explain why anyone would want to legalize liquor was to get drunk.
Exactly