Theory on framework issues

Wednesday, November 12, 2014

25.0. Authorized police prevarication as a clue to the nature of the state

One-hundred-fifty militarized riot police, bearing assault rifles and worse, faced off in Ferguson against unarmed protesters. Shallow reformers cried “police dysfunction”; many accused the police of white racism (really only a plea for a more diverse police). The police dysfunctionalists view the police as “servants of the public” gone astray—or, perhaps, run amok. But others deny that the police—who have a definite sociological character quite the opposite of being servants of the people—can be reformed. They’re indeed servants, but the public isn’t their master. Rather, the police are the tool of moneyed elites; the police serve to dominate multitudes in elitist interests, and they served their purpose by making a show of military might. The drive to ground state authority in raw power by shock and awe is accentuated in an economically polarized and culturally divided society, where the police can no longer even pretend to serve a unified public.

License to lie

My narrow focus will be on a single clue to the nature of the police: their universal enjoyment of a license to lie to the public. In no jurisdictions, of course, do police enjoy the legal right to lie to courts (although in every jurisdiction they often do), and the United States, by allowing investigators to lie during interrogation, further than some other countries, extends the license. The foregoing lies are either prohibited by law or subject to public debate, whereas  lies to arbitrary members of the public are never punished as crimes.

On what subjects do the police—not just with impunity but approbation—lie? They lie about rights of citizens: it is routine for the police to ask citizens lawfully in their own homes or perambulating the neighborhood for identification papers, even expressly claiming they have the right to see them in jurisdictions (like California) where they have no such right. Police will also tell citizens that they can’t use a given piece of angry language when on their own property. Other examples will occur to people in different walks of life. The police lie about their intent: "We just want to talk to you." Police prevarication is common knowledge, but it wasn’t always; once, law students were surprised upon being instructed regarding the police license to lie, about which, today, the police are heard to openly brag.

Servants don’t claim the right to lie to their masters. That some countries may have peculiarities isn’t to be denied; what is striking is the license’s universality. As far as I can discover, no jurisdiction criminalizes informal police prevarication. Whether it be only among the police themselves (when their license to lie is semisecret) or the broader public (when the police flaunt it), the license to lie serves to differentiate the police from the population as the sole possessors of a right to moral turpitude.

Some will contend that, to infiltrate the mob, the police must lie. The secret police are outside the scope of this essay because they raise different associated problems, not those of personnel who represent themselves to the public as state officials, yet avoid the otherwise general criminal prohibition on official misrepresentation.


A general consequence is that, morality being fundamentally habitual, the officerly habit of lying increases the incidence of police perjury. In circumstances where the public doesn’t know about the license to lie, the result is expansion of arbitrary police power. When it is known, a hazardous uncertainty is, in addition, created. Increasingly, you can’t know whether the police are telling you the truth about vital matters without placing yourself it risk.

A horrific example was the Ohio Walmart shooting of a youth holding a pellet gun that was part of the store’s merchandise. A veritable SWAT team responded to a meritless complaint, and the police demanded he drop the gun. Did the police have the legal right to make this demand? When the youth had a moment of doubt, he lost his life.

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Joshua Tree, California 92252-2141, United States
SUPPLIER OF LEGAL THEORIES. Attorneys' ghostwriter of legal briefs and motion papers, serving all U.S. jurisdictions. Former Appellate/Law & Motion Attorney at large Los Angeles law firm; J.D. (University of Denver); American Jurisprudence Award in Contract Law; Ph.D. (Psychology); B.A. (The Johns Hopkins University). E-MAIL: Phone: 760.974.9279 Some other legal-brief writers research thoroughly and analyze penetratingly, but I bring another two merits. The first is succinctness. I spurn the unreadable verbosity and stupefying impertinence of ordinary briefs to perform feats of concision and uphold strict relevance to the issues. The second is high polish, achieved by allotting more time to each project than competitors afford. Succinct style and polished language — manifested in my legal-writing blog, Disputed Issues — reverse the common limitations besetting brief writers: lack of skill for concision and lack of time for perfection.