Ian Ayres and Daniel Markovits teach at Yale Law School.
Recent deaths at the hands of police in Ferguson, Mo., and on Staten Island, N.Y., have rightly raised questions about illegal force and racial bias in law enforcement. But a more basic question also needs to be weighed: Should police be permitted to initiate force when confronting misdemeanors and other non-serious crimes? The answer should be no.
The existing rules of engagement for police in the United States invite violence, not just when officers act abusively but also when their conduct falls clearly within the limits of the law. There is no question that police in the United States can lawfully arrest anyone they see jaywalking or selling single cigarettes. And there is equally no question that any American who refuses a police order to come to the station can be forced by violence to comply.
But should police be permitted to initiate force in such cases?
Consider what arrests are for. An arrest is not punishment: After all, there has been no conviction at that point. The purpose of an arrest is to prevent crime and to aid in prosecution by establishing identity, gathering evidence and preventing flight. The steps taken to secure arrests therefore must, at every point, be proportional to the suspected crimes that underlie the arrests.
The current police rules of engagement violate these basic principles at every turn. Convictions for jaywalking and selling single cigarettes — the predicate offenses in Ferguson and Staten Island, respectively — effectively never carry jail sentences, and nobody thinks that they should. Fines are the proper punishments for these minor crimes.
But under current law, when the police arrest someone based on nothing more than probable cause of a minor crime, they can treat the wrongdoer more severely than the punishment that would ordinarily be imposed by a court of law, even after a full trial. We believe that the New York Police Department violated current law when Officer Daniel Pantaleo placed Eric Garner in a chokehold. But under current rules of engagement, Garner’s saying “Don’t touch me” unquestionably authorized the police to initiate the use of force — non-lethal force, but still force — to subdue him.
That’s wrong. An arrest should not impose a burden greater than a conviction. When it does, the arrest amounts to police oppression.
To fix the wrong, we should change the rules of engagement. A police officer confronting someone suspected of only a minor crime should not be permitted to arrest the suspect by force. In most cases, the police should simply issue a ticket. If the police wish to take someone into custody, they should not use force but instead issue a warning, like the Miranda warning, backed by a sanction. The text might say something like: “I am placing you under arrest. You must come with me to the station. If you don’t come, you’re committing a separate crime, for which you may be punished.” If the person complies upon hearing the warning, that ends the matter. If not, then the police can obtain a warrant from a judge and make a forcible arrest for both the old crime and the new. Similar rules of engagement should govern searches based on suspicion of petty crimes.
Such rules would not only protect the public’s rights but also promote law and order. Many critics rightly doubt that maximally aggressive “broken windows” public-order policing works. And other countries marry nonviolent rules of engagement with effective law enforcement; Germany, for example, imposes strict limits on the use of force to arrest petty offenders, and the entire German police, governing a population of 80 million, fired only 85 bullets in 2011. Moreover, nonviolent rules of engagement would also protect the police. Officers must of course retain the right to defend themselves when subject to attack. But by inviting police to initiate force, current practices require officers to control a naturally escalating dynamic that can quickly endanger all concerned.
Garner’s tragic death illustrates the drawbacks of policies that permit but seek to limit police use of force. In the heat of the moment, Officer Pantaleo violated the longstanding NYPD policy against chokeholds. The current rules of engagement make such excesses inevitable. Once the police initiate force, limits on escalation stand in tension with the goal of convincing the subject that resistance is futile. A policy restricting when an officer may initiate force at all draws a coherent, bright line that is much more likely to be observed.
Finally, new rules of engagement would also promote racial equality. Outraged citizens properly emphasize that police disproportionately harm and kill black men. But these racial disparities are, once again, not simply products of illegal police conduct but rather are invited by the existing rules of engagement. Police discretion is greatest for minor offenses, and racial discrepancies follow discretion. By allowing the police forcibly to arrest people for these offenses, the current rules place communities of color at disproportionate risk of police violence. Reforms that aim merely to increase police compliance with existing rules of engagement cannot undo the disproportion.
If the police in Ferguson or Staten Island had employed our rules, two men who are now dead might instead have been safely placed in voluntary custody, admitted their crimes and paid a small fine. At worst, they would now face an orderly and fair judicial process for defying the law.
In either event, rights would be respected, order maintained and justice served.