The murder of George Floyd while being arrested for allegedly using a counterfeit $20 Federal Reserve Note at a Missouri grocery store has sparked a wave of destructive mob violence across the United States, and even reverberated through the rest of the world.
The deplorable arrest tactics that led to Floyd’s death notwithstanding, investigating cases of fraud, like producing or using counterfeit money, is a legitimate law enforcement activity. Even in the most libertarian society, where force is used only in defense of persons and their justly held property, there would still be the need to apprehend those committing theft by falsely presenting goods for exchange.
The police had valid probable cause to arrest George Floyd for defrauding a merchant with a counterfeit Federal Reserve Note. Simultaneously, the arresting officer violated all known use of force policies and training standards by kneeling on the arrested subject’s neck for close to nine minutes. It wasn’t a failure of policy that caused the death but ignorance of legitimate arrest tactics.
Hacking at Branches
As a former law enforcement officer and high-liability subjects instructor turned libertarian, I have long held that serious reform will never be made by arguing against police tactics.
The real problem rests in the political authority to enforce legislation that is completely divorced from protecting life, liberty, and, most importantly, private property. Defensive force against theft, fraud, and aggression is a legitimate function of government (whatever that looks like) and any legislation beyond these delegated authorities perverts law into an instrument of plunder.
Tolerance of legislative and regulatory bodies to manufacture artificial law is the real threat to civil society. Abusive enforcers are merely the effect, perverted law is the real cause of social distress and injustice.
Sound Arrest Tactics
The amount of attention drawn to police tactics in light of George Floyd’s murder in custody offers an opportunity to discuss substantive issues. Still, simply arguing over abusive police tactics will not yield any meaningful change in the final analysis. The best outcome of this incident would be to dispense with the superficial and strike at the root of the problem.
Police are rightly trained to put resistant suspects face down on the ground to prevent them from accessing or deploying weapons. This will continue because the nature of human threats will continue and putting suspects into a prone position is the best way to immobilize them for handcuffing or other restraints.
Proper defensive tactics and arrest techniques advise kneeling on the shoulder above and below the suspect’s armpit while applying an arm lock. From there handcuffs can be applied to the immobilized arm and then, through compliance with verbal command or further mechanical controls, to the suspect’s other hand.
In my experience as a defensive tactics instructor and product of the Florida and Federal law enforcement training standards, students are taught to deliberately avoid kneeling on a suspect’s neck while in this “common ground” prone position.
It is called common ground because putting a suspect into the prone position is where all takedown maneuvers culminate. Unlike wrestling or mixed martial arts, fighting with a suspect on the ground, laying on their back is to be avoided at all costs. Firstly, because they can fight with all their limbs and appendages (headbutt, bite, spit, etc.) and, secondly, because they can access whatever weapons they may be carrying.
Putting a suspect in the prone, common ground, is necessary in a world where anyone can be armed. While face down, pinned to the ground using a joint lock or immobilization technique it is difficult for an arrested subject to reach into their waste band or front facing pants pockets where most weapons are carried. Further, even if they do have a weapon in their free hand human physiology makes it difficult to employ it rearward.
This is the reason that martial arts derived from samurai traditions, where everyone was expected to be armed with at least one edged weapon, like aikido or other Japanese jujutsu, emphasize prone position immobilizations. In modern society, where more lethal weapons are even more readily concealable, hand cuffing resistant or belligerent subjects is essential to the safety of both the arresting officer and the offender. It reduces the need to escalate the level of force.
So, putting an arrested subject in the prone is likely not going to leave the realm of legitimate arrest tactics, even in the most libertarian society. While the amount of state propagated social agitation and conflict would be drastically reduced if law was confined to the protection of people, private property, and valid contracts, there still must be an underlying assumption of human fallibility.
Legitimate Law Enforcement
A private property social and legal order presumes that human nature contains elements of ignorance, malice, and greed. Therefore, some capacity for violence must stand ready to dissuade, repel, and arrest anti-social actors. It bears repeating that law in a free society conforms to a simple formulation:
Do all you have agreed to do and do not encroach upon other people or their justly held property.
This statement of common law principle allows for enforceable contracts and criminal torts that emphasize making victims of encroachment whole through compensatory restitution. If and when a society adopts a private property centric legal order the need for defensive violence would dramatically reduce and the economic growth, encouraged by secure property rights and free markets, would allow for the solution to most social ills.
Even then, there would always be the need for martial skills to contend with those that would engage in predation rather than production, while also standing guard against those that would seek to form a tyrannical state and pervert the law into an institution of plunder.
It is for this reason that the United States Constitution, a legal charter aimed at forming a more perfect union of free and independent political units, asserts the whole body of the people, armed, organized, and disciplined to execute the laws, repel invasions, and suppress insurrections is necessary to the security of a free state.
In other words, every able bodied citizen is obliged to train in weapons based martial arts in order to secure equality under the (common) law. Leaving these functions to political control and bureaucratic management invites the kind of subjugation and tyranny that is antithetical to the blessings of liberty the American federal republic was constituted to protect.
The more law gets undermined through legislation and political churn the more perverted justice will become. The injustice of politicized law puts the citizenry on an increasingly severe collision course with those that seek to enforce it. Violent eruptions are the inevitable response to corrupted law enforcement even absent the socialist agitators attending the riots in the name of George Floyd’s death.
The American people of all stripes, and minorities in particular, have legitimate grievances with their treatment under politicized law enforcement. One need look no further than drug prohibition to see examples of “institutional racism” as well as abuses of governmental authority.
Starting in 1914, federal legislative prohibitions on possessing certain types of property have been specifically directed toward the ethnic groups identified with their use; e.g., Chinese with heroine, Hispanics with marijuana, and blacks with cocaine. Further, the foremost proponent of the drug war, Harry Anslinger, openly sensationalized the potential threats posed by minorities under the influence of illicit drugs in order to justify the growth of his federal drug enforcement agency.
So, one need look no further than the war on drugs to see institutional racism enabled by the corruption of politicized law. This tendency will remain so long as governments have the ability to “make law”, in the form of legislation and judicial opinion, rather than simply upholding the universal principles of law as a means of protecting life, liberty, and private property.
Government is Humanly Fallible
Personal opinions, biases, and irrational preferences are built into the human condition, as is mass hysteria. Shaping public perception as a tool of legitimizing the political elite, using Bernays’ propaganda techniques, is fully acknowledged and documented by cheerleaders for the oligarchy, like Georgetown Professor Carol Quigley. Rogue public officials readily admit to using ‘brainwashing’ techniques to convince citizens to give up their fundamental liberties out of fear.
Understanding how fickle public opinion can be necessitated curtailing democracy, as spectacles of turbulence and contention, into a republic of limited and enumerated powers aimed at securing the blessing of liberty. The people of the United States have forgotten the importance of limiting government enforcement power to the only those functions necessary and proper to protecting life, liberty, and property.
Rather than trying to influence the intangible side of institutional racism, i.e., the eternally evolving definition of racism that invites the polarizing neo-Marxist message of the Black Lives Matter Movement, in addition to the elusive field of personal beliefs and public opinion, greater opportunity for real change comes from examining the institutional arrangements that create injustice.
If institutional racism exists in law enforcement, trying to change attitudes about race is a long, expensive, contentious, and uncertain path to take. However, institutional arrangements can be more readily shifted through policy and the ‘supreme law of the land’ already has decentralized, local, self-governing law enforcement at its core.
By focusing on institutions and aligning their structure to the tasks they are supposed to perform one can strip away the emotionalism that tends to cloud judgement. The most instrumental analysis is the incentives created by these institutional arrangements.
In other words, you get more juice for the squeeze by focusing on institutions rather than tactics.
Abuses of police power are facilitated by the judicial fabrication of qualified immunity that exempts police officers from abiding by the common law, what should be applicable to all people and at all times. In short, qualified immunity must end if there is to be equality under the law.
Constitutional Law Enforcement
Again, there will always be the need for security and justice services, even in the most libertarian society. Criminals need to be apprehended, despite the likelihood of resistance, up to and including the use of deadly force. Yet, security and justice professionals must remain subject to universal standards, applicable to everyone and at all times. No one can be permitted to be above the law.
The question is: What institutional arrangements allow for effective law enforcement while being less susceptible to the corruptions and abuse of politicized law currently manifest?
Perfection is not for the human realm and anyone seeking positive change must guard against holding out for a Nirvana standard before taking action. Further, having a solutions focus includes leveraging resources that are already available.
Making use of the existing Constitution in a quest to change law enforcement as an institution is powerful on two fronts: First, the ‘supreme law of the land’ is an already accepted foundational legal charter and using its unmodified provisions, through new interpretation and practice, is more psychologically palatable than starting from a blank slate.
Second, transitioning from the present state to the desired future involves restoring the core concepts of federated decentralization by merely stripping away what has been corrupted over time and through repeated political churn. It is a restoration and revitalization of long-neglected institutions ‘necessary to the security of a free state.’
Sure, there is room for experimentation as local communities develop their own way to implement the restoration and revitalization plan. Yet, using the Constitutional solution to stand up institutions of local, citizen-based law enforcement avoids the chaos, destruction, and bedlam on display in ‘cop-free zones’ created by those who simply want to defund the police.
Under the ideal federal structure, conforming to the Constitution, all law enforcement agencies would be subordinate to the local militia who are tasked with executing the laws (Art. 1, Sec. 8, Cl. 15). While the President, as chief executive, must ‘take care that the laws be faithfully executed’ (Art.2 Sec. 3) the local militia are the practical executors on the ground.
Sheriffs and police departments could, of course, be established by various counties and municipalities, subject to local agreements, yet one must ask: Who in their right mind would ever agree to be taxed to fund such wasteful bureaucracies so prone to corruption and abuse?
There is nothing in the Constitution granting power to sheriffs or police, yet they are prolific and heavily impact people’s lives and livelihoods. Police and sheriffs are accountable first, and primarily, to politicians and other bureaucrats long before rendering any service to the constituents of their given political communities. The disconnect between citizens, as principal, and their security and justice providing agents is inescapable when subject to politico-bureaucratic management.
Police and sheriff’s deputies become an enforcement tool for the political-bureaucratic caste to impose whatever legislation or regulations deemed within their ever-expanding mandate and pose the same threats to liberty as the standing armies warned against in the Anglo-American tradition since the 1690s.
Further, as tax-funded bureaucracies, police and sheriffs are divorced from economic calculation and cannot, in any rational way, determine how to direct resources toward the highest valued ends of their constituents.
The production of security must always deal with questions of how much, of what kind, of resources should be expended, where, and on whose behalf. Left to politicians and bureaucrats to figure out, the answer is always wasteful of the resources under their control, at tax-payer expense, and subject to political whim rather than customer service.
Any hope of real reform requires subjecting all public service institutions to the discipline imposed by market competition. Only through voluntary exchange, with severable contracts, in a competitive market of alternative providers, will incentives orient on responding to customer satisfaction. Only through the price mechanism, discovered through the market process, will real consumer preferences be serviced; and only through profit and loss will service providers be compelled to abandon the fraud, waste, and abuse rampant wherever government bureaucracies operate.
Subcontracting Law Enforcement
Because people in modern society, participating in a complex economy, may be less inclined to actively participate in day to day law enforcement activities, or their needs may require specialization, outsourcing some degree of security and justice services makes sense. The main concern while contemplating delegated authorities is to ensure the agent does not assume powers sufficient to subjugate the principal.
In other words, whether people outsource security and justice to government agencies or market providers they still must maintain their own martial skills and tools to prevent their servants becoming a tyrannical master. This is why the founders of the United States codified the need for the whole body of the people, aside from a few public officials, must be armed, organized, and disciplined to execute the laws, repel invasions, and suppress insurrections.
The exact proportion of what gets done through militia versus subcontracted security provider may vary based on local circumstances, yet this too aligns with the concept of decentralized self-government. Different strokes for different folks.
The common law, and its functions, remain limited to the protection of people, their property, and the free exchange thereof through voluntary contracts. Neither militia members nor their subcontractors may lawfully exceed this mandate and the universal standards of just conduct in the performance of law enforcement activity.
To see how the market for security and justice services could function, even as a subcontracted supplement to citizen militia based law enforcement, economists and political theorists have posited a number of models and scenarios.
It’s important to remember that structural models are offered to improve efficiency and customer satisfaction in comparison to the current state of affairs. The models offer alternative arrangements to solve specific problems yet always rely upon human fallibility to implement. Like all things in the human condition, there remains a veil of ignorance as well as the propensity for most people to act from emotion and impulse rather than logic and sound reasoning.
Most people do not like adhering to principles and look to blame their failures on systems rather than their own mistakes. This is also one of the reasons why governments invariably call for more resources and authorities whenever there is a massive security failure like Pearl Harbor, 9/11, and now the Floyd Riots.
Increasing the size of the welfare-warfare state is the familiar solution when politicians and bureaucrats flop on the job. The failure to prevent Pearl Harbor led to a ‘central’ intelligence agency (CIA) so that someone could see the big picture and connect the dots amid various departments. Yet this new bureaucracy also failed spectacularly to predict most of the epoch shaping events in its existence, including the collapse of the Soviet Union and the 9/11 terror attacks.
This then led to the creation of yet another oversight bureaucracy, the Office of the Director of National Intelligence (DNI), to do the big picture coordinating function amid the seventeen disparate agencies making up the so-called intelligence community. Despite standing up another layer of bureaucracy to do what the CIA failed to do, the DNI quickly became a bloated, dysfunctional white-collar welfare program, irrelevant to streamlining intelligence coordination.
The point here is that government programs and agencies rarely deliver on their reason for being, and even less so within their budgetary allocations. The answer for government failure is all too often more resources and authorities at the expense of the tax-paying public that will also eventually fail.
The same is true in law enforcement. Rather than acknowledge that some officers just ignore or disregard training standards and use of force policies, the political response is to push oversight to ‘higher’, more disconnected bureaucratic panels or even nationalize police. This is the wrong direction if universal justice is the goal.
To make law enforcement more responsive to the needs of their customers, the principle-agent problem must be resolved. The model needs to go in the opposite direction of political control and bureaucratic management.
Subcontracting militia functions to a market provider is a natural outgrowth of social cooperation, specialization, and the division of labor. Here, again, denying qualified immunity to these actors and the discipline imposed by strict liability, severable contracts, and market competition is far superior to the current state where policing is produced through a socialist model.
Overcome The Resistance To Transform The Police
The two biggest obstacles facing any transition toward improvement is the psychological resistance to change and the political actors who will lose control of the enforcers, subsidized by tax-payers, to impose their will. The political caste enjoys having their ‘subjects’ pay for the boot that stomps on their own necks. Meanwhile, most people have been conditioned to accept this exploitive arrangement as, somehow, necessary to the maintenance of civil society.
Models for revitalizing the militia system and also privatizing police functions in some “rough combination”, as Joseph Stromberg posited, offer a manner of providing security to free societies by denying monopoly privileges to the political caste. Not only does this prevent abuse through qualified immunity it nullifies the social strife caused by politicized legislation. There is little chance citizens as militia would participate in or pay their contracted surrogates to enforce so-called ‘victimless’ crimes.
Further, the decentralized nature of service provision, organized around the core basis of common law, allows for local solutions to particular community needs. Absent the resource drain devoted to enforcing politicized legislation, coupled with a body of citizens that are near universally armed, organized, and disciplined in security and justice procedure, authentic crimes against person and property would be thoroughly dissuaded.
Property values would rise as the integrity of private property remained more intact under this protection and social harmony would increase as communities join together, through the self-interest of minimizing their own security costs, for training and to address common issues.
Additionally, since governments could no longer tax people in order to subsidize the modern day bread and circuses of various ball sports, yet congress is mandated to arm, organize, and discipline the militia, widespread inculcation of martial skill would necessitate polite norms of behavior so as to avoid conflict. An armed equilibrium demands non-aggressive behavior or, as Robert Heinlein quipped, and samurai etiquette shows, an armed society is a polite society.
Pointing this out usually draws instinctive disbelief and dismissal from the socially conditioned.
Many mistake corporate prisons that do the corrupt bidding of the state with privatization. Enforcing unlawful legislation (malum prohibitum) is not privatized policing and is, in fact and deed, the source of conflict and corruption plaguing civil society.
Privatized policing is the separation of enforcement and politico-bureaucratic control so that the only enforceable laws are those delegable by individuals, e.g. direct protection of person and property.
Only real privatization of policing will prevent the perversion of law, along with the resulting corruption and abuse, currently on display.