Defending the Undefendable by Walter Block

Chapter 13

THE DISHONEST COP

The hero of Serpico, a best-selling book and movie, is a renegade, bearded, hippie cop who refuses to obey the unspoken code of policemen, “Don’t turn against your fellow officers.” As Serpico states, “The only oath I ever took was to enforce the law—and it didn’t say against everybody except other cops.”

The story traces Serpico’s development, beginning with his boyhood ambition to be a good police officer. It reveals his initial naïveté about the corruption on the force, his solitary and unsuccessful attempts to interest the police brass in the situation, the contempt and hatred he experienced at the hands of his fellow officers, and his final disillusionment. Throughout, the assumption made about the “good guys” and the “bad guys” is evident. The good guys are Frank Serpico and one or two policemen who gave him limited aid in his quest for “justice” and punishment of the grafters. The bad guys were those cops on the take, and those who protect them from prosecution. It is precisely this view which should be questioned.

SERPICO AND GAMBLING

An envelope containing $300 plays an important part in the story of Serpico. It was delivered to him by a messenger from someone known only as “Jewish Max,” a powerful gambler. After many attempts, Serpico was unable to interest any of his superior officers in the attempted bribe.

Why was “Jewish Max” attempting to bestow money and gifts on an unwilling Serpico? “Jewish Max,” the purveyor of voluntary (gambling) services to consenting adults, was one of the intended victims of Serpico and other “honest” cops on the gambling squad! Their intention was to harass, chase, capture, and kidnap (jail) all those involved. The public is told that aggressive violent behavior on the part of the officers is necessary because gambling is against the law and it is their duty to uphold the law. But the most vicious Nazi thug in a concentration camp could claim this argument as a defense.

In another incident, a ghetto mother complained to Serpico that her son was being inducted into an illegal gambling operation. Serpico is asked to smash the operation. Now there can be little opposition to the attempt to protect a child from an activity that could be harmful to him. However, the disruption of an activity which is legitimate for adults, on the grounds that a child has become involved, is clearly objectionable. The solution in a case such as this lies in preventing the child from participation, not in the elimination of the activity. Sex, drinking, or driving should hardly be prohibited on the grounds that these activities are harmful or dangerous for children.

SERPICO THE NARC

Serpico is finally wounded while attempting to break into an apartment of a dope dealer, although his sworn duty is to protect the rights of citizens. The explanation, of course, is that selling narcotics is prohibited by law, and although he has sworn to protect the rights of individuals, Serpico has also sworn to uphold the law. In this instance, as elsewhere, when the two are contradictory, he chooses the latter. His participation on the narcotics squad itself demonstrates Serpico’s overriding loyalty to the law.

But prohibiting the sale of narcotics invariably increases the purchase price, thereby making it difficult for addicts to obtain the drugs. Consequently, they must commit greater and greater crimes in order to obtain the necessary money. By prohibiting the sale of narcotics, the citizenry thus becomes endangered. To enforce that prohibition, as Serpico does, is to regard the protection of the law over that of the citizens.

SERPICO AND COOPING

Given that much of what the policeman is required to do is injurious to the general public, it follows that the less active the policeman is, the less injurious he will be to the public at large. The majority of policemen, perhaps sensing this, act so as to save the public from harm, i.e., they shun their duties.

Instead of being up and about, interfering with the rights of the people, many policemen choose the honorable way out—they coop. Cooping (sleeping in some out-of-the-way place while on duty) was a situation which enraged Serpico. In the finest tradition of the busybody who insists upon running other people’s lives, Serpico insisted upon being out on the streets at all hours, stopping a prostitute here, ambushing a gambler there, harassing drug merchants everywhere.

It is, of course, impossible to deny that Serpico was also a force for good. He did, after all, hunt down rapists, muggers, robbers, thieves, murderers, and destroyers of the peace. Moreover, he carried out his duties in an enormously imaginative way. Disguised as a Hasidic Jew, a hippie, a slaughterhouse worker, a businessman, a drug addict, he prowled the city streets and unearthed its secrets as none of his fellow police officers—dressed in suits, ties, trenchcoats, black shoes, and white socks—could. But, the extent to which Serpico was able to achieve these accomplishments was the extent to which he was willing to step outside the realm of law and order.

Take the case of a young rapist. Serpico stopped a rape in progress, in spite of the opposition of his police partner, who objected to investigating the suspicious noises—on the grounds that they were taking place out of the area which he and Serpico were assigned to patrol. Oblivious to such specious reasoning, Serpico insisted upon an investigation. He was able to capture only one of the three rapists. When he brought him to the station house, Serpico was dismayed at the brutal (and ineffective) treatment to which the rapist was subjected. When the prisoner was about to be transferred to another location, Serpico brought him a cup of coffee, and talked kindly to him for several minutes. By using gentle persuasion he was able to unearth the names of the rapist’s two accomplices.

Serpico then encountered the full pattern of bureaucratic red tape of the police department. He located the accomplices but, upon phoning his precinct commander to report on their whereabouts, was told that the detective assigned to the case was on vacation. The commanding officer insisted that Serpico not arrest the accomplices, even though he had them under surveillance from the phone booth. Serpico again disobeyed the lawful order from his commanding officer, and arrested the two men. (When he brought them to the station house he was told, by the angry commander, that he would not be given credit for the arrests—an appropriate ending to the story.)

It is instances such as this one which have made Serpico an all-time hero, and which account for the massive popularity of the book and movie. But this illustration also exposes the basic contradiction in Serpico’s character. His attacks on prostitutes, gamblers, and drug sellers, all of whom were engaged in voluntary acts between mutually consenting adults, reveal his absolute devotion to the law. His boyhood dream of being a policeman, it will be remembered, was in terms of upholding the law. However, in the case of the rapist, Serpico does the good deed only because he is willing to violate the law. And in every case where his behavior can be considered heroic, the same principle of action is present.

In considering Serpico’s battle against the other, “normal” policemen (the ones he considers corrupt), there are two types of cops. There are those who refuse to harass consenting adults engaging in voluntary though illegal activities, and who accept money from the individuals engaged in such activities; and there are those who demand money from these individuals for allowing them to engage in these activities.

In the first example, assuming the activities in question are legitimate, even though prohibited by law, it would seem perfectly proper to accept money for allowing them. The acceptance of money cannot be logically distinguished from the acceptance of a gift, and the mere acceptance of a gift is not illegitimate.

There are, however, some who take a contrary position by stating that exceptions cannot be made even in the case of ill-conceived laws; that “mere” individuals should not be free to pick and choose, but must simply obey the law. Allowing the law to be broken is necessarily evil, both in itself and because if taken as a precedent, it leads to chaos.

But it is difficult to countenance the notion that breaking the law is necessarily evil. Indeed, if the Nuremberg Trials have taught us anything, it is the diametric opposite of this view. The lesson of the Trials is that some laws are in and of themselves evil, and to obey them is wrong. It is equally difficult to understand the notion that selective law breaking establishes a precedent which ultimately leads to chaos. The only precedent such an action establishes is that illegitimate laws may be disobeyed. This does not imply chaos and arbitrary murder. It implies morality. Had such a precedent been firmly established at the time the Nazis came to power, concentration camp guards might have refused to obey lawful orders to murder hapless victims.

Finally, the notion that no “mere” individual should be free to pick and choose which law he will obey is nonsense. “Mere” individuals are all we have.

In conclusion, since lawbreaking can, on occasion, be legitimate, policemen who allow it are on occasion acting quite properly. Serpico’s attacks upon such officers were, therefore, quite unwarranted.

Now consider the second kind of police officer condemned by Serpico—those who did not simply allow illegal activities, or accept money when offered, but demanded payment from citizens. The dictionary calls this extortion, “to draw from by force or compulsion; to wrest or wring from by physical force, violence, threats, misuse of authority, or by any illegal means; to exact money from, as conquerers extort contributions from the vanquished.” Extortion is usually considered contemptible, and this evaluation is acceptable. However, does this imply approval of Serpico’s attacks on the policemen involved in extortion? No, for Serpico’s role was even worse than extortion! Consider four different ways a policeman may react to behavior which is illegal but perfectly moral. He may (1) ignore it, (2) accept money for ignoring it, (3) demand money for ignoring it (extortion), or (4) stop it.

Of the four possible reactions, the fourth is the least desirable, for it alone absolutely prohibits a moral activity—just because it happens to be illegal.

Had Serpico been a guard in a Nazi concentration camp, he would have felt it his duty to follow his orders to torture prisoners—as would all others who consider “law and order” the primary value. If he had consistently maintained his position, he would also have felt constrained to root out “corruption” in the camp by turning in those among his fellow officers who (1) refused to follow orders, (2) refused to follow orders and accepted payment from the prisoners, or (3) refused to follow orders and demanded payment (extortion). True, it is immoral to extort money from prisoners for not torturing them; but surely it is worse to not take their money—and instead, to obey orders and torture them.