So, apparently the flower of the DC blogosphere were interrupted in the middle of a midnight group-dance at the Jefferson Memorial, and one of them was arrested, booked and released after about five hours.
Let’s agree for the sake of argument that the description and video of the event provided by the dancers represents a complete and unbiased account of what happened. Let’s also agree that a better cop would have made a better judgment call in this situation. Most likely, he would have asked this group what was going on, and once he learned what they were doing, would have said “Have fun”, and gotten on with protecting and serving. (Presuming, of course, the reaction of those asked was not “You have no legal basis for interrogating me, so I refuse to answer your question.”).
But what’s funny about the reaction of so many commentators is that they assume away the trade-offs that would be involved in expecting that such an attitude be flawlessly executed by cops. How would we go about having a world where a group can do this without any fear of interference by law enforcement? I think the key requirement would be fielding a police force consistently capable of distinguishing between “harmless and fun, if unusual, behavior” and “disruptive behavior that could plausibly be interpreted as legal or illegal, but is disconcerting and threatens to get worse”. One thing that might help somewhat is to hire smarter cops. But smart people are a finite resource, so this would probably cost more (that is, we would pay higher taxes). Plus, resources would be diverted from software engineering, poetry writing and CRM system implementations. It also probably wouldn’t be enough to solve the problem. We could train cops better, but once again that means higher taxes. It also seems to me that judgment is extremely inelastic to training, and is much more driven by personality and apprenticeship. So, again, it would probably help, but still wouldn’t solve the problem.
We could put in place stricter rules to govern police behavior in order to reduce the scope for judgment, and hire more internal affairs investigators to enforce compliance with these rules. No set of laws plus departmental regulations, however, can come close to laying out a cookbook to be followed precisely in all situations, and therefore some judgment and discretion are always required by cops. You’re therefore talking about changing the culture of a police department in order to have a world free for flash-mob dances, which is very expensive and has other implications as well. For example, it might very well make police less able or likely to interfere with a marginally more unruly group that then encourages other unruly groups to hang around the area that then leads to purse-snatching, fewer tourists, ongoing worsening of the crowd, more serious crimes and so on. On the other hand, you could argue that by changing the way they interact with citizens, cops could get more cooperation and therefore become more effective and so on. It isn’t a simple knob that we dial between freedom and order.
This is why the intuitive observation that the lack of perspective of the dancers is relevant: by trying to make the world perfectly safe for midnight dances at memorials, we may very well create worse oppression – by criminals or the state – elsewhere.