Who Guards the Guardians Themselves? By: Stephen McKitt

Who Guards the Guardians Themselves?

By: Stephen McKitt

            “Who guards the guardians themselves” or as it was originally written in Latin “Quis custodiet ipsos custodies” is a phrase from the Roman poet Juvenal’s Satires.[1] The line has come to be more popularly recited as “who watches the guardians” and is used modernly as a commentary on abuses of power and lack of oversight amongst those that are charged with governing or protecting citizens.[2] In The Republic Plato suggests that these so called guardians would police themselves and be beyond reproach.[3] Plato goes so far as to say “Yes it would be absurd that a guardian should need a guard”[4]. Of course in this day and age the public understands that authority without oversight leads to corruption and abuses of power, and at least in this respect Plato was mistaken.

In the weeks following the shooting death of eighteen year old Michael Brown by police in Ferguson, Missouri[5] the phrase “who guards the guardians themselves” seems especially relevant.  It forces us to wonder who, if anyone should be held accountable for this tragedy? And if someone should be held accountable, who will be the ones to hold them accountable?

By now the events of Michael Brown’s death have been well documented by numerous sources, but a brief account of what is thought to have happened is necessary to frame this issue. On Sunday August 9, 2014 a police officer, later revealed to be Darren Wilson, responded to a 911 call about a convenience store robbery.[6] While in route to the store, Wilson encountered Michael Brown who was walking with a friend. The encounter resulted in Wilson shooting Brown to death by Wilson.[7] There are conflicting reports concerning the events that led to Wilson shooting Brown. The police allege that Brown assaulted Wilson and Wilson’s actions were purely in self-defense.[8] While some witnesses on the other hand have come forward and stated that Brown had his hands up and said “don’t shoot” before Wilson shot him.[9] The only undisputed facts of this incident are that an unharmed eighteen year old boy was shot to death by a police officer.

This leads back to the phrase “who watches the guardians”, the guardians in this instance being the police officers in the Ferguson community. In a situation like this, the obvious answer would be that the chief of police would provide oversight and if not him, then the mayor of Ferguson would do so. Sadly, there has not been much done by these two individuals in terms of reconciling what Wilson said happened with what eye witnesses are saying, or easing the concerns of the Ferguson community. So far the Chief of police’s response to the incident has been to allow his officers to turn the city into what could fairly be described as a police state. The Ferguson police force has deployed armored vehicles, tear gas, rubber bullets and made numerous arrests in an effort to, as the mayor phrased it “have and maintain peace”[10]. To be fair, there have been legitimate occurrences of looting and crime in Ferguson following the incident, but even with these instances it is not difficult to consider the Ferguson police’s actions as excessive and in fact there is pending litigation on the issue.[11] Eventually the Governor of Ferguson decided that it would be best to place the State Highway Patrol in charge of the protection of Ferguson.[12]

If the mayor and the Ferguson Police Chief cannot be trusted to provide oversight into the incident, then the next body that would be expected to provide such oversight would be the courts. In theory the district attorney would launch an investigation and if there was sufficient evidence of wrongdoing Darren Wilson would be on trial in criminal court for negligent homicide and he would be possibly civilly liable for his alleged use of excessive force. Putting aside the possible criminal case, the civil case against Wilson would be very difficult to win.[13] This is because officers like Wilson are protected from liability in excessive force cases in two ways.[14] First, qualified immunity absolves government agents of liability unless their actions violate a clearly established right that a reasonable person would have known of.[15] Second, the government agent would be free from liability under the Fourth Amendment if the amount of force he used was found to be what a reasonable officer under the circumstances would have used.[16]Together these two test “result in overprotection” of defendants like Wilson from civil liability.[17] Discounting possible criminal charges being brought against Wilson (although a grand jury has been convened to decide if he should be indicted he is still as of now on paid leave), the courts are unlikely to provide punishment for the abuse of power or lack of oversight spring from Brown’s death.

So again, the question arises “who watches the guardians.” In this instance this task has fallen to the ones the police are tasked with protecting. The normal citizens have taken on the responsibility of holding the police responsible for Brown’s death. They have done this through vigils, marches, social media outrage, and even attempting to block a highway.[18]The normal citizens, feeling that no one else would, have taken action to voice their displeasure with the way the entire incident has been handled.[19] There is no need to recount the countless times throughout history the people themselves have had to hold the guardians accountable, even in this country.[20] With the mayor and police failing them and things like qualified immunity providing powerful protection to defendants like Wilson in the courts, the people have no other recourse than to protest how this incident has been handled. This is the appropriate and necessary response to Brown’s death and how the police handled the subsequent events following it. There have been some cases of looting and violence, but for the most part the citizens of Ferguson have done well in letting the world know that the actions of their “guardians” have so far been unacceptable. Elsewhere in this blog, Ms. Smith argues that things like qualified immunity for police and the tactics used by the officers to “maintain peace” are a necessary evil in order to ensure that communities do not fall apart from the sheer outrage that accompanies events like Brown’s death. If those things are necessary evils to ensure decorum within the community, then the citizen’s of Ferguson’s protest are also necessary. Their actions are necessary to display to the rest of the world that if there is no one else to hold the “guardians” accountable then the people themselves will.

[1]  Juvenal, Satire VI, lines 347-48.

[2] Leonid Hurwicz. But Who Guards the Guardians. American Economic Review. Vol. 98. Jun 2008.

[3] Plato, The Republic, 265 (1991).

[4] Id.

[5]Timeline: Michael Brown Shooting in Ferguson, Mo., usatoday.com (August 14, 2014), http://www.usatoday.com/story/news/nation/2014/08/14/michael-brown-ferguson-missouri-timeline/14051827/

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11]Police used Excessive Force to Quell Ferguson Unrest:Suit, newyorkpost.com (August 29,2014), http://nypost.com/2014/08/29/police-used-excessive-force-to-quell-ferguson-unrest-suit/

[12] Id.

[13]  See generally, Diana Hassel, Excessive Reasonableness, 43 Ind. L. Rev. 117 (2009).

[14] Id. at 117

[15] Id.

[16]Id.

[17] Id.

[18]Wesley Lowery, Ferguson Protest Tries to Shut Down I-70, as Calls Continue for McCulloch to Step Down, Washingtonpost.com (Sep. 10, 2014),  http://www.washingtonpost.com/politics/ferguson-protest-tries-to-shut-down-i-70-as-calls-continue-for-prosecutor-to-step-down/2014/09/10/2cb3a97c-37b4-11e4-8601-97ba88884ffd_story.html

[19]Timeline: Michael Brown Shooting in Ferguson, Mo., supra note 5.

[20] See generally http://www.ushistory.org/

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