Legal Commentary

The  end of the week controversy over Professor Henry Louis Gate's arrest in Cambridge, and President Obama's own comments on that arrest, may have presented the nation with a "teaching moment" about race and policing (Gate's words quoted in the NYTimes story by Peter Baker and Helen Cooper).  It has already been one about the national importance of police power since the "war on crime."

First, the idea tha President Obama erred by making a "neighborhood story" into a "national" one is wrong historically.  Policing the neighborhood has been a national issue since the mid-1960s.  Every president since LBJ has posed as frequently as possible with large phalanxes of uniformed local police.  The politicians who have most sought public police support, including Bill Clinton, George W. Bush, and Rudolph Guliani, have all reaped national benefits.  If President Obama did something different it was varying from the tone of reverential solemnity and adoration in describing the "boys in blue".  I will leave it to our linguists to parce whether the President's use of the phrase "stupid" was a mistake that opened the door to class conflicts,  I suspect that no matter how carefully he had crafted his message, anything recognizably critical would have been met by the kind of response it has.  The first paradox than is that police operate locally but since the "war on crime" became a national crusade, police have become what the military is in foreign wars, a sacralized  metaphor for the national public itself.  Sgt. Crowley, once surrounded by the national police community and the deeply ingrained media love affair with the police (anchors are almost as eager as politicians to pose with them), is actually the equal of President Obama in stature. (more paradoxes after the fold)

It wasn't always so.  At mid-20th century the police were viewed as an emblem of the corruptness and incompetence of local government in general as any Raymond Chandler novel (or film based thereon) will attest.   Pre-"war on crime" local police were arrayed against a set of locally based "illegalities" that had more or  less support in the community.  What changed was not improvements and reform in policing (although that has happened) but a national war on crime that made them front line soldiers against the uniformly perfidious enemies of "crime," "disorder," and now "terror."  Yet even as they have become the chief public face of the war on crime and a symbol of national citizenship itself, police have found themselves on the losing end of the resource explosion in crime control.   I would suspect it is mainly a level of governmet problem.  Prisons are controlled by state governments which have many more revenue and spending options, as well as a much stronger presence before national government in Washington D.C. than cities and counties do. This is the second paradox.  While prison systems have grown 3,4, or 5 times the size they were in the 70s, most police depatments have hardly grown (my colleague Justin McCrary is now exploring the extent and determinants of this disparity) and they therefore lack the resources to do the job they are constantly touted for dying bravely in the name of. 

That police became a national symbol of citizenship in the 1960s has only deepened the injury created by the undeniable gulf in the way black (and largely latino) communities experience policing (Charles Blow summarizes some of the elements in his NYT column today) .  The antagonism between police and minority communities (especially black communities) is as old as European settlement and slavery in the Americas.  As Berkeley English Professor Bryan Wagner shows in a fascinating article  about police politics in antebellum New Orleans [Disarmed and Dangerous: The Strange Career of Bras-Coupé, Representations No. 92, Fall 2005, the article may require access codes or fees to view], the black man outside the control of slavery is the constitutive image of the threat against which police power was defined and justified.  Black men (and to some degree women and other men of color) find themselves presumptively viewed  as disorderly and must perform docility in order to reassure police [Juan Williams gave a stunningly unself-conscious description of how he personally gives this kind of performance as he criticized President Obama for failing to perform it, in a discussion on Weekend Edition Saturday, this morning).  While police departments have gone a long way toward institutionalizing racial sensitivity, including Cambridge where Sgt. Crowley was a trainer on race issues, they cannot erase this ontological link, a problem that has only been exaccerbated by their ascendance to a national symbol of consensus. This is the third paradox. Just as black and latino citizens were getting their citizenship recognized in law in the 1960s, their most historically problematic adversary, the police, were becoming the standard bearer for that national citizenship.

But while the police officer symbolically represents the  nation, the police view themselves as a "band of brothers" (quoted in Michael Wilson and Solomon Moore's story on police citizen encounters in today's NYTimes) sworn to protect each other over any other citizen or the public in general when that comes into conflict.  Moreover, most citizens of any color who deal with the business end of policing in the streets comes to understand this perfectly well.  This is my final paradox.  The public and political adoration of the police coexists uneasily with the fact that this powerful armed society within a society exercises huge and mostly unreviewable power over all Americans as individuals.

For all these reasons it would take an Obama to make this a truly teachable moment for America.  But it would have to be a 45 minute "moment" and not a quip at the end of a press conference.  Is this the right time for that moment nationally?  Probably not.