Public safety is a civil right

One time I arrested an 18-year old with an illegal gun. I discovered it was his third gun charge; the second one was still pending. We searched his car and found another gun inside—his fourth gun. The next day his older brother, a known gang member with an outstanding felony warrant, got arrested by some other cops. He also had a gun. Clearly, this guy and his brother had gang connections, easy access to illegal guns, and zero intention of going out in public unarmed.

The prosecutors in my city did not care. They cut a deal with the defense attorney and sent the guy into a “restorative justice” program, one which came with no jail time, no probation, and no supervision. The case was effectively dismissed. I didn’t like it, but I tried to be open-minded. I thought hey—he’s only 18, right? Maybe it really will work out for him. Maybe he can turn things around.

A few months later he shot a man to death.

What’s wild is that you knew how this story was going to end before you read the end of it. I knew how it going to end when it was happening. And any cop who’s worked in a city with a so-called “progressive” prosecutor (and probably even cops who worked in cities with regular normie prosecutors) can tell you a similar story. It’s obvious to everyone that prosecutors shouldn’t do stuff like this. But they do it anyway.

The worst part about the situation for me was that there was nothing I could do about it. There’s no civilian oversight board you can report prosecutors to. This isn’t a violation of bar association rules. You can’t sue a prosecutor for refusing to prosecute or appeal to a judge and have the decision reversed. If you’re living in a city with a prosecutor like this, you just have to sit there and take it until the next election.

Or do you?

Today’s post is really long, and I apologize for that. If you want to skip around, I’ve broken it out into four parts. Part I argues the social contract requires that the government protect citizens’ lives and property the same way it protects other individual rights. Parts II and III explain how the structure of local governments and existing legal rules allow localities to get away with refusing to protect citizens’ lives and property. Part IV sketches out a policy agenda designed to empower citizens to punish local governments that fail to protect them so that the individual right to public safety does not depend on the mercy of the electorate.

I. The social contract

In the 1600s, during a bloody civil war in England, Thomas Hobbes published Leviathan. Hobbes proposed that men start out being absolutely free (the “state of nature”) and that government is a sort of contract. Men don’t want to live in the state of nature because anarchy is dangerous and you have to be on guard against violent attacks or the theft of your property at all times (the “war of all against all”). Because men don’t like anarchy, most agree to give up total freedom in exchange for the protection of a sovereign. The sovereign puts an end to anarchy by protecting everyone’s life and property, and in return receives the right to rule.

Not long after Leviathan was published, John Locke published Two Treatises on Government. Locke drew upon the idea of the social contract that Hobbes proposed but wanted to add some new terms. If the point of having a government is to protect your life, liberty, and property from private violence and theft, shouldn’t you also be protected from the state lawlessly taking your life, liberty, and property? Locke concluded the answer is yes. When a sovereign acts lawlessly and violates the people’s rights, it is the sovereign that is breaking the social contract. In such cases, the people have a right to overthrow the government and form a new one.

My recounting of political philosophy here is over-simplified, Locke and Hobbes have many critics, and other writers have revisited and refined these concepts. But I think Locke’s work is important because it influenced the Founding Fathers — especially Jefferson, who drew on it in writing the Declaration of Independence. Our colonial forefathers were very concerned about tyrannical kings and parliaments, so the Constitution and Bill of Rights focused on ensuring the government could not violate individual rights the way the British had. But the Founders’ Lockean concern for individual rights still implicitly presumed that a Hobbesian sovereign would enforce the laws, resolve disputes, and provide protection from private violence.

My takeaway is that the American social contract has two basic parts:

1. The Hobbesian part: The government will provide protection for the people and their property against third-party violence and theft.
2. The Lockean part: The government will respect individual rights and act in accordance with the law rather than arbitrarily.

Obviously, the Lockean and Hobbesian parts of the social contract are in tension and will, at times, impose conflicting obligations upon the government. And when Americans think about tyranny, they usually think of a government systematically violating the Lockean part of the social contract by infringing on individual rights. But a government’s legitimacy flows from upholding both parts of the deal, not just the Lockean part. A government that violates legal rights with impunity is tyrannical, but a government that doesn’t protect citizens’ lives and property is worthless.

II. Anarcho-tyranny

In the 1990s, a paleoconservative writer named Samuel Francis coined the phrase “anarcho-tyranny.” Francis described anarcho-tyranny as:

A Hegelian synthesis of what appear to be dialectical opposites: the combination of oppressive government power against the innocent and the law-abiding and, simultaneously, a grotesque paralysis of the ability or the will to use that power to carry out basic public duties such as protection or public safety.

Francis was pretty racist and went on to become an important figure in white supremacy circles before dying in 2005. But the idea of anarcho-tyranny lives on among conservatives — Michelle Malkin recently used it to describe the 2020 riots.

Obviously, I do not endorse Francis’ views or his racism. But I do think the concept of anarcho-tyranny is useful and that the term accurately describes a certain kind of governance that is becoming increasingly common. Take San Francisco: a small business owner must wait two years and pay $200,000 before the law will allow him to open an ice cream parlor. Yet the city simultaneously refuses to incarcerate burglarsno matter how many times they re-offend. That’s anarcho-tyranny. The government isn’t violating Lockean rights, but it provides no Hobbesian protection for property.

Using cameras instead of cops to enforce traffic laws is an example of a policy that contributes to anarcho-tyranny. If a city cop sees you going 11 mph over the speed limit, he’ll likely ignore you and look for a more interesting car to stop — maybe one with fake temporary plates (stolen, unregistered, or unlicensed) or one swerving across lanes (might be drunk). The traffic camera, on the other hand, will mail you a $200 ticket while ignoring the drunk drivers and auto thieves. The felons get off scot-free (even if they receive the ticket, they’ll never pay it) but you get hammered for being a mostly law-abiding person and registering your car.

Francis’ racism aside, I think that to the extent anarcho-tyranny affects any particular racial group in America, it hurts Black Americans the most. As Jill Leovy writes in Ghettoside, Jim Crow was essentially the original anarcho-tyranny. Black Americans in the post-Reconstruction South were constantly punished for minor violations of the law, like loitering, and subject to pervasive regulation of daily life. Yet major crimes committed against blacks, like murder and rape, went more or less unpunished — regardless of who committed them. In response, communities turned to self-help.

Leovy also argues that similar conditions persist today in many major cities. Black Americans are overpoliced when it comes to minor violations, while major crimes like murders go overwhelmingly unsolved. Four out of every ten killers in America get away with it, and the rate at which homicides and shootings go unsolved is even higher when the victim is black. The absence of meaningful protection from violence robs the criminal justice system of legitimacy in black communities, leading to a never-ending cycle of retaliatory violence as families and friends seek vengeance. I have nits to pick with Leovy’s account of what constitutes over-policing, but note what she’s describing here sounds a lot like anarcho-tyranny.

Right-wing writers like Malkin often claim anarcho-tyranny arises out of liberal malice. I disagree. Unlike regular old vanilla tyranny, which requires intent, anarcho-tyranny can come about simply via neglect. All it takes is a gradual weakening of state capacity. Imagine a municipal government functional enough to mail tax bills and citations to citizens and report unpaid debts to credit agencies. Now imagine the same municipal government is simultaneously too weak to consistently stop armed criminals from robbing and killing people.

From a Hobbesian perspective, anarcho-tyranny should be impossible since any government that cannot prevent violence also cannot defend itself and will collapse. But this doesn’t happen to municipal or county governments in the United States, nor will it. Our economy is built on credit scores and electronic banking, so the threat of civil penalties is enough to control anyone not willing to completely ignore all laws. And while local governments control police departments and prosecutors’ offices, they receive financial support and military protection from the state and federal governments. So a weak local government can operate as de-facto anarcho-tyranny in perpetuity—too weak to stop rampant private violence, but strong enough to keep anyone else from stepping in.

Take Portland. Businesses got tired of calling 911 because it took hours to get a police response. So dozens of businesses hired a private security force — Echelon Protective Services — to patrol the downtown area, and now call Echelon for help instead of the police. But even if making Echelon the Hobbesian sovereign in Portland was a good idea (and it’s not!) it will never happen. Portland’s government is now focused on holding Echelon “accountable.” The District Attorney refuses to prosecute crimesreported by Echelon guards, the city is threatening civil litigation, and the state legislature is passing new regulations on private security companies. Portland’s government isn’t functional enough to stop murderers, but the threat of regulatory action is enough to keep Echelon from taking over.

III. The legal regime

Even though the government is obligated to both provide Hobbesian protection and respect Lockean rights, our existing legal system focuses almost entirely on the latter. The dominant strains of jurisprudence in the United States are liberalism and originalism. Liberalism obviously focuses on protecting individual rights; originalism is nominally more conservative but ends up doing more or less the same thing because the Founders were so heavily influenced by Lockean ideas. As a result, the American legal system allows Lockean rights to be invoked by individuals but considers the Hobbesian right to be protected from crime collective.

You can — as an individual — invoke your Lockean Fourth Amendment right to be free from unreasonable searches and seizures in court in any number of ways. You can seek to have illegally gathered evidence excluded if you are being prosecuted for a crime. You can sue the government’s agents for money damages. You could seek an injunction or ask for a statute or policy to be declared unconstitutional.

But what about the opposite situation? What if the government refuses to search or seize anyone, and breaks the Hobbesian part of the social contract by ordering all police to stay out of a six-block zone for weeks on end? What if the government flatly refuses to provide any protection against private violence?

What if, because there is no law enforcement in this zone, you get shot to death by a third party? Can your family members sue the government? Nope. The failure of the government to provide protection against private violence isn’t unconstitutional:

[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.

A similar rule, called the “public duty doctrine”, exists in tort law. You can’t sue the government for negligently failing to protect you from crime, because the government’s duty to protect citizens is owed to society at large rather than any individual person. This rule is why you sometimes hear gun nuts breathlessly declare that: “The police are not required to protect you, so buy a gun!” This is dumb because police departments usually have policies requiring officers to protect citizens and most police officers do in fact want to protect people. But it is true that there is essentially no legal remedy if they fail to do so.

Worse, prosecutors in the United States have virtually unlimited discretion, and judges and prosecutors receive absolute immunity for discretionary decisions. This is why Kim Foxx can refuse to prosecute murderers in Chicago by arguing that the shooter and victim were engaged in “mutual combat.” The victim’s family can’t sue Kim Foxx to force her to prosecute, nor can any of the suspect’s future victims sue if he kills someone after she refuses to prosecute him. Theoretically, if Foxx decided tomorrow that she wasn’t going to prosecute any murderers at all, she still probably couldn’t be sued. The only remedy is for citizens to band together and remove her from office via the political process—a remedy that is, at best, unreliable.

The last time violent crime was this bad, the concept of “victims’ rights” started getting attention. Congress and state legislatures passed “Victims’ Rights” bills, most of which are still on the books. This was a rhetorically powerful approach—if the criminals have rights, shouldn’t victims? But “victims’ rights” are mostly useless. They tend to be procedural only, consisting of things like the right to speak at an offender’s sentencing. And most of these rights don’t kick in until after a criminal has already been apprehended and charged. Jeffrey Epstein’s victims spent years suing under the federal victims’ rights statute to try and to invalidate the generous non-prosecution deal Epstein made with the DOJ back in 2007—and got exactly nowhere.

IV. A policy agenda

If you believe that 1) protection from violence is a duty the state owes to individuals rather than society at large, 2) numerous jurisdictions in the United States are failing to provide it, and 3) existing law offers no adequate remedy, then we must now turn to the question of what can be done. How can we prevent cities from permitting CHAZ zones and force prosecutors to prosecute killers? How can individuals force the state to protect them so that physical safety no longer depends upon the outcome of low turnout, off-year, closed primary elections?

A. Pass minimum police staffing laws

Some cities and states already have charter provisions or statutes requiring a minimum amount of minimum police funding or staffing. Interestingly, one of them is Minneapolis, which requires that the city “fund a police force of at least .0017 employees per resident.” Anti-police activists tried to have this provision stripped out of the Minneapolis city charter in an election last fall, but that effort was a failure.Without this charter provision, it’s safe to say the crime situation in Minneapolis would be even worse than it currently is.

This is relatively easy to do in major cities that have a ballot initiative process. It was recently tried in Austin, and while Proposition A was ultimately defeated, I hope that proponents try again and that we see similar efforts in other cities. As Minneapolis’ example shows, even very liberal cities and electorates generally oppose defunding the police—especially when violent crime is rising like it is now.

State legislatures can also intervene. The defeat of Proposition A ultimately had no impact on police staffing in Austin, because the Texas legislature had already acted to make it illegal for cities to reduce police budgets. In Missouri, state law forces cities to spend a minimum of 20% of general fund revenues on policing. When the mayor of Kansas City tried to reduce the police budget in that city by $42 million last year, a judge ordered the city to give it back.

A major problem with this approach is enforcement. In Minneapolis, a judge has ordered the city to hire more police officers—but gave the city a year to comply. In the meantime, the homicide rate has doubled. Future efforts to ban police defunding should make elected officials personally liable for violations—if police staffing falls below the minimum required number, councilmembers and the mayor should be paying daily fines until the situation is resolved, or else crime victims should have the right to sue for injuries and damage caused by crime.

B. Strip prosecutors of discretion

American prosecutors historically enjoyed unbridled discretion, but it’s time for that to go. Consider the recent Waukesha massacre, in which Darrell Brooks murdered six innocent people by mowing them down with his vehicle. Brooks, a career criminal, had two open felony cases (including one in which he fired a gun at someone) and had just been arrested prior to the killings for using a car as a weapon to assault someone. But he was released the same day after a prosecutor in Milwaukee County District Attorney John Chisholm’s office requested only that Brooks post $1,000 in bail to be released. A few days later, he was out there slaughtering people.

Chisholm more-or-less admitted that his office had been negligent, saying the bail request was “inappropriately low” and promising an “internal review” would be conducted. But while Chisholm made out Brooks’ case to be a simple error, he had previously predicted his policies would one day lead to such an outcome:

Is there going to be an individual I divert, or I put into treatment program, who’s going to go out and kill somebody? … You bet. Guaranteed. It’s guaranteed to happen. It does not invalidate the overall approach.

This attitude (“Some of you may die, but it’s a sacrifice I’m willing to make!”) is consistent with the prevailing view that public safety is a collective right. But if one believes that citizens have an individual right to be protected by the state, it’s insane. Imagine if Chisholm said something similar about criminal defendants: “When I fight crime, I guarantee that some innocent people will go to prison, but it does not invalidate the overall approach.” If public safety is a civil right, government officials cannot be allowed to let criminals kill a few people for “the greater good.”

Chisholm shouldn’t have this power— in fact, no prosecutor should. We take prosecutorial discretion for granted, but in many European nations, prosecution is a mandatory duty. If a case is declined, the prosecutor must give an adequate reason for declining it. If the prosecutor declines to file a case or dismisses it, the victim can challenge that refusal by appealing to a judge, who can overturn the prosecutor’s decision. Prosecutors cannot decline to enforce entire sections of the law just because they don’t like it. As far as I know, nothing stops state legislatures from adopting similar laws here. Prosecutors will definitely say mandatory prosecution is unworkable, but it seems to work just fine in other countries.

Another option is to make prosecutors liable for negligently failing to protect citizens by eliminating the public duty doctrine and taking away absolute immunity. There’s no reason why Chisholm’s office should not be facing lawsuits from Waukesha victims when he’s already openly admitted to being negligent. Legislatures could create tort actions against prosecutors who fail to exercise discretion reasonably. Such a statute would also have to bar absolute immunity as a defense. Of course, prosecutors shouldn’t be liable to victims for every crime that happens in their jurisdiction—just those they could have prevented by acting reasonably. I can guarantee Chisholm wouldn’t be so glib about the murder of his constituents if he had to worry about victims’ families filing multimillion-dollar lawsuits.

C. Use pattern-or-practice litigation

In Virginia, newly elected Attorney General Jason Miyares began his term by firing the office’s entire civil rights staff. I understand the impulse—most of these people are probably pro-criminal activists—but there’s a better option available. Virginia recently passed a law giving the AG authority to investigate and sue law enforcement agencies that engage in a “pattern-or-practice” of violating the constitution. This law is modeled on a federal statute giving the Department of Justice the authority to investigate localities for a pattern or practice of unconstitutional conduct. In the past, GOP politicians have declined to use this authority when they take office. Instead, they should use it against jurisdictions that fail to protect crime victims.

I’ve previously criticized pattern-or-practice litigation, especially since the DOJ’s Civil Rights Division is currently run by an advocate for defunding police. But I also see an opportunity. The next Republican President and Attorney General should order the Civil Rights Division to begin investigating progressive prosecutors who refuse to enforce the law and file lawsuits against cities with very high murder rates on the theory that these cities are violating the Fourteenth Amendment. Republican AG’s like Miyares could take similar action at the state level.

Take Philadelphia: demographically, the city is 44% black and 44% white, but 84% of shooting victims in Philadelphia are black.

This is a Fourteenth Amendment equal protection violation. In a city that is equally black and white, African Americans are being shot twelve times as often as whites. Out of the 391 fatal shootings of black Philadelphians in 2021, only 25% are associated with a court case—meaning three-fourths of people who murdered a black person in Philadelphia got away with it, either because the case is unsolved or the district attorney refused to prosecute. The next GOP-run DOJ should investigate and sue the Philadelphia Police Department and Philadelphia District Attorney’s Office for violating black Philadelphians’ right to the equal protection of the laws.

You may think this is crazy, but there is already a clear precedent. In 2012, the Obama DOJ investigated the Missoula Police Department and Missoula County Attorney’s Office for failing to protect victims of sexual assault, which the DOJ alleged was gender discrimination under the Fourteenth Amendment. Missoula PD was forced into a consent decree, and the DOJ formally accused the County Attorney’s office of gender discrimination before eventually reaching a settlement with them in 2014. If the DOJ can sue municipalities and prosecutors’ offices for gender discrimination when they fail to prevent rape, there’s no reason it cannot do the same thing to cities that are failing to protect Black Americans from lethal gun violence.

D. Make it constitutional

Liberal legal advocacy groups have long been experts at waging litigation campaigns aimed at creating new law—including new constitutional rights. It would take many years, clever lawyering, and a lot of money, but a similar strategy could be used to get the courts to recognize that a state’s failure to provide reasonable protection from private violence violates the equal protection clause of the Fourteenth Amendment. Let’s start with the text:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Debates about equal protection focus on the word “equal.” But it’s not obvious to me that “protection” doesn’t also mean something. If states just had to treat everyone equally, and equal protection could be satisfied by subjecting everyone to anarchy, then presumably the amendment would not use the word “protection.” Then there’s the part about jurisdiction. If the Fourteenth Amendment limits only state action, the phrase “within its jurisdiction” is redundant, because states never had power over people in other states or abroad. But if states have an affirmative duty to protect people, then this language serves a purpose. Without it, a person in New York could claim the government of Louisiana is responsible for protecting him.

My reading is also consistent with the problems Reconstruction Congresses were trying to solve in the 1860s. Violence against Black Americans in the South during Reconstruction, as Leovy’s work demonstrates, wasn’t simply committed by state actors—private violence was a major problem. The historical consensus seems to be that Congress passed the Fourteenth Amendment to ensure that the Civil Rights Act of 1866 was constitutional. And while the 1866 Act protected a number of rights, one of them was the right to “full and equal benefit of all laws and proceedings for the security of person and property.” It sounds like Reconstruction Congresses wanted to force states to honor the Hobbesian part of the social contract.

Under this reading of the Fourteenth Amendment, allowing a CHAZ zone to form is unconstitutional, and government officials who allow this are liable to anyone injured as a result. Obviously, the Supreme Court doesn’t agree with me on this yet, but that’s what advocacy litigation is for. Legal advocacy groups focused on public safety should begin by taking the most extreme cases—the Seattle CHAZ zone, the “no-go” zone around George Floyd Square—and start filing lawsuits on behalf of crime victims injured within them. This will take a long time, but the facts of these cases are so egregious I suspect that a court might pay attention.

Source: www.lawofficer.com