Conscience and Policing

Recently we were talking about how the Supreme Court-endorsed standard for military servicemembers defying an order was that the order should be so unlawful as to 'shock the conscience.' What about the police?

We're seeing reports out of Virginia that the police didn't intervene in street combat because they had been instructed not to do so absent orders. There is a lot of speculation about the motive behind that order; I'll leave that for now. The governor says he felt the orders were justified. My question is, how can this order not shock the conscience enough to justify violating it?

The National Guard was on hand too, and also did not intervene. But the National Guard is typically not used as the first line of defense in these cases, and may well have received a 'standby' order as an indication that the police had it under control. In fact, the police apparently weren't even trying to control the situation.

Last night, in North Carolina, the Sheriff decided that the best response to protesters destroying a monument was to film it but not interfere. "Collectively, we decided that restraint and public safety would be our priority," he explained. Leaving all other issues aside, how is 'public safety' coherent with people pulling down a giant bronze statue onto their heads? Nobody had hard hats or proper equipment. Even if you feel like they were completely justified in destroying this statute without lawful authority, their manner of doing so put lots of people at risk of injury. The police chose not to stop them. This is taking the side of public safety?

It may well be that the police have chosen sides in this drama; if so, likely they aren't all on the same side. Alternatively, they may have decided to absent themselves from the drama as it is safer for them to arrest single individuals later than to try to make arrests from a mob.

Donald Trump says he's going to bring law and order to bear on all this. So far, there's little sign of it. Absent that, you can't blame people for deciding they're going to have to protect themselves and their interests independently. Is that what leaders in government think that they want? Do police?

UPDATE: In related news, the Washington Post published this article by an associate professor calling for "direct action" -- which he specifies can look liked "armed self defense" -- as the only workable response to white nationalists. Maybe the professor is right; maybe nothing but vigilante justice will suppress a group like the Klan.

But the Klan are vigilantes too. That's really their whole thing: nightriding, lynching, fiery crosses in the dark. If you endorse vigilantism here, you have to figure it's going to go both ways.

UPDATE: Three Percenters reportedly did "more to break up altercations than the police." Which, good for them: they were acting as good citizens, which is what the movement is all about.

Yingling called both sides protesting in Charlottesville “jackasses” and said his group was there only to guard the First Amendment, which protects the right to free speech. He said that the response to his call to attend the rally was small, because other members feared being associated with white supremacists.

Another militia whose members were reportedly present in Charlottesville as well, the “Three Percenters,” issued a “stand down” order in response to the protests, and denounced any members that chose to attend a neo-Nazi or white supremacy demonstrations, The Trace reported....

Local law enforcement came under fire for its lackluster response to the violence. According to reporters from ProPublica, militia members from New York state played a more active role in breaking up altercations than the police.

So it's certainly possible to do this well, and I find the conduct of the militias to be praiseworthy. Still, my guess is that not every vigilante is going to be so well behaved, or so interested in protecting civic norms. The Klan certainly won't be. But maybe the III% response is the only valid one, as the government apparently intends to play no useful role.

UPDATE: ACLU accuses VA governor of intentionally provoking violence by police stand-down so he could void the permits that a Federal court forced him to issue on 1A grounds.