Michael C. Dorf: Civilian Control of the Police

January 14, 2015

MICHAEL C. DORF

Civilian Control of the Police 

in NYC

LINK

Roman emperors formally staked their power on Senate recognition, but in practice their authority depended on support from the legions and the Praetorian Guard. Despite its republican traditions, in its imperial phase, Rome was a dictatorship—sometimes a benevolent one, but a dictatorship nonetheless—because truly representative government demands civilian control of state force. For that reason, Article II of the U.S. Constitution makes the President, a civilian, Commander in Chief of the armed forces.

As with the nation, so with its parts. Thus, recent actions by a not inconsiderable number of New York Police Department (NYPD) officers to challenge the authority of Mayor Bill de Blasio by refusing to enforce the law should raise loud alarms. Police officers are entitled to express pointed disagreement with their civilian leaders, but when that disagreement crosses the line into defiance, democracy itself is threatened.

The Underlying Dispute

In considering where to draw the line between permissible protest and mutiny, it is important to set aside the substance of the underlying disagreement. That may be difficult to do in this instance, because the position of protesting NYPD officers is, not to put too fine a point on it, ugly.

Consider the now-infamous statement of NYC Patrolmen’s Benevolent Association President Patrick Lynch that Mayor de Blasio had “blood on his hands” for the murder of officers Rafael Ramos and Wenjian Liu by a man who may have drawn some inspiration from anti-police-brutality protesters but was clearly a dangerous and deranged criminal.

What, exactly, did de Blasio do to render himself culpable in the killing of Ramos and Liu in the eyes of Lynch and his supporters? In the wake of a Staten Island grand jury’s failure to issue an indictment for the choking death of Eric Garner, de Blasio had the temerity to speak the indisputable truth that young African American men like his own son are at elevated risk in encounters with the police. De Blasio has repeatedly acknowledged the difficult and dangerous work that police do, but that was not enough to satisfy Lynch, who sees police–civilian interactions in Manichean terms: Because de Blasio does not offer all NYPD officers 100 percent backing in everything they do, Lynch denounces him.

Legitimate Speech

Police Chief William Bratton and some supporters of Mayor de Blasio have criticized the NYPD officers who turned their backs on the mayor at the funerals for Ramos and Liu on the ground that they were exploiting a tragedy to make a political point. That is a legitimate criticism of the officers’ judgment, but the officers were within their rights to exercise bad judgment or even to give offense. Although not entirely analogous, the Supreme Court’s 2011 ruling in Snyder v. Phelps underscores the proposition that the First Amendment protects offensive speech, even offensive speech that aims to use a funeral for political purposes.

More broadly, police officers have a right to speak out on matters of public concern, even if doing so could be seen as somewhat undermining the authority of their civilian leaders.

As a Justice of the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. wrote in the 1892 case of McAuliffe v. Mayor of New Bedford that a plaintiff who had been fired from his position as a police officer “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” Yet constitutional law long ago rejected the Holmesian view that the state may, as a condition of employment, suppress otherwise protected speech.

Under the modern employee speech doctrine, public employees do not forfeit their right to speak as citizens on matters of public concern simply by virtue of accepting a government job. Government may not suppress such speech by its employees unless doing so is necessary to the effective provision of services.

The NYPD officers who turned their backs on Mayor de Blasio were expressing an odious view, but they were nonetheless “speaking” as citizens on a matter of public concern. And while the incidents caused embarrassment to the mayor, the police commissioner, and others, they did not interfere with the provision of police protection in any clear way.

To see why the First Amendment protects NYPD officers in expressing their displeasure with the mayor, imagine that they were making a different point. Suppose that in the wake of the Garner non-indictment, the mayor gave a public speech praising the NYPD for its aggressive use of force, and that some officers turned their backs at that speech. Surely many of the people who now condemn the NYPD officers for their treatment of Mayor de Blasio would praise the hypothetical officers for their courage in confronting their leaders, for speaking truth to power.

An Illegal Strike

Police officers also have a legal right to another kind of speech. They can organize to form a union that, in turn, can collectively bargain on their behalf. Some of the issues that are legitimately subject to collective bargaining are also matters of public policy. For example, whether police must be outfitted with body cameras is both a matter of working conditions for the police and civil rights of the public.

But New York law generally denies to public employees the right to strike. Whatever the merits of the general provision, the reason for the prohibition of police strikes is obvious. A strike in some other sector may cause financial losses and public inconvenience, but a strike by the police threatens the very foundation of government.

The NYPD are not formally on strike, but over the last several weeks, the number of arrests and tickets for relatively minor offenses as well as some not-so-minor offenses (such as gun possession and drunk driving) reportedly declined substantially. Although there is no clear evidence of a coordinated refusal by police to enforce the law, the same report (a New York Timesstory) indicates at least informal coordination. Call it a stealth strike.

Whether overt or covert, a police strike is dangerous and illegal. Where, as appears to be true here, the tacit strike threatens the public safety unless elected leaders give in to the strikers’ policy demands, democracy itself is under attack. There is no place in New York or America for a Praetorian Guard.

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Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.

- See more at: http://verdict.justia.com/2015/01/14/civilian-control-police-nyc#sthash.UhfuNImG.dpuf