Protests, Public Interest and Police Discretion

Police discretion in the public interest.

Image found at ran a piece recently about protests that took place in Nashville, TN and the response of some to the course of action that the police took towards them. In brief, a group of people protesting the grand jury results in Ferguson, MO closed down several highways, including Interstate 24, as well as staging a “die-in” at a local mall. Rather than dispersing the protesters, the police closed off the affected roads, for the safety of the protesters, and offered coffee and hot chocolate to those who protested in front of the downtown police station. At least one citizen wrote a letter complaining of police action, claiming that they were allowing these groups to “disrupt” the city.

There are two elements that I think are well illustrated in this article that are not even hinted at by the author, let alone discussed in any detail.

Whose is the “Public Interest” when it comes to public roads?

The first element that struck me was that this incident is a perfect illustration of how politics works in a mixed-economy such as we have today. In today’s system the roads are public property, they shouldn’t be but that is an argument for another day, but whose right to use the roads gets protected and whose right does not? And how do you decide? In this particular case the rights of the protesters to protest were protected while the rights of commuters, and others, to travel freely were violated. (I know some say this was a peaceful protest, but it still involved force and did, especially in the case of the mall, violate rights.) The next time, it could work in the reverse. As Ayn Rand put it in her essay “The Pull Peddlers” in the book Capitalism: The Unknown Ideal:

the idea that “the public interest” supersedes private interests and rights, can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others.


If so, then all men and all private groups have to fight to the death for the privilege of being regarded as “the public.” The government’s policy has to swing like an erratic pendulum from group to group, hitting some and favoring others, at the whim of any given moment

In  pattern, what we see in the response to protesters is exactly what we see in the larger political/economic world. Who will get the benefits from a given government program or regulation and who will be required to pay for it? Who will the government give property to via eminent domain and who will be forced to give it up? It all depends on who has control of the government at any particular moment. Or put another, it all depends not on actual rights but on who will benefit those in power more at any given moment in time.

What sort of laws are we enforcing?

In his response to a letter from a citizen angry at how the police reacted to the protest the Chief of Police asked that the writer of the complaint imagine that he happened to be stopped for speeding and the officer, after finding there are no warrants and his license and registration were all in order, gave him a warning instead of a ticket. Wouldn’t the letter writer be happy if the officer had the discretion to let him off instead of citing him? The chief goes on to claim that only about 1 in 6 stops made by his officers resulted in citations being issued and rest, the vast majority, were just given warnings and that such discretionary enforcement is better than a policy of “zero tolerance.”

My question is, what sort of laws do we have on the books where 84% of people who have actually violated them are not cited for doing so? If going 10 mph over the speed limit, as in the example the chief gave, is not actually something that you should be penalized for, why are the police stopping you for it? If it is something that should be penalized, why are the police letting you off with a warning?

If police officers are allowed “discretion” in deciding who to cite for violating the law and who not to cite, by what criteria do they make that decision? Obviously there can be no objective reasons for such decisions otherwise it wouldn’t be discretion, it would be part of the law. Thus it is left up to what is essentially the whim of the officer. Perhaps one day he has had an argument with his wife and so everyone he stops gets a ticket while another day he is in a good mood so he lets everyone off with a warning instead. Or maybe he decides who to cite based on gender, race or appearance? Or maybe it is just a flip of a coin, heads you get a ticket, tails you get a warning?

Now I am not saying that the police should have a zero tolerance policy, there are certain to be cases where a warning is appropriate, but when the vast majority of stops for violations are not cited it certainly suggests that the laws in question are not needed in the first place and likely exist for reasons other than those for which they were passed.

A system that protects rights

Both of the issues discussed above have the same root cause, a system that fails to protect individual rights and indeed is willing to sacrifice those rights in the name of some supposed “public interest” or “public good.” As Ayn Rand pointed out, to claim something is in the “public interest” simply means that some individuals and groups are to be sacrificed to others.

If instead we had a system the existed solely to protect individual rights, these types of issues would not come up. Under such a system, all property would be privately owned and it would be up to the property owner to decide if they wanted to allow people to assemble on their property, be it a road or a mall, to protest. If they chose not to allow it, no one would have the right enter their property to protest, or for any reason, just as today no one has the right to barge into your home and protest for their cause in your living room. In such cases it is proper for the police to take such action as is needed to stop or prevent such a violation of rights.

The laws in such a system would be objective and exist only to protect the rights of individuals and there would be much less room, if any at all, for “discretion” on the part of the police. A violation of rights is a violation of rights and needs to be treated as such, not dismissed in some instances but not others at the whim of the police officer.