Before proceeding to a detailed account of the powers of the police and the means to justify their exercise, this chapter derives key political features of the police role. Ultimately, it is to impartially produce and distribute a unique form of practical, substantive justice among citizens, one that they are owed by the state as they encounter physical hazards, interpersonal conflicts, or are subject to behaviors that the law empowers the government to regulate. The role is derived here by a form of bootstrapping, in that it takes a broad survey of what we observe the police do when aspiring to its positivist ideals, distills it into categories, and then describes the political nature of each grouping. In doing so, it concludes policing’s practical, substantive justice consists of protection and rescue from physical harm, the collection of people and evidence for presentation to a magistrate in matters of criminal law, and the brokerage and enforcement of the fair terms of social cooperation in public spaces.
The first power of the police is their ability to use force to protect and rescue third parties. This understanding departs in a critical way from the Weberian argument that the government has a monopoly on the use of force by observing the police ability to use force to protect and rescue others is available to all people. It is not only provided under laws that allow for the defense of others, but as a moral prerogative that exists prior to and outside of political arrangements, democratic or otherwise. The police are distinguished from their fellow citizens by embodying a role that discharges protection and rescue as a duty, rather than simply a prerogative. The recognition of this duty by what Nozick would call a “dominant protective association” is a necessary requirement to demarcate the state from nature, suggesting that the police role is integral to the definition of the state and a requirement of its initial formulation. From this duty follows the role responsibility to use this force as minimally and economically as possible, and as a backstop, it further sanctifies life by creating the citizen’s duty to retreat from interpersonal threats when they can safely do so.
The second power of the police is used to collect evidence and people, either summarily or by warrant, and present them to a magistrate for adjudication, principally in matters of criminal law. The traditional model assumes the purpose is to establish guilt and determine the appropriate punishment, with the result being incarceration and the harmful and disruptive consequences that often follow from it. A broader conception considers that the law is what signals the government’s legitimate interest in regulating a behavior owing to its risks and consequences, or the manner in which it violates rights, and these statutes are what empower the police to operationalize this interest on behalf of citizens. This does not mean, however, that the necessary response should always be punitive; it can instead be linkage to care, treatment, or other interventions that address behavior. The chapter closes by observing that the criminal law is nonetheless what empowers the police to act in response to behaviors regardless of the consent or intentions of others, and if the government wishes to retain this ability while shifting crisis response away from police, it will need to solve the puzzle of how actors not empowered by the criminal law can otherwise decisively represent the government’s regulatory interests regarding individual behavior.
This chapter recasts the police power to pursue order maintenance as the brokerage and enforcement of the fair terms of social cooperation in a community’s public spaces. The nature of dense, urban living, and various conceptions of the good in a pluralist state unavoidably come together to make legitimate, competing uses of public space incompatible, and in some cases facially uncooperative. The state’s duty to impartially promote fair use in ways that protect pluralist interests is inherent to the police role, and officers should privilege brokerage over enforcement whenever possible. Nongovernmental (e.g., informal) adjudication of competing uses carries the risk of illiberal outcomes driven by populism, majoritarian preference, or the occupation and use of space by force, intimidation, or other arbitrary means. That said, policing social cooperation is also subject to these risks, so while laws that are either underdetermined or inherently designed to promote cooperation through discretionary enforcement underwrite the second power of the police (e.g., disorderly conduct, or quality of life statutes), as a matter of justice they will require reasons and justifications that honor democratic pluralism. The chapter concludes by showing how even abolitionists inevitably revert to policing a community as they regulate the use of public spaces to advance their goals.
To demonstrate the principles of democratic policing in action, this chapter looks at seven cases of policing that incorporates them: 1) Not arresting Black Lives Matter protesters who block traffic during rush hour; 2) Reducing the car stops a police department makes as a way to decrease the negative consequences of this type of enforcement for a community; 3) Sanctuary city policies that explicitly limit police department cooperation with federal immigration enforcement officials; 4) A decision not to voucher condoms as evidence when making prostitution arrests; 5) Not arresting suspects for prostitution when there is cause to believe the suspects are being trafficked into doing so; 6) Not arresting individuals in possession of personal-use quantities of unprescribed addiction treatment medication; 7) Advocating for the redesign of smartphones to deter theft
This chapter explores the value of and bases for police legitimacy. In doing so, it distinguishes between descriptive (or perceived, popular) legitimacy, and normative legitimacy, ultimately arguing that the latter is the natural ground of democratic policing and the more critical of the two, given policing’s commitment to practical, substantive justice. One of the principal hazards of descriptive legitimacy is its ability to yield a popular perception of policing’s legitimate authority that can sanction populist sentiments, ones that do not necessarily protect minority rights or honor a commitment to pluralism. Legitimacy is critical in the police pursuit of cooperation, especially in times of epistemic uncertainty, and the argument here is that the careful pursuit of substantive justice that conforms to the requirements of normative legitimacy will yield descriptive legitimacy across a substantial part of the community, and especially among its more marginalized or vulnerable members.
For years, Tom Tyler’s construal of procedural justice has been offered as a cornerstone of police reform under the logic that it will breed descriptive legitimacy, and in doing so enhance voluntary compliance with police instructions and decisions. While not rejecting this logic, the argument here dismisses it as incidental to the reform project of grounding democratic policing in a normative commitment to impartially produce practical substantive justice. In this regard, Tyler’s characterization of his version of police procedural justice as being entirely psychological leaves it unable to perform this project’s crucial normative work. It also leaves its adherents open the worry that it can be used as a persuasive tool to pursue unjust ends unless one incorporates the normative commitments that Tyler explicitly eschews incorporating into his model of procedural justice. As an alternative, the argument here considers models of procedural justice taken from jurisprudence that ground the law’s normative imprimatur to impose coercive judgments. It concludes by rejecting the primacy of Tylerian procedural justice for a normative conception that tracks and closely aligns with the pursuit of substantive justice and normative legitimacy.
This chapter argues that policing can be justified at its various levels (e.g., strategic, transactional) utilizing the requirement of Rawlsian public reason, wherein the reasons supplied for coercive government decisions that take up basic matters of justice must be ones that all citizens can access and evaluate from positions of equality. It uses the highly-publicized arrest of two Black men for trespassing at a café in Philadelphia to illustrate the concern that procedural justice without public reason can yield troubling outcomes, especially when our intuitions tell us the reasons motivating the procedural transaction do not apply equally to all citizens (e.g., concerns of trespass in a café in a wealthy neighborhood would not apply equally to all citizens based on race, no matter how scrupulously the police employed Tyler’s procedural justice in response to the trespass allegations). While a public reason approach to police justification is a process that would not rule out the subjective judgments police make in complex and evolving situations, it would provide an adequate basis for evaluating overall resource allocations, and more importantly set a high expectation of reason giving grounded in equality as police make lower-level discretionary judgments.
Several concerns stand to lead policing away from its mandate to protect the full range of citizens in a pluralist democracy. Among them are special interests, coarse majoritarian rule, and populism. Given that policing involves the discretionary allocation of power and resources in a strategic sense, and that the enforcement of a wide range of laws is subject to police discretion in individual encounters, each of these concerns can turn policing toward illiberal ends when they exert undue influence. In this sense, the discretionary nature of police power is most typically turned toward injustice in the pursuit of sectarian or populist goals that may have a veneer of democratic process, but are insufficient to justify the ensuing disparities of privilege, protection, or access to public space. The duty of the police to resist this impulse and only act upon reasons that treat citizens as substantive equals (i.e., by employing Rawlsian public reason) is a critical way to mitigate this hazard. The chapter closes by recounting the failed but valiant struggle of police to prevent populist rioters from seizing the US Capitol on January 6th, 2021 as an example of the duty of the police to safeguard democracy from virulent populist interests.
This chapter argues that we can consider policing either a primary good, subject to the requirements of distributive justice, or a feature of the democracy necessary for creating and distributing primary goods secure from threats of populism, majoritarianism, and crime. It uses historical examples of failed states and states in transition to observe that a reduction in government to policing actions and the emergence of a dominant protective association demarcate transitions between states, and become the overriding priority in cases where states falter or fail, highlighting policing as necessary to the core conception of the state itself, regardless of how minimal that state may be (or how extensive it becomes). The chapter closes by considering the potential for a Rawlsian difference principle to guide the distribution of police resources to benefit the least well off. It offers the utilization of public health metrics and outcomes to ensure policing delivers practical justice by seeking equitable population-level reductions in morbidity and mortality, and increases in health and resilience, rather than relying on crime rates or police productivity as surrogate (and less reliable) indications that policing has positively impacted communities and their most vulnerable members.
Policing New York City's largest pillow fight from atop the Washington Square Park arch, spring 2013
Photo by Brandon Stanton, Humans of New York. Copyright 2012
"As we wrestle with the role and limits of policing, a political philosopher who spent over two decades as a New York City police officer and Vermont chief of police presents a normative account of what it means to police a pluralist democracy. Invoking his vast experience, Brandon del Pozo argues that we all have the prerogative to use force to protect others, but police embody the government's unique duty to do so effectively and with restraint. He recasts order maintenance as brokering and enforcing the fair terms of social cooperation in our public spaces, for the protection of minority interests, and for a society where diverse conceptions of the good can flourish. The reasons why we police, he says, must be ones that all citizens can evaluate as equals. His book explains the democratic commitments of policing, and lays the groundwork for meaningful police innovation and reform."
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