We Must Treat Police Officers Like Soldiers | Opinion

The recent killing of George Floyd and the protests throughout the U.S. have, once again, brought the issue of police accountability into the national debate. While the officer at the scene is now being charged with murder, this kind of result is sadly atypical. One only needs to look at the cases of Eric Garner, Michael Brown, Alton Sterling and others to see the pattern of police officers assaulting and killing unarmed black men but escaping criminal charges. The problem is that police officers are treated just like ordinary citizens when it comes to criminal liability.

But they are not mere citizens. Police officers are granted special powers to detain, arrest and use force—in particular, lethal force. But it may surprise you to know that these special powers currently create no corresponding special responsibilities or duties. What we need is a criminal code of police justice that is specifically tailored to regulate these unique powers.

Ironically, the National Guard troops currently deployed alongside police officers to quell these protests are governed by a unique criminal code. This Uniform Code of Military Justice subjects these soldiers (in addition to the traditional ordinary citizen crimes of assault, murder, etc.) to a host of unique crimes like failure to obey orders, dereliction of duty and conduct unbecoming of an officer. The purpose behind these unique laws is to regulate professionalism and ethical concerns that may not be covered by traditional crimes. Such laws are important because soldiers acting under federal or state authority are often required to use force in the protection of citizens. In such an environment, good order and discipline is critical—and requires the application of a unique set of laws to soldiers that are very different from those that apply to ordinary citizens.

Accordingly, police officers should be treated like these soldiers when it comes to criminal liability. They, too, carry guns, wear uniforms, work in hierarchal structures, go through extensive training and, most importantly, have the authority to detain individuals and use lethal force. A unique set of laws applicable to the police that, for example, criminalizes dereliction of duty or conduct unbecoming of an officer would make it easier to assure that officers will be held criminally responsible when they overstep their authority.

For example, consider the recent instances of police officers pepper spraying unarmed citizens during the protests. Currently, it would be difficult to convict an officer of an assault because they inherently have the legal authority to use force in this kind of situation. However, the presence of a code that explicitly makes it criminal for an officer to neglect his/her duty by using excessive force would make it much easier for prosecutors to hold officers responsible for such acts. In turn, this may deter officers from doing the very things that Americans are now protesting.

Imposing such heightened criminal standards could also carry the benefit of helping to dismantle what is referred to as the "blue wall of silence" in police departments. This system discourages police officers from coming forward with information on abuse or corruption by fellow officers, due to fear of being fired or demoted. Such was the case with former Baltimore detective Joe Crystal, who reported the abuse of a suspect by one of his fellow officers, only to be demoted and harassed until he quit. This culture of silence may very well have contributed to the failure of Officer Derek Chauvin's fellow officers to intervene on Mr. Floyd's behalf.

Moreover, this environment in police departments differs sharply from military culture, which values loyalty to the organization over individual loyalty by criminalizing this kind of unethical conduct.

A criminal code of police justice would not need a separate court system. It could be implemented within the current civilian system of courts, prosecutors, judges and juries. The reason for this is that police officers carry out their duties in communities. They should, therefore, be prosecuted and tried by the people who reside in those communities. This same logic applies to National Guard soldiers deployed in their local communities, who are also subject to the civilian court system.

Changing criminal laws is obviously not an easy task. It takes political capital and will naturally confront challenges. But the current climate may be the opportune time for states to begin to make this kind of real structural change. And moreover, we have the military code as a working model. While certain interest groups—most notably, police officers and their unions—might be opposed to such changes, in the end such a proposal would benefit police officers as much as citizens by providing officers with a clearer sense of what is expected of them. This would help foster an atmosphere of compliance, which would go a long way towards establishing a higher degree of goodwill between officers and the communities that they serve. With increasing calls for decreasing police funding or abolishing police departments outright, we should instead be focused on raising professionalism and ethical standards by treating police officers more like soldiers.

Monu Bedi is a law professor at DePaul Law School, where he specializes in criminal law and policing. Previously, he was a JAG officer in the Navy.

Greg Everett is a second lieutenant in the Tennessee National Guard and practicing attorney based in Nashville, TN. The views expressed are those of the co-author and do not reflect the official policy or position of any employer of the co-author or the Tennessee Army National Guard. Follow him on Twitter @greg_everett.

The views expressed in this article are the writers' own.