In this blog, I synthesize multiple theories in order to produce an approach to policing sufficient to understanding police violence in contemporary US American society. While much of this approach sufficiently describes policing in neoliberal democracies generally, the unique history of the United States colors policing in specific ways.
Along the way, I will address Max Weber’s definition of the state, Mark Neocleous on the fabrication of social order, W.E.B. Dubois and Joel Olson on the color line, Martinot and Butler on sovereignty, and finally Walter Benjamin and Giorgio Agamben on states of exception.
My attempt with this blog is to communicate an approach to policing that operates in my research, but to do so for a more general audience. I understand that by appropriating the language from political theorists, sociologists and philosophers, and by attending to the origins of the ideas discussed here, the blog might be received as intimidating. I hope readers who are put off by this style of attribution will be so generous as to disregard some of the stylistic decisions I’ve made to be in both worlds, academic and public alike. These two worlds aren’t so separate. Many criticisms of the former result from a reactionary anti-intellectualism, and yet it is fair for some readers to approach citational writing as alien. Also, the suggestion that public communication not be intellectual in orientation is to presume too little of the many publics among whom this material will likely be relevant.
A Monopoly on Violence
Policing has been defined very broadly as the administration and enforcement of law with the latent authorization to use violent force in doing so.
Pardon the digression, but first a note on definitions. As with any sociological definition, this is a historical and more importantly a provisional definition, one made legitimate by reliably referencing common collective practices and meanings shared by enough of the relevant segments of the society in question as to be communicable with sufficient validity. But as with any sociological definition, it is stated with enough precision that some colloquial or academic meanings may be excluded from such a definition. It is thus more an operatonalization of a term than a universal definition or idea (as though any such thing could be expressed). It is also amenable to revision and amendment — something, in fact, that I will do below.
Since Max Weber’s incredibly influential lecture, “Politics as a Vocation,” the legitimate application of violent force is both a means on which any modern state relies, and a defining feature of the state itself. Weber argues it is not the ends of a state that defines what is common among all states and their predecessors. Rather, the common means by which states function and reproduce themselves is the legitimate use of physical force. States are founded in violent force and are perpetuated by it. The use of force is, again, not the only means used by states. Importantly, the extent to which such violence is normal, diffused or everyday is an empirical matter worth comparing across time or place; but to study such a thing with regard to the normalized and legitimate use thereof is to study states.
This is a historico-empirical rather than an ideological assertion. At the beginning of any police sciences, criminology, or similar article — especially if the topic is on use of force in policing — you’ll see this perfunctory statement: the most essential feature of the police is the legitimacy in their use of violent force. In a recent article by Prenzler, Porter and Albert including case studies reporting on reforms intended to reduce use of force incidents, they begin by stating, “Policing is widely described as involving the use of force in pursuit of goals of law enforcement, crime prevention and order maintenance” (emphasis mine). Pate and Fridell explain that the use of violent force is what distinguishes policing from all other professions. Klockars writes, “No police anywhere has ever existed, nor is it possible to conceive of a genuine police ever existing, that does not claim a right to compel other people forcibly to do something. If it did not claim such a right, it would not be a police” (both sources cited in Lersch and Mieczkowski 2005).
For Weber, what was the more important defining characteristic than the use of force and its legitimacy is that the state successfully “claims the monopoly of the legitimate use of physical force within a given territory” (emphasis mine). Stated differently civilians subject to the state’s violence cannot legitimately perform the same violent actions, whether against another civilian or against agents of the state. What is characteristic of state power is the threat or application of violence, and any violence that is not certified by the state is illegitimate.
According to Weber, “the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it.” Thus, what we might call “uniformed police” or “law enforcement officers”, as executors of the law, are granted the legitimacy in using violence to effect law. It is a core feature of the institution of policing that its agents are among a select few who are conferred the authority to use violence against civilians. In fact, most other such institutions merely rely on the police to perform those things upon which violence they rely.
As security contractors and private police departments are increasingly used in US municipalities, these private firms and their agents use violent force with the full authority and legitimacy of the law. This development represents little more than a change in institutional delegation of the state’s policing, rather than an abdication of the state’s monopoly. If the police function remains constant, there is nothing categorically different between paying private contractors and government bureaucracies to inflict violence to produce the social order.
Beyond Means: The Production of Social Order
Let’s remember, Weber was concerned with defining politics, and he did so as “striving to share power or striving to influence the distribution of power, either among states or among groups within a state.” Politics was thus defined as action relative to the state, and the state defined as discussed above. His concern was different than mine, here, which is to describe policing. Nonetheless, etymologically — and especially in the German — politics, policy, and police share origins, and policing developed historically, both linguistically and in the practices of states, very closely tied to conceptions and actualizations of policy.
However, violence is not the sole means by which the state is produced and reproduced, and policing is not the sole actualization of these means. Weber acknowledges as much. In order to reach some of the conclusions below, some attention to ends are in order. Again, Weber said quite clearly there are no common ends among states. But my object here is not to describe all states, nor even all policing, but rather it is to describe policing in the US with reference to its unique national history, and to its political context as an agency of this state.
Mark Neocleous recognizes a most expansive understanding of police, and with reference to its linguistic and legal history. So when referencing “police,” he means something well beyond “uniformed officers” and the like. Yet, nonetheless, importantly in his book, The Fabrication of the Social Order, he immediately responds to Michel Foucault and Foucauldians on the police and governmentality, noticing the dearth of reference to
“the police institution itself, to the extent that one begins to think that policing and the police have nothing connecting them at all. One searches high and low in Foucauldian texts for police officers themselves to appear and play a part in the exercise of power or the disciplinary project. For them, the police idea is emptied of the humiliations administered both on the street and in the police station, the thud of the truncheon and the gratuitous use of ‘discretionary’ force. In other words, the Foucauldian texts are stripped of any sense that police has anything to do with violence and thus state power.” (emphasis mine)
While this may seem to the more casual reader a diversion from the point — particularly a reader neither versed nor interested in contemporary developments in critical theory and poststructualism — it is absolutely essential to my motivation in addressing the larger issue. I think this omission is not one parochial to the domain of critical theory and poststructuralism, but rather is part of the contemporary imagination about police more generally. Not only has this Foucauldian omission of police saturated much thinking about the subject of the production of social control, it is my position that this reflects much more pervasive and colloquial understanding of power among publics in the West.
Why is that? Neocleous writes that “the genius of liberalism was to make the police appear as an independent, non-partisan agency simply enforcing the law and protecting all citizens equally from crime. Concomitantly, liberalism glossed over the power of property and subordination of labour to capital through which order is sustained in contemporary society.” The overwhelming success of liberal ideology has allowed the pervasive impression of the police not only as unproblematic, but as a largely unremarkable force in contemporary life.
The earliest writers on the question of the modern state (e.g. Thomas Hobbes, John Locke, Jean-Jacques Rousseau, Adam Smith) predicated the legitimacy of the state on the social pact or social contract, intrinsic to which is the Rule of Law. The Rule of Law states that all are subject to the same rules and the enforcements thereof. Advocates for the liberal-democratic state, however, are prone to an is-ought problem of sorts: the Rule of Law is presumed actualized by virtue of its normative position in the social pact. It’s a bizarre tautology — everywhere states exist, so too does the Rule of Law, even without reliable evidence for this.
A related is-ought problem infects thinking about police in liberal-democratic societies, where the value for equality of opportunity is believed to ensure a classless society. The mere existence of belief in equality of opportunity is sufficient evidence for the classlessness of such societies. Both the presumption of the Rule of Law and of classlessness work together to produce the neutral view of the police as non-partisan. As I will discuss below, this is deeply flawed.
As Neocleous claims, ‘police’, understood historically, has operated as a sign for the production of order — as he writes, “it is through policing that the state shapes and orders civil society.” For Neocleous, “the history of police is the history of state power.”
But here, unlike Weber, we are well beyond consideration of means. Policing is not merely a means of enforcing the law through violence. That is in fact a tautology in this view of police. Here, rather, violence is a means to reach an end: the production of the social order. For Neocleous, this is the maintenance of property relations and the class divide. This is correct, but not wholly so.
The Racial Order
Neocleous explains that “police as an institution has been central to the historically massive operation on the part of the state to consolidate the social power of capital and the wage form: the police mandate was to fabricate an order of wage labor and administer the class of poverty thereafter” (2004, 21). The United States has a unique history that augments these properties of police as exemplified in Europe.
Especially in the US, the social order has always been distinctly racialized due to the founding of the state through conquest and colonialism, and its intensification of the state and capital accumulation through chattel slavery. Reinforcing the color line is essential to the production of social order in the US, and in addition to administering poverty and maintaining the class divide, reproducing conditions of white democracy is at the foundation of the police institution.
Even prior to the establishment of an autonomous state, the American colonies granted to those identified as white — even the working class and poor — certain privileges and rights that were simultaneously denied to all those of African and Native American descent. These included the right to move freely without documentation, the ability to be excluded from the system of chattel slavery, the ability to acquire property and arms, the right to speech and assembly, the ability to change jobs, and to exercise ballot votes. In return for these “public wages,” poor and working class whites respected the property claims of capitalists, seized lands from Native Americans, and enforced the institution of slavery. They further operated as vigilante enforcers of the color line through lynchings and other methods of informal yet state-sanctioned policing. These vigilantes are one of two unique originary points for US police. This is, as Joel Olson explained, how whites “went against their class interests to serve their ‘racial’ ones, and thereby reinforced the power of the rich.” He further explains:
As this white alliance grew to include other ethnicities, the result was a curious form of democracy: the white democracy. In the white democracy, all whites were considered equal (even as the poor were subordinated to the rich and women were subordinated to men). At the same time, every single white person was considered superior to every single person of color. It was a system in which whites had an interest in and expectation of favored treatment, in a society that claimed to be democratic. It was democracy for white folks, but tyranny for everyone else.
This explanation of the color line is built on a concept introduced by Frederick Douglass and elaborated on by W.E.B. Dubois, and further explains the origins of the white/non-white divide in the institution of slavery, the imperial conquest of land, and the genocide of Native Americans. Policing in the United States — from its origins in the mid-1800s and through today — is about reinforcing this color line.
The first policing institutions in the US were created in response to the Fugitive Slave Act. In addition to the vigilantes mentioned above, a second point of origin for the modern police in the US were the “pattyrollers” and other slave catchers. This informal maintenance of the color line was later assembled into durable institutions that enrolled vigilante citizens to form the first police agencies. So while modern US police share some organizational and legal history with their European peers, this origin is distinct and has developed with cultural changes over time to reproduce the color line in accordance with contemporaneous shifts in political necessity.
There is no more reliable and stronger cross-class alliance than that between working class police officers and the capitalist class. In terms of the means-ends relationship, because the end of policing is the reproduction and maintenance of the racial order, the raison d’être for the institution is actualized in racial disparities in its means: stops, use of violent force, malicious prosecution, and incarceration. Nor is there a more defining feature of the racialization of police than that evidenced by statistics showing use of force incidence is highest among Black officers on Black civilians. The racialization of the institution of policing powerfully supersedes the identities of those who wear the badge. The view of the police as a neutral entity helps exempt Black officer on Black civilian violence being branded as a product of the racialization of policing, such that these incidents are less likely to draw complaints and for these complaints to be sustained. Black officers thus shield the institution from claims of racism. Calls for increasing the number and percentage of people of color on police forces thus revert back to the liberal view of the institution as neutral and corrupted by individuals with racist attitudes or lacking sufficient cultural sensitivity.
The fantasy of the post-racial society mirrors the presumption of equality of opportunity. It suffers from the same liberal is-ought problem, and can’t withstand the statistics that show dramatic disparities in stops, use of violent force, arrests, convictions, sentencing and incarceration.
Beyond Enforcement: Police as Petty Sovereigns
Recall that for Weber, the legitimacy ascribed to any institution or individual in using violence is via the permission of the state. It is important to note that for police, the authorization to use violent force is latent; each instance of its application need not be approved in advance. The police have the special authorization to determine in any moment whether to use violence. By this quality, a special kind of sovereignty has been conferred to police officers.
This sovereignty is explained thusly: police are not merely enforcers of the law; but also generate law in directives; then execute this law in the form of detention; and finally exact punitive judgement in the form of violent force, arrest and incarceration.
The juridical principles of probable cause and reasonableness constitute the blanket authorization to use violence, and the transference of the discretion in when to use it to individual police officers. As Martinot argues, the legal concept of “probable cause” signals and codifies the rationale that the full and undivided authority of the sovereign can bear upon a “suspect,” an individual targeted by the officer.
Probable cause gives officers the right to stop a civilian without first making an arrest. Because policing is tasked with the administration of the color line, simply being a young black male alone substantiates probable cause. What is called “racial profiling” is a name given to standard police practice. It is the moment at which people of color are folded into a sequence of racialized processes that systematically targets and violently punishes them. As Elizabeth Gaynes makes clear, this is the process by which “seven out of ten African American men [in the nation’s capitol, Washington DC] anticipate being arrested and jailed at least once before reaching the age of thirty-five.”
Martinot explains that once civilians are stopped, they must obey all police directives. Refusal or even hesitation to follow an order is a criminal act. Therefore, “during detention any police directive translates into law. Refusal or resistance to a directive subjects a person to possible arrest, punishment (such as beating), or both.”
Individual officers utter orders, and these can be acted upon with the discretionary authority to claim a violation thereof as a criminal act. Once criminalized, the directive attains the weight of law, and an officer can also use discretion to use violence to restrain and absorb the civilian into the judicial system. Civilians are therefore subjected to both legislated law and the arbitrary commands of police officers.
The officer has the discretion to classify anyone profiled as a criminal. What follows a stop is often a strategic method of converting a lack of sufficient deference into unlawful behavior.
The cop has but to find a directive that an individual will resist simply out of self-respect, a sense of dignity or justice, or a feeling that the directive is extreme and unwarranted. Such a stance will be construed as disobedience, and will be cause for arrest, the use of painful restraints, torture with pepper spray, and charges of resisting arrest. If the officer chooses to beat the person, the person can then be charged with assaulting the officer since the judicial presumption is that an officer will use violence to make an arrest only in self-defence. The cop’s use of violence becomes presumed evidence that the cop was threatened or assaulted.
Like above, this is an empirico-historical claim, rather than ideological in content. In Alpert and Dunham’s 2010 article on policy and training with Tasers, published in Police Quarterly, they open with such a claim: “The use of force by the police is the last resort to control a suspect’s resistance to a legal command.” Later in the article, they explain that officers function on the basis of the latent capacity to use force, since they “can invoke the powers of the government, if necessary. The level of this authority ranges from verbal direction to deadly force, with most problems solved by using strong verbal commands or physical coercion.”
The use of force by an officer is evaluated by the criteria of “objective reasonableness.” Stated simply, following the Graham v Connor ruling, use of force is justified when an objectively reasonable officer would have conducted oneself similarly were one in such a position. Further, the case law stipulates that such decisions must be made with the consideration that judgement must be rendered in “split-seconds.”
First, it is important to recognize who’s perspective is granted the privilege of being “reasonable”. Reasonableness is not considered from the perspective of a third-party observer, nor from the perspective of the person on which violent force is used. Nor is reasonableness considered from a reasonable person occupying this perspective, but someone who has had the training and enculturation of a police officer. Second, although, following Warren v District of Columbia, police officers have no obligation to render services to anyone, their actions are justified with regard to rapid action that need not be slowed or de-escalated. Ultimately, the principle of reasonableness legitimates the discretion of officers in the use of force. It need not be sanctioned — in both senses of this word, as an official endorsement or as a judgement with punitive potential.
This framing of reasonableness as determined from the officer’s perspective leads to particular performances by officers, for instance the yelling of “stop resisting” while detaining a person, or “stop reaching for my gun” before killing a civilian. These performances make audible and thus archivable in audio or video recordings the perspective of the officer sufficient to justify violence.
Though “demographic” information is not included in lists of criteria that accompany things like training documents and jury instructions predicated on Graham v Connor, actual police practices indicate that “reasonableness” in determining justified use of force is influenced by the race of the civilian on which it is used. Since all young black men are coded as threats, and since this code persists beyond police culture and is prominent in American society, simply being young, black, and male is reason enough to justify that the objectively reasonable officer would use violence against such a person. In the rare events when use-of-force incidents against people of color are judged by civilian juries, we routinely see this code prevail.
Judith Butler’s concept of the petty sovereign is helpful in understanding the police function and importantly beyond the discourse of legitimacy. Since the liberal conceptions of the police have been disposed, along with the liberal fantasy of the Rule of Law, we are left with little need for a concept of legitimacy, particularly when it lacks an object in the world to which it signifies. Petty sovereigns are “delegated with the power to render unilateral decisions, accountable to no law and without any legitimate authority.” What Butler means here is that the formal juridical mechanisms of probable cause and reasonableness are but unnecessary pretenses feigning the governance of an actually unregulated authority. Police, instead, represent “a lawless and prerogatory power, a ‘rogue’ power par exellence.”
For Butler, the petty sovereign is also contingent upon the period of neoliberalization in which this figure emerged. But this perspective is contrary to predominating theories of neoliberalism, where the state is described as disintegrating. There is not a reduction in state power, but rather, it is being differently mobilized. This is particularly clear in the case of policing. While markets are deregulated and social welfare programs are gutted, there is, as De Lint claims “a more intensive use of the criminal law as a tool of sovereignty in the penetration of public order.” This powerfully substantiates Neocleous’ claim that police is essentially tasked with the administration of poverty.
The Rule of Law and States of Exception
While the officer coalesces the legislative, executive and judicial, they similarly function as sovereign agents in that they may determine and act definitively to make live and let die those profiled and stopped. In addition to the unity of the separate powers of government in the person of the police officer, they also determine a suspension of the Rule of Law. For Agamben, sovereignty is asserted through such determinations. Since the police operate as petty sovereigns, the authority is not clearly allocated through the command of any office, though certain juridical artifacts (discussed above) confirm the discretionary authority that defines the sovereign act.
The determination of the state of exception is the character of the sovereign, and is often conceived as being made on the basis of necessity. The necessity that is the purview of police is more popularly conceived as that of security. But what security means in the US context is, as discussed above, the administration of poverty, the shoring up of the color line, and the protection of the relations of property.
Agamben (2005), citing Schmitt, explains that the sovereignty exercised in establishing the state of exception from the Rule of Law proves that law is not necessary to make law. Law is instead used to create legal vacuums where the discretion of individual officers functions to produce law. The use of discretion in bending existing laws in order to empower police and disenfranchise civilians, and particularly people of color, is a widely regarded phenomenon, and research shows this perception contributes to civilians forgoing complaint procedures when they are abused by police (Jeffries, 2011)
The petty sovereign is what the permanent state of exception looks like — the figure who can consolidate the divided powers of the democratic state and make the determination to make live or let die. Walter Benjamin wrote many decades ago that characteristic of the era of advanced capitalism is the permanent state of exception. This condition is best exemplified with the contemporary militarization of police, and the maintained or rising use of force in the presence of persistent visibility. The fantasy of the Rule of Law is obliterated with this visibility, as the violence of policing is laid bare.
As such, the figure of the police as recklessly, lawlessly violent is not a breach from a normally stable and reliable Rule of Law. Instead, the permanent state of exception is one where this is the normal function of police, as petty sovereigns, sanctioned or otherwise. While legal practices and codes provide a framework to allow for brutally violent and racist policing, these are not necessary. While the history of the police institution has at its core the genetic material of white supremacy, this is not required for the racialization of profiling and violent force. When security is made to come before freedom, and when young, black men are coded as threats to security, the mere existence of police as petty sovereigns generates states of exception where they may profile and brutalize at will.
Fractures in the Racial Order and the Rule of Capital
For the reasons discussed above, policing represents a key contradiction preventing democratic communities of free people. Confronting the institution of policing is a means by which to subvert the racial order and the rule of capital. Like borders and citizenship, policing is a fundamental barrier between us and a free world. Like these other institutions, policing is beyond reform by benevolent and accountable representatives or popular control, if our intent is to reach liberatory ends. Rather, the abolition of the racial order and the rule of capital requires that we likewise abolish the institution of policing.
[This blog was originally posted with password protection in February. Thanks to my friends and colleagues who offered feedback and other support. Special thanks to D.B. Banks for some helpful editorial suggestions.]