Joe Carter wrote a widely praised blog post on Le Affair Gates at First Things. It is a thoughtful inquiry into the libertarian psyche, and the appropriate role of the cop on his beat (an issue I recently explored here).
Read Joe’s whole post. And note that regarding the Cambridge kerfuffle, he is wrong.
I share the view of noted criminologist James Q. Wilson that the primary function of patrol officers—whether walking a beat or patrolling in a car—is the maintenance of public order rather than strict enforcement of the letter of the law.
Law-focused libertarians, giving primacy to the harm principle, contend that the officer should have acted only after harm had occurred (e.g., after Gates committed a violent act) in clear violation of the law. Order-centric conservatives like me, giving primacy to the entropy principle, believe that the officer should have acted in a way that prevented the situation from degenerating into public disorder. There is a natural tension between these two positions that requires finding the right balance; leaning too far in either direction leads to either civil unrest or violations of civil rights.
As applied to the Gates situation, I think we saw an acceptable, though imperfect, balance of interests.
It’s useful to look at the Atlantic article where James Q. Wilson articulated why he thinks police should maintain public order:
Should police activity on the street be shaped, in important ways, by the standards of the neighborhood rather than by the rules of the state? Over the past two decades, the shift of police from order-maintenance to law enforcement has brought them increasingly under the influence of legal restrictions, provoked by media complaints and enforced by court decisions and departmental orders. As a consequence, the order maintenance functions of the police are now governed by rules developed to control police relations with suspected criminals. This is, we think, an entirely new development. For centuries, the role of the police as watchmen was judged primarily not in terms of its compliance with appropriate procedures but rather in terms of its attaining a desired objective…
Until quite recently in many states, and even today in some places, the police made arrests on such charges as “suspicious person” or “vagrancy” or “public drunkenness”—charges with scarcely any legal meaning. These charges exist not because society wants judges to punish vagrants or drunks but because it wants an officer to have the legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed.
Once we begin to think of all aspects of police work as involving the application of universal rules under special procedures, we inevitably ask what constitutes an “undesirable person” and why we should “criminalize” vagrancy or drunkenness. A strong and commendable desire to see that people are treated fairly makes us worry about allowing the police to rout persons who are undesirable by some vague or parochial standard. A growing and not-so-commendable utilitarianism leads us to doubt that any behavior that does not “hurt” another person should be made illegal. And thus many of us who watch over the police are reluctant to allow them to perform, in the only way they can, a function that every neighborhood desperately wants them to perform.
This wish to “decriminalize” disreputable behavior that “harms no one”- and thus remove the ultimate sanction the police can employ to maintain neighborhood order—is, we think, a mistake. Arresting a single drunk or a single vagrant who has harmed no identifiable person seems unjust, and in a sense it is. But failing to do anything about a score of drunks or a hundred vagrants may destroy an entire community.
So was the arrest of Skip Gates an example of a police officer reasonably applying the James Q. Wilson approach to keeping public order? I don’t think so. Professor Gates wasn’t an “undesirable” who needed to be removed from the neighborhood after “informal efforts to preserve order in the streets” had failed — he was a law-abiding Cambridge resident standing in his own house, which happens to be located in a perfectly orderly neighborhood.
Nor does the action for which he was arrested — verbally berating a police officer — constitute a source of disorder in the neighborhood. Would anyone in Cambridge claim that there is a rash or these sorts of situations, in the same way that some locales experience a rash of public drunkenness or vagrancy? Does the neighborhood “desperately want” the police to push back against an “epidemic” of folks verbally abusing police officers? Is there even a plausible scenario in which the officer departing the scene without making an arrest would’ve led to future disorder in that neighborhood?
Libertarians and conservatives do disagree about whether the police should use James Q. Wilson style policing to maintain order, but this particular case bolsters the libertarian position — the discretion afforded police by disorderly conduct laws led to an arrest even though public order wasn’t threatened.