One dogma of police ethics: gratuities and the "democratic ethos" of policing.
One view about police gratuities that has acquired the status of ethical dogma is that their acceptance violates policing's "democratic ethos." This position was first expressed in 1985 by Michael Feldberg, (1) and has become one of the least-contested arguments against police gratuities. I believe the argument to be both highly original for its time, and well-intentioned, but also a victim of its own significant intuitive appeal. That Feldberg's argument has this appeal has meant that it has not been analytically parsed out to reveal its moving parts and assumptions. I will argue that when we do this, we find that the "democratic ethos" argument makes several important assumptions that are worth examining closely.
I will consider how the implied reasoning behind Feldberg's arguments might be more systematically restated, and how it responds to a variety of critiques as a result. I believe that some of the challenges it faces are serious. Nonetheless, police gratuities remain problematic. I will offer an alternative, prudential rationale for prohibiting their acceptance, but conclude by suggesting that, to accord with both the philosophy of community policing and the tightly-held sensibilities of many police officers, the acceptance of gratuities of de minimis value be permitted provided that officers are thoroughly and effectively trained in the potential hazards of accepting them.
The Narrow and Broad Conceptions of a Democratic Ethos
The democratic ethos argument can be interpreted narrowly or broadly. The narrow conception does a lot of work, but it does it in a wide range of cases that are not likely to be very controversial, and so I consider it more briefly than the broad conception. This conception entails that it is ethically wrong for a person to intentionally offer the police gratuities in order to get either enhanced service in the form of their increased presence or a pass on minor violations that might otherwise be enforced, such as not ticketing the double-parked customers of the store that routinely offers the gratuity. In cases such as these, Feldberg correctly asserts that "bribes and payoffs serve precisely the same function as gratuities: they are rewards to the officer for his or her willingness to perform--or not perform--duties according to the wishes of the payer." (2) For example, it is wrong for a cafe owner to entice police officers to her shop by offering them free coffee and pastries in the hope that these officers will not issue tickets to double-parked customers who run into her store to pick up a few items. As a police officer working in crime-ridden areas in Brooklyn, I have been offered discounted food by business owners and frankly told that "it's great to see police officers in here. It lets criminals know that this is a place not to mess around with." To accept gratuities offered with this rationale would violate a democratic ethos because police resources are a social good paid for from the common purse of a democratic government. People should not be able to garner additional service because they have the resources to pay a surcharge in the form of gratuities.
It is even more serious an ethical transgression to overlook minor violations of the law because one feels indebted to the giver of a gratuity. It is true that the violations we most often think of are indeed the ones over which officers have substantial discretion, such as parking and moving violations. If an officer accepts discounted food or free beverages from a shopowner, this introduces two potential problems. One of them is the simple one of a feeling of indebtedness to the person who gives you things for free, along the lines of the maxim that "there is no such thing as a free lunch." The other problem is that the actual giving of a gratuity--the act of proffering something to eat or drink--is only one small component of the exchange that actually takes place. The gratuity is the token that gains admission to a realm of friendship, conversation, and closeness. With the repeated giving of gratuities comes a relationship with a proprietor that naturally makes the police officer disinclined to make problems for him; over cups of coffee and food, the relationship between the two will grow to be friendly and informal. Some of the problems that the officer will grow disinclined to make might include citing his customers for violations, or giving a break to the owner and his immediate family when they are stopped for traffic violations. This latter problem is also the moral hazard of community policing, which encourages the same type of relationship between the police and citizens that is fostered by the convivial atmosphere of gratuity-giving.
The narrow conception is less philosophically interesting because it is so difficult to disagree with. It is hard to counter the idea that if a system to distribute a public good is paid for collectively, then no person should have additional access to this vital good through a private, ad hoc surcharge system that utilizes the very same public employees normally used to obtain the good, and while they are still on the public clock at that. If these businesses wanted to enhance their safety by hiring private security guards or off-duty police officers in addition to receiving the fairly-distributed services of on-duty officers, then that would be a different matter entirely. On the other hand, few people, police officers among them, would defend the shop owner who offers gratuities to the police to get better protection than others, where the police officers know that this is precisely what is wanted from them and they give it anyway. The narrow conception takes place in an environment rife with official misconduct borne of ethically troublesome acts and omissions that would still be wrong even if they were not caused by the giving of gratuities. Indeed, they would be wrong in and of themselves. Because the narrow conception is wed so closely to these troublesome acts, it relies on their force to accomplish most of its work. Police officers who accept gratuities in this context may do so because they rationalize that the harms are small, or because they have become inured to the practice over time by a police culture that may encourage accepting these gratuities and that downplays its negative effects. It is true, after all, that these effects are relatively small ones; Feldberg himself admits that "small vices have relatively small effects," (3) and issuing parking tickets is, if anything, the bane of a police officer's career rather than its centerpiece. Nonetheless, accepting them when they yield these consequences is ethically wrong. About this Feldberg and I agree, and it is where the democratic ethos argument is at its best.
Of greater philosophical interest, however, are cases in which the shopowner gives gratuities only out of civic friendship or appreciation and not to gain a benefit from enhanced service. As a result, police services will still be distributed in a manner that has nothing to do with need, but not for such a plainly wrong reason as the naked desire to buy additional police services for the price of that gratuity.
Still, what does this ethos, as expressed, have to do with democracy? For, presumably, the Hashemite Kingdom of Jordan faces a similar problem when it comes to gratuities, and it is free to invoke the same argument as Feldberg without calling itself a democracy because of it. (4) Police services, as Feldberg conceives of them, are simply distributed via a certain type of economic scheme that may or may not be found in a democracy. When he leads the seminar participants referred to in his article toward his vision of a democratic ethos, Feldberg does so by first presenting the alternative of a capitalist "fee-for-service" model for delivering police services. The model was a fact of life in 18th-century England and America, where citizens "received only the protection, detection, and restitution of stolen property that they paid for directly." (5) The seminar participants found this scheme troublesome because it meant that their "personal value systems would be altered in negative ways." (6) "Potentially," Feldberg argued, "an officer's oath to uphold the law might become subordinate to his desire to please his best-paying clients." (7)
It is clear, then, that Feldberg's path to a democratic ethos first begins with considering an economic scheme for distributing a social good, but it is one that has clearly problematic moral implications. When he rejects this fee-for-service model, which is explicitly economic, we have little choice but to see his democratic ethos argument as an alternative economic scheme. In fact, the closest that Feldberg comes to an explicit definition of his democratic ethos is when he surmises how police officers view themselves as instruments of a type of distributive justice, and he specifies an economic model that is based in need alone. Police officers, he says.
seem to feel that they are individual mechanisms for the equitable distribution of public services, benefits and security, available according to need rather than to ability to pay. This democratic ethos underlies the way in which police officers choose to distribute their time and efforts, and if it did not police administrators would have to limit--or attempt to limit--individual officer discretion far more than they currently do. (8)
For lack of a better term, and with the worry that it is often seen as a dirty word in the United States, Feldberg actually sees the distribution of police services as driven by what could just as easily be a socialist as a democratic ethos. Socialism, after all, refers to the cooperative control of the production and distribution of certain goods, in contrast to their production under the competitive circumstances that a fee-for-service model suggests. There is nothing wrong with this that I can see. Indeed, democracies can have socialist programs of distribution for public goods, but access to a service based on need and irrespective of ability to pay is hardly exclusive to a democracy. It may be distinctive of a democracy, but no more so than of other political arrangements. One need only substitute "health care" for "policing" to place this concept on more familiar ground. Much of the debate about health care in the early Clinton administration focused on whether we should distribute it in the way that Feldberg wants us to continue distributing police resources and in the way we presently distribute military protection and public education. If Feldberg's democratic ethos is actually also a socialist ethos, it just happens to be one that many good democracies have agreed to embody in their policing policies. Although President Clinton's reforms ultimately met defeat, policing is presently considered to be too basic and important a service to be distributed in any other manner. Acknowledging that the roots of the democratic ethos argument are not unique to a democracy is important because when the argument is challenged, we must try to decipher what defenses a "democratic ethos" as Feldberg conceives of it might put forward. It may turn out to proffer the same defenses as any program of social welfare. More minimally, Feldberg may conceive of police forces as the descendents of Robert Nozick's libertarian protective associations, which are justified only because they protect the rights and freedoms of individuals, but do not intrude on the operation of society any more than is absolutely necessary to accomplish this limited goal. (9) I do not think, however, that Feldberg would call upon libertarian theory to justify his democratic ethos, because he likely envisions policing as a full-service enterprise that offers much more than protection against violations of our rights.
Regardless of how appropriately it is labeled "democratic" to distinguish it from other types of political and economic arrangements, the broad construal of the democratic ethos is of much greater interest to both philosophers and the police, because it gets to the fundamental root of the debate on gratuities. It concerns all cases of gratuity-giving, including those in which the practice of giving small gratuities as tokens of friendship or appreciation still has the effect of luring more police officers to one location rather than another. Feldberg insists that most merchants want a modicum of private security, but he realizes that "the great majority of gratuities, such as free coffee, half priced meals, and other discounts come from basically honest merchants who attach no strings or expectations to the offering." (10) Edwin Delattre, who is often cited for his "clearly outspoken" views against gratuities, (11) still acknowledges that small gratuities can be offered and accepted by citizens and the police on fully innocent terms. (12)
The problem is that in order for such a transaction to take place, the police must be in a particular location at a particular time. Consider, for example, the shop that offers half-priced coffee to the police, and as a result sees several visits from them a day. If the shop owner was raised with a deep-seated civic sense and thinks of police officers as heroes, perhaps she is simply trying to offer comfort to them and express sincere appreciation for the work that they perform. Nonetheless, it is certain that this shop will enjoy a level of enhanced security not afforded to others in the area. After all, police officers are unique in that they render two vital services--deterrence and rapid response to crises--simply by being somewhere, whether they are on break or not. (13) If a person does not specifically seek to gain enhanced services by privately paying for them, and a police officer does not accept a gratuity while viewing it as a form of compensation for her services, then the person who maintains the exchange is still unethical has little choice but to argue that it is so because it has violated some underlying principle of distributive justice.
Some might counter that Feldberg's argument concerns itself only with distributions that are skewed by the acceptance of gratuities, and he invokes the democratic ethos only to examine this limited range of cases. He cannot limit his argument to gratuities in this manner, however, and still plausibly invoke the idea of a democratic ethos. The problem with distribution according to ability to pay (where gratuities are a form of payment) is not the idea of payment in and of itself. In fact, anyone who pays taxes to her municipality pays for policing to some degree. The problem with this arrangement is that the ability to pay is one of a host of morally arbitrary factors when it comes to receiving police services. It might be fine to distribute police services according to ability to pay if, theoretically, all members of society possessed adequate buying power to pay for the full range of services, and if this buying power afforded them all a satisfactory level of policing. The problem with distribution according to income in practice is that people's ability to pay varies wildly, for very arbitrary reasons, and these reasons are morally irrelevant when it comes to deciding whether someone is entitled to something as important as police services. It may cost hundreds of dollars to fuel the police helicopter that searches the rail yards for the missing daughter of an indigent family, but that does nothing to diminish the family's entitlement to a thorough search for their missing child. The true foe of the democratic ethos is not gratuities alone, or the results of a skewed income distribution in society, but any factor that is morally irrelevant yet influences how police services are distributed. A democratic ethos is not satisfied merely because no gratuities for service are exchanged, but instead only if people have access to these services acceptably free from morally arbitrary factors that might skew it. The ability to pay in the form of gratuities is simply one of these arbitrary factors, albeit one that is of great interest to Feldberg. This broad conception is where we see the meat and the appeal of Feldberg's argument: that regardless of the intentions of those involved, accepting gratuities is unethical because it violates the deep-seated principles of distributive justice embraced by a democracy. Feldberg is in fact explicit in creating this nexus between distributive justice and the concept of his democratic ethos, saying that "I ... hold firmly to the principle that gratuities are simply an inducement to a police officer to distribute the benefit of his presence disproportionately to some taxpayers and not to others, a practice that undermines the democratic ethos of public service." (14) It is the disproportionality that is his problem, and police accepting gratuities is what brings this problem about. He also concludes his argument by reasserting its distributive roots when he states that "Insofar as gratuities skew the distribution of police services, they cannot be reconciled with a democratic ethos of policing." (15) An ethos may be defined as "the distinguishing character, sentiment, moral nature, or guiding beliefs of a person, group, or institution," (16) but for Feldberg, fulfilling the requirements of his ethos is accomplished by adhering to a scheme of distribution.
Feldberg seems to focus his application of a democratic ethos even more narrowly by concerning himself only with people who offer gratuities as a specific inducement to skew the distribution of police resources. Still, as one might surmise from the approach that was taken above, inducements themselves are not the primary issue here; rather, the issue is that inducements such as gratuities are morally arbitrary, along with other factors as well. If this is true, then the strength of Feldberg's argument will be determined not only by how well it works for gratuities alone, but also by how well it works as a comprehensive account of how police services ought to be distributed in the face of the several factors that may skew it. Gratuities given as inducements may skew the results, but gratuities given not as inducements but with completely honest intentions may also have the same effect. Feldberg briefly considers such a case, though it is not his direct focus, and he seems equally content to apply the democratic ethos to it. When police officers accept small gratuities such as a free cup of coffee, and do so with honest intentions, Feldberg is sympathetic to them, but unambiguous about the effect: "taking gratuities is not the same as corruption, but a 'cousin' to it, insofar as both have an equivalent effect on this distribution of police resources." (17) Once a person accepts this democratic ethos, it seems that the devil is in the details of just how to distribute police services in a manner that is true to its requirements in the face of a range of challenges. These challenges include not only gratuities offered as inducements, but those offered for honest reasons, and any other arbitrary factor that threatens to skew the distribution away from need.
Although the actual mechanism of distribution that would satisfy the requirements of his ethos is not spelled out by Feldberg and has not yet been clarified by others, this has done little to diminish the argument's appeal. For this reason, it has been often cited in arguments even against gratuities that are given and received with the best intentions simply because they skew the distribution of resources. Here, I will continue to use the term "democratic ethos" as a shorthand of choice, recognizing that at certain times I will be perpetuating the tradition of being vague about just what the term means. Where it is important to the argument, I will take the extra step of being explicit.
Gratuities versus Quality: Eating at Lento's
Some important concerns about the "democratic ethos" argument are brought to light by considering a case in which the distribution of police resources is significantly skewed not by the acceptance of gratuities, but by a completely legal yet equally arbitrary concern: simple consumer preference. As it turns out, the police officers assigned to the 49th Precinct find great respite in their lunch hour. When they take their assigned breaks, they have the opportunity to relax, eat a nice meal, and perhaps have a cup of coffee in a comfortable seat instead of in a moving car.
When it comes to restaurants, all the officers prefer Lento's. The owner, Vincent Lento, takes great pride in the food his chefs prepare and uses only the freshest ingredients. The range of food on his menu is impressive, and his place is known throughout the force for the best tasting food in the precinct. Mr. Lento and his staff are always welcoming, and they make an effort to get to know all of their customers by name. For these reasons, you will almost always find a police car parked in front of Lento's, its officers inside eating.
One day, the commander of the 49th precinct calls his supervisors into his office for a meeting. They take seats, and he looks them over.
"I called you here," he says, "because the ethics board has received a complaint about the precinct. A man purported to be a 'professional ethicist' has complained in his weekly newspaper column that the officers in this precinct are spending too much time eating at Lento's. Other citizens have echoed his complaint by making calls to the precinct."
The union delegate for the Sergeants' Benevolent Association looks confused. "Why is this a problem, boss?" he asks.
"It's a problem because this person thinks that we're playing favorites," the commander responds. "We always have two cops in Lento's, but in no other restaurant. Lento's never gets robbed and never has a problem. I have done the research, and Lento's address has not been the subject of a 911 call for the last three years, either inside or in front of it. The ethicist thinks that we are not distributing our resources according to the democratic ethos that we ought to embody. It seems that Lento's is the safest place in town next to the precinct stationhouse itself."
"Boss," the delegate responds, "Aren't we allowed an hour for meal?"
"Yes, barring exigent circumstances, as specified in our police department's guide to patrol operations," the commander answers.
"So why can't we all choose to eat at Lento's? We love the sense of community there, and the food is truly excellent. The variety ensures we never tire of it, and we feel comfortable there. It's quite a morale booster."
"The complainants wondered if you were getting a discount, and if you guys were doing favors of some sort in exchange for eating there."
"Well you know that's not true, you eat there often yourself. Vinny charges us the same reasonable prices he charges everyone else, and we pay every cent of the bill. He knows not to ask us for favors, because he values our patronage, and he doesn't want to put us in an awkward position. He dreads the possibility of being put on the off-limits list because of something like giving prohibited gratuities."
"So," the commander says, "it seems as if Lento's is getting a disproportionate amount of police presence compared to other eating places because he serves the best food, at a good price, in a comfortable atmosphere?"
"Yes," the delegate says, "this is exactly what I am saying. Even if we were to duck into Lento's for a to-go cup of his espresso when we're not on meal break, we'd still have this problem. We don't accept gratuities from Vinny, but I guess the result of where we spend our time might as well be the same."
We will call this the Gourmand Case. I am curious to know what individuals who feel that police officers are not acting ethically when they patronize a business principally because it is in the habit of giving them gratuities would think of it. Even though the delicious food is provided for all Lento's patrons and gratuities are usually given only to the police and selected others, the former has precisely the same effect on the distribution of police resources: it skews this distribution away from what a democratic ethos would seem to require of it. In a democracy that disburses police resources based on need, we do not want to think that a restaurateur was robbed only because his pesto sauce was not savory enough to lure the police away from Lento's for lunch.
It is also clear that, if nothing else, there is an appearance of impropriety in the Gourmand Case. This is an important fact, and it will be dealt with later. In the meantime, the case is useful for looking at Feldberg's argument, which is not about the appearance of impropriety, but of an actual, unfair distribution of police resources. It is clear that when a police officer chooses to patronize a restaurant because it offers her meals free or at a reduced price, she is allowing a factor that runs against requirements of a democratic ethos to skew the distribution of discretionary police resources. As noted earlier, policing is a peculiar profession in that one of its valuable commodities is the mere presence of the practitioner. Police presence is a finite resource, and, at least when a police officer is not on break, most agree that it should be distributed according to some indication of need, even if determining need is a very complex and somewhat subjective process. This need could come in the form of calls for service by citizens, or it could be discerned through the study of crime trends. Once these needs are identified and addressed, the remaining resources are often deployed in random patterns of patrol or in locations that are likely to be the next best bets for crime and disorder apart from the immediately obvious ones.
When an officers eats, however, he continues to render police service by default through his presence, but at a location determined by factors that have nothing to do with need, equity, or just distribution. These factors include the amount of money in the officer's pocket, proximity to a given restaurant, the type of food the officer is in the mood for, and the quality of the meals and service rendered. It goes without saying that were analogous factors to be used when an officer chose which locations to patrol at times other than his meal hour, he would at best be distributing his resources very inefficiently, or at worst engaging in dangerous acts of caprice. What if officers were to concentrate their patrols in areas that had the nicest parks, the most pleasant architecture, the friendliest populace, and the best-looking members of the attractive sex? Officers who behaved this way would be acting unethically and unprofessionally. At the same time, food that is inexpensive due to discounts and food that is tasty due to the talents of a chef might also seem on their face to constitute inappropriate reasons for some places to get more police resources than others.
An appropriate response to this problem depends on how one frames the underlying question of how to embody the democratic ethos of a need-based distribution. It is possible to stipulate that if the desired end result of police policy is to distribute resources in proportion to need, then a consequentialist approach may be invoked to craft policies that bring this end about. The question is about what arrangement of rules and regulations brings us closest to the need-based distribution that it implies.
If this is the case, there is no immediate ethical difference between tasty food and food given as a gratuity, because they both work against the declared end of a need-based distribution. Whether gratuities are allowed or not, and whether Lento's can maintain its full-priced, quality-based stranglehold on police business, becomes the subject of calculations about things such as the negative effects of the appearance of impropriety in both cases, and the personal and professional preferences of the police officers themselves. It might even be possible to argue that police officers relinquish the requirement of having their own personal eating preferences accounted for when policies are made. If it could be shown that treating them this way in fact leads to the greatest benefit for society, then the consequentialist would have a legitimate claim to do just that. As a matter of practice, police officers routinely relinquish their own preferences while they work; they do not patrol only where they would like to, but where they deliver needed benefits. This would serve to extend this requirement to their meal time as well.
Given this approach, and all other things being equal, Feldberg's broad argument would entail that an officer cannot ethically patronize a particular restaurant simply because it is one that she prefers. It must first be determined if the consequentialist demand to maximize this particular conception of distributive justice allows for this preference, if it is even to be accounted for in the first place. It is true that Feldberg does not specifically say that a skewed distribution borne of preference is wrong, but only one that is borne of accepting gratuities. Still, you cannot easily adopt a maximizing approach to a democratic ethos without also confronting the problem of a skewed distribution arising from police officers' consumer preferences.
There are other ways, however, to satisfy a democratic ethos. Consequentialism based in preference satisfaction is not without its critics. The approach allows for a wide range of practices to be implemented or suppressed simply because they work for or against a desired goal. Perhaps as a community we hold certain values as too important to subject them to being trumped by such a simple preference satisfaction mechanism. (18) As an alternative, the democratic ethos can be construed to entail values, rights, and responsibilities that are worth pursuing, but that must also be balanced against competing ones. Policies should reflect this fact. In light of the Gourmand Case, it might be conceded that on her allotted meal hour a police officer has the right to choose from among the food choices that are offered equally to all citizens. Lento's, after all, makes its food available to all potential consumers at the same price. It is perfectly reasonable, therefore, to allow police officers to make the same consumer choices as all other potential customers when they are doing something as basic and unavoidable to being a human being as eating. The fact that an establishment makes delicious food is a perfectly acceptable reason for any customer to choose one business over another, no matter who she is, and even if patronage across restaurants is skewed as a result. Who would begrudge cops for doing something as basic and good-natured as paying full-price for the good food that they prefer? In contrast, the argument goes, gratuities are not available to people generally, and therefore "artificially" skew the distribution of resources, with a negative effect.
Still, the philosopher who argues this position would have to further explain why the fact that gratuities are "artificial" is more important than the fact that both gratuities and taste preferences are "arbitrary" when it comes to the reason why one business receives more police services than another. As Mark Sagoff has argued, "It may be good in itself that certain preferences are satisfied, namely, preferences that are good in themselves. Ordinary consumer preferences, however, are usually not regarded as intrinsically good but as arbitrary from a moral point of view. People should be free to try to satisfy these preferences, to be sure, but why should it be an intrinsically good thing that they satisfy them? Why should it be a goal of public policy ... to satisfy that preference?" (19) Furthermore, why should it be a goal of public policy to satisfy that preference when the resulting distribution of a public good is akin to that of accepting gratuities? Sagoff's argument asks us to consider what is so inherently worthy about allowing police officers to eat the food that they prefer to eat while on duty. To allow preference satisfaction to interfere with an equitable distribution of police services suggests that there is indeed something comparably important about it. It is not immediately clear, however, what that thing is.
This perspective raises a set of questions that must be answered before we can draw an ethical line between eating food that is tasty and food that is offered as a gratuity: Is it acceptable to have a skewed distribution because the source of the skewing is a benign one such as consumer preference? How important is it that officers get to satisfy their preference for eating tasty food if the results skew the distribution of police services in a manner that approximates the skewing that stems from accepting gratuities? How much of a deleterious effect does the resulting skew have? Which concern should prevail? One could also go as far as to suggest that if the consumer preferences stemming from taste ought to carry weight in a debate about distributive justice, then an officer's preference for accepting benign gratuities might also count for something as well. As far as the debate has been framed thus far, I will suggest that neither should.
People seem to be comfortable advancing the principle that when the skewing comes from gratuities, the requirements of a fair distribution should prevail. Considering that taste preferences can easily produce a skew of the same magnitude, those who think that exercising taste preferences is acceptable here are according an importance to them that supersedes the importance of achieving the goal of a distribution of police resources based on need alone. This would imply that the democratic ethos is only partially about proportionate distributions, but also about why skewed distributions are skewed. They would have to maintain that skewed distributions are acceptable provided that the reason for the skewing is a type of preference fulfillment that is available to everyone. The fact that they are based on arbitrary considerations of taste is simply not a significant enough factor to override this. It also seems highly relevant that police officers in the Gourmand Case pay for their own meals, so it would be wrong to frustrate their preferences and in stride force them to pay for their frustration as well. This is to conflate two concerns, however. That it is wrong to be made to pay for your own frustration is one problem, and that your preferences are not important enough to be honored in light of a conflicting duty you have is another. We can eliminate the issue of payment by stipulating that if justice requires that police officers' eating preferences be suppressed, then justice must also foot the bill for the alternative. This factor is indirectly acknowledged in the practice of allowing police officers in New York City to eat at selected locations outside of their precincts if their commander feels there is not a suitable selection of restaurants within her command. (20) When a police officer spends his money to eat on duty, he should be entitled to spend it to his satisfaction in a manner available to all citizens, within reason.
I am concerned about this because, as reasonable an activity as eating may be, police officers are not just anyone. They are people who are performing a vital function, and even when they eat they must be very careful about rendering the service that is provided by their mere presence in an unfair manner. The average consumer is completely free to satisfy her preferences only because she is not burdened with such a task at the time. As agents of public policy the calculations for the police officer are more complex. When an officer chooses a place to eat based on personal preference, police services are being rendered based on criteria that have nothing to do with the just and equitable distribution of a social good. The arbitrariness of this taste preference might have an ethical relevance that could override the fact that it is a natural factor for all consumers, unlike the artificial practice of accepting gratuities. Arbitrariness, including that of taste, is an enduring problem of distributive justice; the artificiality of a gratuity is simply an artifact of a particular social arrangement at a particular time. The possibility of regulating a police officer's on-duty meal options should not be taken off the table only because she has taste preferences and it is usually desirable to allow people to satisfy such preferences. She will be completely free to do so when she is not on-duty; otherwise the effects of her preference satisfaction on distributive justice should be taken seriously.
A way out of this is to argue that the skew that comes from exercising preferences is not that significant and it does not therefore meaningfully undermine the requirements of distributive justice; for this reason we might as well allow police officers to enjoy the benefits of preference satisfaction when they eat. I take up this line of argument as worthwhile later on, but I think it is problematic here. If one accepts it, then by arguing that the skew resulting from preference fulfillment is not that important, one must also accept that the skew resulting from accepting gratuities is of an equally diminished importance, and the transgression of accepting gratuities is therefore a small one.
Although the Gourmand Case is a thought experiment, it is not a fantasy, either: veteran patrol officers will relate that, in many inner-city precincts, satisfactory meal locations are limited to a small handful of places that officers have grown to trust and prefer. Meanwhile, many others will never or hardly ever be visited by officers unless they are specifically called to the location because of an incident.
It is therefore not a foregone conclusion that distributive justice is concerned with whether a clear ethical line can be drawn between eating preferences that stem from gratuities and those that stem from taste. If a person thinks that there is such a line because she is satisfied by the argument that it is okay for police officers to exercise a preference in where they eat as long as the basis for the preference is lawful and available to everyone, the issue is settled. We may, for the moment, assume that the problem presented by the Gourmand Case is a real one, and consider amending police policies accordingly. This would provide for the following menu of options for patrol officers:
(1) Eating at restaurants according to a random distribution.
(2) Eating only quickly obtained take-out meals or food from home in the police car, parking the car in randomized locations.
(3) Taking the same course as in (2), but parking the car at locations determined to be crime-prone.
(4) Always eating at the precinct stationhouse.
It seems that the third choice represents the optimal use of police resources, given that restaurants are not as likely to provide a venue for crimes as the street comers and alleyways of the poorer neighborhoods in a precinct. In any event, these areas could not likely support a restaurant at which police officers would prefer to eat. Notice also that I have not opted for the fourth possibility--eating at the precinct stationhouse. Not offered here as a joke, this option was implemented in a shire headquarters in Britain in the 1970s, precisely to eliminate the deleterious effects of officers accepting gratuities while taking meals in the field. (21) Although that would serve to avoid a disproportionate police presence in any one location, it would also have the effect of cutting off one's nose to spite one's face: were officers forced to take meals at the stationhouse, no location would benefit from their presence. "That's one form of democratizing police service delivery," Richard Kania suggests, "reduce it equally to all." (22) For this reason, it is not preferable to the option of police officers eating somewhere in the field, unless the precinct stationhouse is somehow optimally located within its jurisdiction to reduce response time, or is located in a more crime-ridden part of the precinct.
Some might claim that eating at the stationhouse is a reasonable option in a precinct with a low level of crime, because in that situation officer omnipresence would not be the crucial resource that it is in more dangerous neighborhoods. If there exists a precinct in which there is no appreciable loss of deterrence when officers leave the field to eat at the stationhouse, I suppose it would be fine for them to eat at places that offer gratuities as well; the person offering them would apparently not be gaining much, and other people would not seem to be losing out. I do not find this a compelling reason to allow gratuities in cases such as these, but I will hold off on my reason for saying this until we have fully considered the line of reasoning at work here. If a just distribution is the driving concern in this case, then what is at stake in this very safe neighborhood might be too small to seriously concern ourselves with.
So, if we are to take the Feldberg's democratic ethos objection seriously, it might well be best honored by instructing police officers to take their meals at different locations over time, in proportion to the levels of crime and disorder in and around such locations. This distribution is akin to what Feldberg envisions as a possible application of his ethos, saying that "In order to be truly fair to all taxpaying businesses in the community, I (somewhat disingenuously) suggest that all police officers eat their meals in a different, randomly selected restaurant every shift." (23) He is probably "somewhat disingenuous" because he is trying to be provocative in this case. Still, it may seem that the most appropriate application of his ethos would require this method of selecting locations for police officers to eat at. However, I shall suggest that if one follows it to its conclusion and stands by the results, it is very difficult to take seriously.
The Eclectic Vendor Case
The various amendments proposed above--such as eating take-out food in cars positioned in crime-ridden areas--would not solve what I have framed as Feldberg's underlying problem of distribution. If one accepts that Feldberg's ethos can be fulfilled only by a distribution of police resources free from arbitrary driving forces regardless of whether their origin is benign or malevolent, other problems arise. Continuing the story of the 49th Precinct can illustrate this. As it turns out, the commander of the 49th precinct's own solution to the problem of distributing police resources was not to require officers to eat in their cars at all times. Instead, it was to mandate that officers eat at the restaurants with the greatest need for police presence, and when it was impossible to distinguish between two of them, to use a method of random selection.
The commander announced this plan with a press release, and made it well-known to the local newspapers that as of the coming week, his officers would no longer exclusively patronize Lento's merely because it served delicious food at good prices. "From now on" the commander declared, "we will distribute the valuable good of police presence according to need and need alone." To this end, he was able to secure a stipend from the city government that would fund a pilot program to reimburse officers for the price of their meals; this was in acknowledgement of the fact that it is one thing to override a police officer's consumer preference for the right reasons, and another to make her spend her own money on the food you are thereby forcing her to eat.
An analysis of need as reflected by crime patterns showed that officers would be spending most of their meal hours eating in restaurants that were in the worst areas of town, where they were most likely to encounter people they had either arrested or whose homes they had visited to take care of violent disputes, assaults, and angry domestic confrontations. In light of this, many officers feared that they would be unable to relax. Many of the restaurants, though decently run, served the type of food meant to be consumed by people at or around the poverty level: good tasting, but cheap to produce and not always healthy. Still, the commander was adamant about discharging the requirements of a "fair" distribution.
The evening before the program was scheduled to begin, however, a local business owner came to the precinct and requested an audience with the commander. Feeling magnanimous, the commander granted it, and the elderly gentleman came into his office and took a seat.
"I was wondering," the old man said, "when I may expect the police to visit my establishment and spend an hour there from time to time. It would make me feel very safe to have such personal attention."
"Well, let me see," the commander said. "What is the name of your restaurant? If it needs presence, it'll get it, and once crime is down in the worst sectors, we'll spread the meal locations out over a wider range."
"I don't own a restaurant," the man answered.
"Really? Well, then, what type of business do you own?"
"Well," the old man answered, "I sell three things: exotic potting soils, rare breeds of poison ivy, and an assortment of hand-carved meerschaum doorknobs. So when will the police pay me a visit and linger for a while?"
"Well, sir, we have no plans for the police to pay you a visit for no reason. However, if you call for assistance, we will make sure that a patrol car comes as soon as it can. Barring specific calls for service, you can expect to see police officers patrolling your area in proportion to the need for it, based on a careful analysis of that need by my crime analysis section." The commander straightened in his seat; the old man seemed a bit eccentric and he did not want a confrontation in his office.
"This hardly seems fair," the man answered, "because it still allows restaurant owners to enjoy a level of police presence that I will never have, even though I might need it more than they do."
"But the plan we have is for restaurants, not for stores that sell potting soil and poison ivy. Police officers have to eat, and people eat at restaurants, so it's a given that cops will have to go to those places. We can at least try to make the manner in which they go to them comport with their larger duties as the distributors of a vital public good. On the other hand, no police officer would need to buy things like poison ivy while he's on duty, let alone hand-carved doorknobs!"
The man stood up. "Let me see if I understand what you are saying," he responded. "I run a small business that is conducted mostly using cash. One of the reasons I can afford the rent I presently pay for my store is because it's in an area that isn't the safest, and the landlord has offered me an incentive to stay there. I run an honest business, and fear robbery and vandalism as much as the next business owner in a high crime area. Now, some businessmen, who because of fate, luck, personal choice, family connections, and innumerable other factors have ended up in the restaurant industry, get police protection in the form of officers visiting their establishments for an hour at a time. In fact, your recent, publicized, guidelines propose that even restaurant owners who serve food that cops don't like that much, at prices that were not competitive enough to convince them to eat there before, will now benefit from police presence. Why does a person who runs a mediocre restaurant deserve focused police presence more than a person who sells doorknobs? Are not they both equal citizens?"
"Of course they are equal citizens. All law-abiding citizens are equal in the eyes of the police. Still, police have to eat, so this is a problem concerning restaurants, not all businesses in general" the commander said.
"I know police have to eat, and I think that a healthy officer will do his job better than one who is malnourished. I cannot, however, understand why the fact that a police officer has to perform a biological function like any other person bestows on the businesses that happen to facilitate this function the benefit of enhanced police protection. If you are serious about the idea that all residents in a precinct deserve a level of police protection that is commensurate with their need for it, then you must commit to the idea that who ends up with the life of running a restaurant and who ends up selling poison ivy is rather arbitrary. In the way that all people should be equally deserving of service based on their need for it in the eyes of the police, all businesses should, as well. Businesses are merely organized groups of people doing something cooperatively. In fact, whether a person owns a business, raises children, or spends all day at home sitting on her hands is no indication of the degree to which she deserves police resources."
"This is what I think you should do," the man continued. "You should tell those who own businesses that police officers need to utilize for goods or services during their tour that they have been privileged for too long. Their lot in life as owners of restaurants and coffee shops will no longer mean that they alone will be fortunate enough to have police officers visit them for an hour at a time, sometimes for several hours a day, securing the safety and vitality of their enterprises in a way that is not afforded to someone who sells potting soil and doorknobs in the very same precinct. Now, they will have to compete with every person in the precinct--business owner or otherwise--for personal visits. These visits will be, of course, based on need, not on arbitrary distinctions about a business's personal or biological usefulness to police officers. Of course, another option would be to give this skewed presence to no one, and to patrol areas based on crime trends without paying individual attention to any person barring a compelling public interest in doing so, such as to fight crime or provide a government service. Either way, the outcome would be more just than the either the old arrangement or the one you intend to put into place tomorrow."
With that, the man got up and left. Suddenly, it occurred to the commander that perhaps the option of requiring police officers to eat in the stationhouse was more appealing than it was before. He found himself in a situation where he could provide more discretionary police presence to restaurant owners and the businesses around them than every other deserving person in the precinct, simply because some people happened to be fortunate enough to own a restaurant. The other option was that he could deprive everyone of police presence equally. Neither choice was without its manifest problems.
Does the broad conception of the democratic ethos commit us to this logic? Many philosophers--regardless of the particular system of ethics to which they subscribe-agree that a person's lot in life is substantially the product of a natural lottery. Surely, people come to own businesses that are patronized by police officers as arbitrarily as they come to own ones that do not, and in any event, no person starts a business because it will be patronized by police officers--unless, of course, it is a police equipment store.
Apparently, then, changing the way police officers patronize restaurants to eliminate arbitrary outcomes does not address the larger problem of police presence at restaurants versus other businesses being an arbitrary outcome itself. Feldberg does not explicitly acknowledge this, but senses the problem when he states that "to push the logic of this position to the extreme, I also suggest that I would be willing to leave a pot of coffee on my porch if police officers would promise to take their coffee breaks at my house, thereby affording me greater protection from break-ins than [other] individuals." (24) What Feldberg might not have realized is that there is no need for him to leave the coffee on his porch to enter the realm of people who have a claim on an hour of an officer's presence; all he had to do was suggest that food and drink alone do not entitle any person to more presence than a person who simply wants the police to spend time on his porch. If the commander sticks to a democratic ethos rationale for providing coverage to restaurants as planned above, why would he not incorporate poison-ivy salesmen and the housebound elderly into his plan?
As noted earlier, it is possible that police presence is not so important that it should have the defining role for public policy that the commander here allows it to have. This will be entertained at length in a short while, but for Feldberg this response is problematic because it suggests that gratuities may not have as significant an effect on fulfilling the democratic ethos as he thinks they do. In fact, the same considerations that drive the discussion of the Gourmand Case are also at work here, but the Eclectic Vendor case shows that these concerns may be more fundamental than originally thought. They may be deeply entangled in the debate about the role of luck and the natural lottery in what people ought to receive in life. It may be that the vendor's concerns are totally irrelevant because the issue is narrowly limited to an approved, allotted meal break. If one does not view this meal break as inalienable and sacrosanct, however--but instead as a preference that may or may not need to be satisfied given the larger ethical debate and a host of competing concerns--then the concerns of the vendor become much more relevant. Although it does not appear as policy in their instructional manuals, all New York City Police Academy recruits are told on their first day of service that the "meal is a privilege."
Were he to incorporate the vendor's demands, the commander's plan would sink into the realm of the ridiculous. To articulate this better, I will argue that the concerns of the poison-ivy salesman--and maybe also the concerns of others who take issue with distribution of police resources brought about by gratuities or cases such as the Gourmand Case--are based on a fundamental error of political philosophy. The error is that of assuming that a fair and just overall distribution of police services turns decisively on how often (comparatively) a police officer is present at various locations, even if it is to do something biologically necessary, such as eat. I will argue that there are other, more important, distinctive, and sufficient measures of what constitutes a fair and just distribution of police services. Because police officers render one particular type of service simply by being present at a given location, some seem to be making the mistake of saying that a just and satisfactory overall distribution of the range of police services cannot be achieved unless this particular service is carefully regulated at all times to ensure that it is given out based on measures of need alone. I will outline this logic by turning to a more finely-tuned analysis of distributive justice that seems to have the most hope of formally articulating Feldberg's idea of a democratic ethos. Ultimately, I hope to refute its ability to buoy Feldberg's argument.
The Democratic Ethos and the Rawlsian Scheme
As mentioned earlier, the democratic ethos argument does not have the benefit of being rigorously defined. The argument is not a uniquely democratic one, though it is one that a democracy can embrace. Moreover, though their argument is concerned with distributive justice, Feldberg and his followers have not embedded it in any systematic philosophy of distribution. In order to give it the scrutiny it should have, it would be helpful to have a framing theory that would allow us to examine the moving parts of the ethos more closely. One possible framework is that advanced by John Rawls in his work on distributive justice. He stipulates that the principles of justice we use to organize the distributive institutions of our society must be ones that all rational persons would choose to accept if they were to deliberate about them under fair conditions. These conditions would stipulate, among other things, that people would have to endure a sincere commitment to their chosen principles, and "cannot enter into agreements with consequences they cannot accept." (25) In order to enhance the magnitude of this commitment, (26) they would have no knowledge of the probability of their being any particular person in the society they are designing a structure for, in terms of their social position, race, class, family, and natural abilities. They would deliberate under a "veil of ignorance." (27)
Rawls argued that under these conditions rational people would have no alternative but to choose two specific principles by which to organize society. The first principle of justice would be that "each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all;" the second principle would entail that "Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity, and second, they are to be to the greatest benefit of the least advantaged members of society." (28)
Rawls' theory of justice seems to suggest that when a police officer takes her meals at a location that is based primarily on her personal eating preferences due to gratuities or taste, she is violating his second principle of distributive justice as stated above. This second principle, known as the "difference principle," establishes a "maximin" distribution of social goods when it specifies that inequalities are justified only insofar as they benefit the worst off. In other words, for the distribution of primary goods in a society to be just, they must be distributed in a way in which any inequality in the distribution serves to benefit the least well off and the most under-served. These goods include not only basic things such as food and shelter, but also the distribution of access to things such as education, public positions and elected office. Presumably access to policing would be among these goods. This stipulation is known as the "maximin" principle because it has the effect of maximizing the position of the lowest person in society. People would rationally choose this principle, Rawls argued, because while deliberating about the structure of society they would have no idea of their impending place in it, and they would therefore want to ensure that the worst place was still as good a place as possible. In order to ensure that it remained as good as possible over time, people would want to ensure that inequalities in society would serve only to better the worst off. Although many dispute Rawls's justification that rational people deliberating under fair conditions would have no choice but to choose this principle, and there are other serious objections to Rawls's theory, it is still the most prominent one in modern political philosophy, and I believe that no other formulation more accurately captures the nuances of Feldberg's objection to gratuities.
The difference principle would seem to require that police officers distribute their discretionary presence in a way that benefits those who are the least well off in terms of crime and safety. This might take the form of direct visits to the most crime ridden areas, but it could also entail increased presence at a community center or shopping mall that forms the communal anchor of a troubled neighborhood. Giving the business owners and community organizers at such locations an inequality of police presence--even though they may be far from the least advantaged members of the precinct--could have the effect of benefiting the condition of the least well off residents in the area, who would have a safe place to meet and shop as a result. Rawls's difference principle would certainly not, however, seem to justify spending extra time at restaurants that can afford to give things away for free or that simply make good food.
As clear as all this may seem, Rawls would not be sympathetic to this application of his philosophy, and this points to a possible flaw in the reasoning of the democratic ethos argument. The most important endeavor of political philosophy, according to Rawls, is to make sure that the basic structure of society's institutions, along with its broad schemes of distribution, are just. (29) Part of this, it seems uncontroversial to say, is to ensure that all members of the society receive a satisfactory minimum of certain social goods, police protection among them. It is true that this satisfactory minimum is often determined comparatively--the more everyone around you gets, the more you feel you are entitled to yourself--but for various reasons this commitment to providing such a minimum still allows for considerable differences among recipients over and above it. These differences could have a variety of causes, such as gratuities or taste preferences, but distributive justice does not necessarily involve their careful monitoring and regulation at the micro level. Failure to acknowledge these possibly acceptable deviations above the minimum is to entrap a scheme of distributive justice into a type of bean-counting that is contrary to principles of efficiency, common sense, and the terms of reasonable cooperation and minor concessions that make any fair scheme of social organization possible. Because Rawls felt that the natural context of distributive justice was to be found in the basic structure of the institutions of a society rather than in pondering the full range of practical questions concerning a fair distribution, (30) the specifics of a program of distribution are therefore best left to a series of economic and practical calculations that are acceptable if their end result supplies all cooperating members of society with at least a satisfactory minimum.
When Rawls argued that the basic structure of a just state could allow inequalities only if they benefited the worst off, this was in the broadest sense. Whether or not this or that person gets somewhat more or less police presence is simply not the concern of political philosophy under such an interpretation. In sum, if the neediest person in a given society still gets a satisfactory minimum of police resources, the manner in which police officers deploy themselves in this scenario is not necessarily relevant to the concerns of justice. It is also not necessarily relevant to the concerns of democracy, or other types of social organization that are susceptible to Feldberg's line of argument.
That Feldberg's analysis does not comprehend this is a considerable flaw. The question to ask the poison-ivy salesmen and nail-salon owners is not whether they are getting an amount of protection equal to that of delicatessen owners. It is also not to ask whether they feel wronged because police officers have to eat while on duty and therefore are able to transact with people who sell food while on patrol (and, because they cannot turn off the benefit of their presence--nor should they--these business people get more police protection than others do because of their lot in life). The only relevant question to ask is: "Are you, as a citizen, receiving a satisfactory level of police services?" If the answer is "yes," then no immediate attack can be lodged against police who accept gratuities in the name of either a democratic ethos or other more finely-tuned arguments about distributive justice.
While I am content to let the idea of a satisfactory minimum remain blissfully abstract, I suppose that many others are not. For this, I will help myself to a Rawlsian device once more. One way to think of what this minimum would be is to ask, given a police department's present capabilities and resources, what level of police services all members of society would agree to accept if they simply did not know who they would be in that society. For this reason, it might be useful to impose the same conditions that Rawls stipulates people ought to use to decide on the basic structure of their institutions of justice. Under them, citizens would have no idea what their income would be, what their race or gender would be, or where in the jurisdiction they would end up living. The "veil of ignorance" I have pulled over the heads of these citizens is essentially the same hypothetical one that Rawls asks citizens to wear in his Original Position. (31) It is true that in Rawls's case they are deliberating about the basic structure of a just society and not the particulars of a satisfactory minimum. Unlike the two principles they derive--which were presented above--the veil of ignorance is used merely as an analytical device designed to elicit a just and equitable type of deliberation and not as a component of the structure of society that has limits to its applicability and relevance. (32) For this reason, I believe it can be fairly applied here.
If the present level of resources in a jurisdiction could afford a two-minute response time to all victims of serious crimes in every neighborhood, then this is the minimum that all would be entitled to, whether they were rich or poor, or lived in a good neighborhood or more dangerous one. That some areas are indeed "busier" simply means that in order to afford this minimum to all, some areas would have to be more heavily staffed than others. This type of calculation can be made in a number of dimensions, including general access to the police, time on hold when calling stationhouses and emergency lines, and the distribution of regular and specialized police equipment across commands. It can also be used to arrive at a satisfactory minimum of police presence in an area (given the ability of a force to provide it) and could even be used to justify certain inequalities: might the banks that hold a community's money and the schools that house their children employ mechanisms such as alarms to ensure a faster police response than the average? It is possible that deliberators could agree to these things, in fact justifying certain inequalities even without knowing their own lot in life.
If it turns out that this satisfactory minimum is being met across the board but that in some cases there are gross deviations above it, this is cause for the minimum to be suitably raised for everyone; obviously, either the police department's capacity has expanded, or the initial bar was set erroneously low. Given that police presence at certain locations is only a small part of these calculations, it is unlikely that a skewed distribution from gratuities, consumer preference, and so forth, will prove considerable enough to engage in such a recalculation. Most of the time, it seems that it will merely be the operational static present in the system.
If a person or business is not receiving the satisfactory minimum, however, then it still does not necessarily indict those who accept gratuities. It would still have to be shown that the lack of a satisfactory minimum is caused by an acceptance of gratuities somewhere else. If the lack stems from the isolation of a particular area from the rest of the precinct, or political tensions, or even the perceived personal danger of a location by police officers, then accepting gratuities is not a relevant concern. To sum up, it appears that the only way accepting gratuities can violate a democratic ethos of policing, regardless of how loosely or rigorously this ethos is construed, is if:
(1) any member of a police jurisdiction is not receiving a satisfactory minimum of police services, and
(2) this lack of a rendered satisfactory minimum is caused by a factor that is arbitrary in relation to the just distribution of police services, and
(3) this arbitrary factor is the acceptance of gratuities by the police.
Eating at Lento's, of course, is not a gratuity, but the first and second of the above criteria have been constructed to accommodate both the Lento's case and the gratuities case, because they are both incorporated into the general list of arbitrary factors that ought to have no effect on the just distribution of police services. In this way, we see how the Gourmand Case can be potentially problematic, but is not necessarily so.
These conditions reduce the force of the democratic ethos argument somewhat by showing that even if gratuities have a modest skewing effect on the overall distribution of police resources, this does not necessarily pose a problem for the principles of a just society. Instead their problematic character is contingent upon certain deleterious effects that they may or may not bring about. In order to word his argument properly, Feldberg should rewrite it to say that it is the failure to meet the minimum public safety needs of certain members of the public that violates a democratic ethos, and not that some members of society arbitrarily get police service over and above that need. Until the threshold of these deleterious effects is reached, making this concession allows police officers not only to accept certain types of benign gratuities, but also to eat at places that have the tastiest food at the best prices and to avoid having to spend patrol time in a store that sells poison ivy and doorknobs.
This often seems to be lost on Feldberg's followers. William DeLeon-Granados and William Wells follow Feldberg's broadest assumptions as far as they can in their study of how gratuities skew police presence. (33) Using a quantitative method that employed a relatively small sample size and used elementary measurement techniques, (34) they attempted to measure the frequency at which police officers ate at certain restaurants that offered gratuities, and compared this with the frequency with which they patronized ones that did not. They then drew conclusions about how this affected the distribution of police presence. To no one's surprise, DeLeon-Granados and Wells found that police officers received gratuities from some restaurants and that they preferred to eat at those over others. Moreover, they cited an ecological "gratuity exchange principle," whereby simply going to obtain the gratuities from those restaurants meant that police officers were on certain roadways and traveling certain paths more than others, yielding a skewed distribution of presence. (35) The principle is grounded in the fact that police officers, by simply being somewhere, have no choice but to render the service of "presence" at that location.
All of this may be true, but it is still rather myopic. Their quantitative analysis has the same shortcomings as Feldberg's ethical one because it is based on faulty assumptions. Would it be a problem were these officers to prefer the same one or two restaurants to the others while paying full price? Their model could just as easily be used to identify a "consistent taste preference principle." If the various neighborhoods of the jurisdiction receive a satisfactory minimum of police services based on their need for it, where is the ethical shortcoming that stems from a modestly-skewed distribution above this minimum? It cannot stem from the fact that police officers need to eat and have price and taste preferences when they do.
This line of reasoning suggests another problem with one of the premises of the democratic ethos argument, the problem being that policing is about so much more than mere presence. Police services include the speedy response of properly-trained and well-equipped officers who have the skills and abilities to handle the widest range of situations with which they may be presented. It also includes the ability of an agency to conduct follow-up investigations, make arrests after a crime has been committed, and prepare cases for trial. It includes managers constructing creative and effective strategies that make good use of manpower. It goes without saying that a good police agency will station more officers in places where concentrations of crime prevail. In light of the full range of police operations--and this list has not even focused on their role as mediators, report takers, and record keepers in cases such as civil disputes, injuries, and car accidents--it seems as if marginally skewed distributions of police resources due to the fact that police officers must eat constitute only a very small concern in the larger scheme of things. If a jurisdiction still comes to the conclusion that what it really values the most about a police force is its optimally-distributed presence, then it would likely be best served by hiring more police officers rather than expressing concern and dismay over the fact that the present contingent of officers' presence is not optimally distributed because of the reasons they use to determine where to buy their lunch. A larger police force would make the effects of skewing even more marginal. This is not to say that this is a practical solution for most jurisdictions, but is offered to suggest that if an optimally distributed police presence is the overriding preference of an agency, then there is an unambiguous way to address the problem apart from taking issue with how police officers distribute themselves when they eat.
An Alternative Objection
If one accepts that the idea of a democratic ethos does not do all of the work it should to provide a defensible reason for banning gratuities that are given for honest reasons, then the field of police ethics has been denied one of its most commonly-cited reasons for prohibiting the practice. Nevertheless, I will argue that there is a good reason why there ought to be a policy against accepting gratuities. I shall call it the "No Certain Knowledge" argument, though whether it is an argument that has moral or merely prudential force is a topic that is open to debate, though my inclination is more that it is a prudential one.
It is easy to see that the actual, physical practice of accepting gratuities is not, by itself, clearly indicative of something that is ethical or unethical. Whereas other acts are highly suggestive of their impropriety (think of a grown man severely beating a small child who passively shields himself from the blows), others are much less so and rely on detailed knowledge of the context and circumstances to make judgments about them. Gratuities fall into this latter category because their propriety is contingent on, as Feldberg has so succinctly said, the reasons why they are given and taken. (36)
Reasons such as these are very difficult for the observer to discern, especially at the point in which the gratuity is actually provided. In fact, the observer has no way of knowing whether the gratuity he is witnessing is an act of corruption or whether it is an act of civic friendship unless he is aware of the intent of both the police officer and citizen involved. Though unlikely, the act might even be a cup of coffee going on the officer's monthly account. It would take an observer days or weeks of close observation to become certain that the transaction was not followed by some form of official misconduct on the part of the police officer. Even if no misconduct was witnessed, he will never know for certain whether the intent of the citizen was to garner some sort of benefit from the gratuity, and the police officer took it but simply rebuffed the citizen's ensuing expectation.
This is not a satisfactory state of affairs if we expect the public to have faith in the moral fiber of police officers. As Stephen Coleman states, "one of the problems for public officials is the fact that they must not only carry out their duties impartially, but must also appear to be carrying out their duties impartially." (37) When police officers are faced with actions that could possibly be misconstrued, they "must be at pains to ensure that such a mistaken impression is not given the chance to arise." (38) Gratuities are not ethically wrong, then, because they make police officers appear to be corrupt. Instead, because the citizen observer has no certain knowledge with which to make a judgment about the ethical status of a gratuity, it is simply often not prudent for a police agency to allow its officers to engage in a dispensable act that can cause considerable uncertainty about the ethical standards of the police.
That the act is dispensable is important, because there are many acts that police officers perform whose ethical status is unclear. The use of force by police falls into such a category. Is a police officer who hits a person with a baton doing so for some good reason or because he is a racist with a bad temper? Is the officer who shoots a person to death in a dark alley justified in doing so? On their face, these situations cannot be resolved without further observation and investigation by the person who wishes to know the propriety of the acts. Yet we would never call it imprudent for police agencies to allow the use of force to be on the menu of options for police officers. This is because, despite the inherent problems with using force on a person, criminal or not, force is not a dispensable part of police work. To address this, responsible police agencies have formal mechanisms to review the use of force by officers in order to determine whether good judgment was used in cases in which a citizen was harmed by the police.
If accepting a gratuity is an act of whose nature an observer has no certain knowledge, and gratuities are completely dispensable, then police agencies, if they are prudent, might not want to allow them. This would avoid potential confusion about whether they are actions that are either harmless tokens of appreciation or outright acts of corruption. I have used the term "prudent" for a specific reason, and it is to convey that a prohibition on gratuities for this reason is not a moral judgment, but instead a matter of good institutional policy, like not wasting office supplies. A police chief could just as easily not ban gratuities and instead say to citizens that "my police officers are well-trained in ethics and are of the highest caliber as professionals. When they accept a pastry or cup of coffee as a small token of civic friendship, although you as an observer cannot make a complete and accurate judgment at that time, I am certain that they are not going to overlook their sworn duties as a result of the gratuity." Police chiefs make these types of statements regarding the use of force all the time.
In an ideal world, in which everyone's ethical sensibilities were finely-tuned, a police chief could say such a thing. A ban on gratuities as I have justified it grounds itself in the fact that life is full of uncertainties and imperfect judgments--not to mention exceedingly imperfect observations of the police by citizens--and so, if an act is not necessary to the police profession, it is best omitted from it by policy. A ban on gratuities, then, would fall in line with bans on what the New York City Police Department calls "making unnecessary conversation" (39) while on post, or parking more than one police car at the same location while officers are on meal break. (40) The latter is frowned upon for the same reason that the No Certain Knowledge argument might be used to prohibit eating at Lento's in the Gourmand Case: because, despite even the best intentions, it is very easy to assume that an impropriety is taking place when police officers congregate at one spot for meal. At the very least, they might owe it to the public to spread their presence out more effectively while eating. The former suggests that a police officer neglects his duty by socializing, or even appearing to socialize. None of these things is ethically wrong in and of itself (apart from breaking the rule prohibiting it), but it is just prudent not to allow it in order to avoid potential misunderstandings. In fact, the rule against unnecessary conversation has been effectively abandoned for the sake of community policing, which is congruent with reasons why one might also wish to reconsider a ban on token gratuities when conducting community policing operations. Along these lines of reasoning, however, the commander of the 49th Precinct could be empowered to ban excessive patronage of Lento's, but for a more defensible reason than those offered by the democratic ethos argument.
A way to import a moral dimension into this discussion is to take up a consequentialist line of argument. The consequentialist would say that if a policy of allowing gratuities produces, on balance, worse results for the public than any policy that bans gratuities, it is morally wrong to have a policy that allows the acceptance of gratuities. It seems easy for a person to help himself to such an argument, but I will not. At most, it allows a person to take the prudential argument I have sketched and give it a moral dimension by saying that it is a moral imperative to produce the best results possible for the public. This, however, comes along with all of the baggage that makes consequentialism so difficult for many people to accept. For example, if we are act utilitarians, we might agree that allowing the police to frame and imprison innocent people for heinous crimes of great concern to the public would net the best results for society. (41) Even if one counters that the rule utilitarian variety of consequentialism prohibits certain practices that we find morally onerous--while conceding that the rule utilitarian appeal is a post hoc alchemic approach designed to account for this objection even though it has its own host of acute justificatory problems--then the matter of the morality of gratuities is still an open question. It merely remains to be seen whether it is better as a rule for police officers to accept gratuities or to be prohibited from accepting them. Nonetheless, to take the No Certain Knowledge argument and use it to make a further utilitarian argument about gratuities means that one does not accept the democratic ethos rationale anyway, because the ethos rationale is a deontological argument--or perhaps one of virtue ethics in the interpretation of some--that has no compatibility with utilitarian practice. One might want use a consequentialist rationale to fulfill the democratic ethos--as I suggested earlier--but what is being considered here is using consequentialism to replace it. If a consequentialist says that prohibiting gratuities produces benefits that on the whole outweigh those of allowing them, she is arguing this apart from a concern for democratic sensibilities. In such a case, any congruence with Feldberg's democratic ethos would be merely incidental. If the ultimate calculations were to change over time in favor of accepting gratuities, a consequentialist would recommend this course of action, and her temporary allegiance with a democratic ethos would disappear.
A de minimis Policy
The alternative, prudential objection to accepting gratuitues I have offered would also allow for exceptions in important cases. This is essential, because a sincere commitment to the philosophy of community policing is counter to a policy that prohibits gratuities. Such a policy would introduce a considerable tension that is not easily resolved. At its heart, community policing is about the ability of the police to form meaningful bonds with citizens that go well beyond a professional relationship between law enforcers and their fellow citizens. Although it may be ill-advised if policing is to be viewed as a "profession," community policing is about police officers and citizens forming friendships as well as partnerships. Small gratuities are tokens of civic friendship that are seen as vital to forming the bonds that community policing requires. Gratuities signify generosity, community, and trust. It is unrealistic to assume that community policing can be performed to the standards its success demands, by officers with the faculty of sound judgment that is required of them, if gratuities are categorically prohibited. To prohibit them is to create a body of regulations that police officers will not take seriously and that will only feed their cynicism. It seems, then, that despite the "No Certain Knowledge" argument, the best alternative is to permit gratuities that are de minimis in value. In doing so, the regulations surrounding gratuities could employ this well-accepted legal principle that is often used to acknowledge the idea that we ought not to deprive people of the small pleasures in their lives, or prohibit acts that are too small in scale to have a significant effect on the moral character of a person. (42) The full term is in fact de minimis non curat lex, which can be translated to mean "the law does not concern itself with small matters." A free cup of coffee from the grocer whose streets you patrol is just such a thing.
When I was a rookie on sector patrol in East Flatbush, Brooklyn, I once had an extremely difficult time paying for a small cup of coffee at a locally-owned deli, my efforts made no easier by the argument from the woman behind the counter that "if I take your money, it won't make me rich, and if you take my coffee, it won't make me poor." Every time I put money down on the counter and left as the counterperson implored me to take the cup of coffee on the house, I could not help but feel as though my actions were saying to the person: "I don't trust you, and I don't trust your judgment." I felt as if I were saying to the person by my actions that although the cup of coffee probably cost the business owner twenty or thirty cents, I had no choice but to surmise that this thirty cents was an attempt by him to take advantage of me and not simply to be a kind person. This is hardly a way to foster the tight bonds that make police the positive presence in a community that we all wish them to be. These favors are returned when a police officer goes a little further than the call of duty requires, and not necessarily to the people who give him gratuities. The officer who stops in to reassure a recent crime victim on his way home or who looks for a boy's missing dog when the procedures do not require such a search is, in his own way, giving a gratuity to the public. Nobody seems to have a problem with this; he constitutes the archetype of the "good" cop. I would rather assume that such small tokens are given and taken for all the right reasons and adjust my behavior if it turns out that they are not. I believe the public would be sympathetic toward a department with officers who acted in good faith in this manner. In a final conciliatory note, Feldberg suggests that perhaps "we need not begrudge police officers their free coffee, half-priced meals, and the sense of welcome or appreciation that they convey." (43)
Jim Ruiz and Christine Bono would counter this accommodation by arguing that small gratuities such as these can nonetheless add up to very significant sums that indicate corruption. (44) They asked students to examine a fictional case in which a police officer takes advantage of all the small gratuities that are available to her, and they found that it could easily add up to over $8,700 a year, which is a significant percentage of the total income of police officers in many jurisdictions, and certainly a very large percentage of the salary of an officer in New Orleans, where Ruiz worked as a sergeant of police. When considered in light of the average police officer's gross salary of just over $34,500 a year, they concluded that the money saved by gratuities could easily account for a 33% increase in an officer's income. "Viewed in this light," they wrote, "it is difficult to understand how the acceptance of gratuities by police can be classed as a minor and inconsequential infraction of rules best left unenforced or ignored." (45) They characterize the arguments such as the de minimis one above as "attempting to wrap the corrupt and evil practice of gratuity acceptance in a cloak of moral, ethical, and philosophical respectability." (46) Considering that even those who ultimately come out against gratuities in all of their forms still usually acknowledge that the smallest ones are most likely benign, this is a very strong stance.
To justify their assertions, Ruiz and Bono assumed that police officers would seek to take advantage of all gratuities offered to them all the time, including a full free lunch, two sodas or coffees and three donuts a day, every working day ($2,420.60 a year). On top of that, they assumed the officer would smoke a carton of free cigarettes and drink eight free mixed alcoholic drinks a week, as well as accept free movie tickets 104 times a year ($5,330). Finally, they also assumed that police officers would have their uniforms laundered for free, year-round, after wearing them one or two times ($962.50). (47)
I am not exactly sure how to respond to this argument, because it holds up a highly reprehensible, unethical gratuity taker and uses her to argue against allowing the police officer who wants to accept occasional token of civic friendship to do so. It is very hard to take seriously. The argument is certainly tautologically true: a police officer who seeks to accept thousands of dollars of things for free due to her status as a police officer is the type of person who will use her status as a police officer to seek to accept thousands of dollars of things for free. The actions of this type of police officer can be easily prohibited not only by Feldberg's narrow argument but also by a host of other commonsense prohibitions against systematic, large-scale corruption qua gratuity-taking. Still, how does this indict the intelligent, well-trained police officer who accepts only tokens and who would never seek systematically to bolster her income by taking advantage of people's hospitality to the point that it became abuse? Feldberg considered "the official attitude toward gratuities"--which typically relies on the type of slippery slope logic used by Ruiz and Bono here to show that there is somehow a link between the officer who accepts gratuities as tokens and the one who accepts them to gain an extra $8,700 in after-tax buying power--"[as] somewhat unrealistic, hypocritical, and insulting to a police officer's intelligence." (48) These same charges can be leveled at Ruiz and Bono's analysis. It is possible that Ruiz's exceedingly pessimistic view of a police officer's ability to make sound ethical judgments stems from the personal work experience he often invokes in his discussion of gratuities. As a former sergeant of police in the New Orleans Police Department, he was employed by an agency commonly cited as the most underpaid, corrupt, and profoundly troubled big-city police department in the United States. Within such a department, there might indeed be little room for nuance and reflection when it comes to considering complex ethical questions. Policing a large city with a healthy and robust police department absolutely requires such nuance and reflection, however.
A final objection is that small gratuities simply do not need to be a part of highly satisfactory relationships between the police and citizens, even in the framework of community policing. It is possible, some will argue, to do everything that policing requires while steadfastly abstaining from taking any goods or services for free. In one respect this is an assertion which asks: "Is it possible for police to be everything we want them to be without their accepting free things from the public?" I guess it is theoretically possible, but a more important question to ask is whether it is desirable for such a state of affairs to prevail. The exchange of money for goods and services is what people do to survive in the world, but it is not the way we would structure all of our transactions with the people most important to us if we could choose to do' otherwise. In this way, token gratuities given and taken for all the right reasons embody a vision of policing that is perhaps the most progressive we have yet conceived of: the police not as faceless authoritarians with a monopoly on the use of legitimate force, but as indispensable protectors of public order that have a place in our local communities that transcends the usual formal business and government transactions. Acceptance, friendship, and intimacy within communities has, for thousands of years, been expressed by two parties acknowledging that their relationship is not merely a business one, and that the things a person normally sells in order to make a living are sometimes given to a friend for free. Maybe we would prefer that police officers do not hold this place in the community and that the professional model of detachment from the public prevail instead. If we prefer that they do, however, then we must also acknowledge that a categorical ban on token gratuities may be incongruous with this. This does not justify the systematic or even repeated acceptance of gratuities, but instead chiefly suggests that, given such goals, a carefully executed de minimis policy may be the most appropriate stance. Larger but potentially acceptable gifts, such as those for solving a very notable case or a scholarship to a university given to a police officer, could be easily dealt with using a review board mechanism already in place in most jurisdictions.
The point that I have tried to make here is that the broad "democratic ethos" argument against police discretion, when it comes to gratuities, is highly complex and faces some challenges. When looked at as a systematic theory rather than simply as a dogma, it cannot easily offer answers to all the questions about distributive justice and fairness that it requires us to ask. The reason why it has persisted so long without such an examination is that it has great intuitive appeal, but a formal articulation of it in a manner that enables us to give it close scrutiny forces some of us to conclusions about police practice that we cannot readily accept or to a scheme of distributive justice that has all the shortcomings of the more famous ones and that is furthermore applied in a way that these schemes never intended to be.
In order to round out the argument and provide an acceptable alternative to its broad construal, I have proposed that police officers can be prohibited from accepting gratuities because, even though they are morally permissible in and of themselves given the proper intentions, they cannot be readily distinguished from unethical conduct by the citizen-observer. The discussion of this alternative would benefit from a clarification of whether this prohibition is merely prudential, or ethically required, or if there is even a meaningful contrast to be made between the two. This alternative reason for prohibiting gratuities is more tenable than other approaches because it acknowledges the intuitive belief that people of sound judgment--indeed, those people whom we would like to see as police officers--are capable of coming to their own satisfactory conclusions about accepting gratuities. This acknowledgment is indispensable for gaining the attention and sincerity of police officers. It does so, however, while acknowledging that acceptable personal conclusions can conglomerate into unacceptable, widespread perceptions by the public. The de minimis exception, acting as a safety valve, ensures that police officers will always be able to act in a way that accords with the norms and customs of society by enabling them to accept small tokens under the right circumstances. It recognizes this important reality and in doing so does not lead police officers to wrestle with an overbroad policy that turns accepting these tokens into misconduct, thereby inspiring their disdain toward the very body of regulations that they are supposed to take seriously and believe are carefully considered and just.
It is often said that police officers are the agents of the government who have the closest, most in-depth contact with the everyday lives of citizens. Moreover, this contact happens in the context of their everyday activities. While firefighters principally interact with citizens in their burning homes, bureaucrats when they go to government offices, and social workers in pre-planned home visits, police officers work with citizens in the free-form scripts of their everyday lives, and they fulfill a vital role in doing so. Gratuities are a part of this script not only because of all the bad reasons associated with corruption, but also because of all the good ones associated with civic friendship. If a policy against gratuities has a pragmatic rather than ethical basis, then prohibiting them by fiat is a dogmatic response, although one typical of the types of the bureaucracies that generate police policy. Such prohibitions will serve only to increase the rift between police officers and their bosses, because police officers are acute judges of their work environments, and they will not be able to take categorical prohibitions against gratuities seriously. Indeed, at present, they rarely do. A policy that comprehensively bans small gratuities is incongruous with the very fabric of present-day policing.
(1) Michael Feldberg, "Gratuities, Corruption, and the Democratic Ethos of Policing: The Case of the Free Cup of Coffee," in Moral Issues in Police Work, ed. Frederick A. Elliston & Michael Feldberg (Totowa, NJ: Rowman and Allanheld, 1985), 267-76.
(2) Ibid., 275.
(3) Ibid., 276.
(4) Thanks to Arthur Applbaum at Harvard University for making this point so succinctly.
(5) Feldberg, "Gratuities," 271.
(6) Ibid., 273.
(7) Ibid., 274.
(8) Ibid., 275, emphasis added.
(9) Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).
(10) Feldberg, "Gratuities," 268.
(11) Richard R. E. Kania, "The Ethical Acceptability of Gratuities: Still Saying 'Yes' After all these Years," Criminal Justice Ethics 22, no. 1 (Winter/Spring 2004): 54-62 at 55.
(12) Edwin J. Delattre, Character and Cops: Ethics in Policing (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1989), 80.
(13) Police officers, especially when in uniform, are always on duty, even when they are on meal break. Were a policy change to determine that they were not on duty while eating, the deterrence effect of their uniforms would persist. Consider, moreover, the New York City Police Department's instructions for officers while on meal break: "Acknowledge calls directed to unit ... comply with any requests for police service and make appropriate [log entries]." City of New York, NYPD Patrol Guide, Procedure 212-02: "Meal Period" (Effective 01/01/2000).
(14) Feldberg, "Gratuities," 274.
(15) Ibid., 276.
(16) From the Merriam Webster Online Dictionary, at http:// www.m-w.com/dictionary/ethos (December 12, 2005).
(17) Feldberg, "Gratuities," 275.
(18) For the extended argument on this topic, see Mark Sagoff, "Values and Preferences," Ethics 96, no. 2 (1986): 301-16.
(19) Ibid., 303.
(20) Patrol Guide, Procedure 212-02: "Meal Period": "Commanders may designate a portion of an adjoining precinct where members may obtain meals during the hours if a suitable eating facility is not available within the precinct of assignment."
(21) Kania, "Ethical Acceptability of Gratuities," 59.
(23) Feldberg, "Gratuities," 274.
(25) John Rawls, A Theory of Justice (Cambridge, Mass: The Belknap Press of Harvard University Press, 1971, revised edition, 1999), 153.
(26) This characterization of Rawls's "ignorance of probabilities" condition as a magnifying device was offered by Joshua Cohen in "Democratic Equality," Ethics 99 (July 1989): 727-51 at 750-51.
(27) Rawls, A Theory of Justice, 136.
(28) Rawls, Political Liberalism, revised paperback edition (New York: Columbia University Press, 1996), 5 (emphasis added).
(29) Rawls, A Theory of Justice, 7.
(31) For a concise summary of the conditions of Rawls's Original Position, see David Lyons, "Rawls Versus Utilitarianism," Journal of Philosophy 69 (1972), 535-45 at 540.
(32) John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, Mass: The Belknap Press of Harvard University Press, 2001), 16-17.
(33) William DeLeon-Granados and William Wells, "Do You Want Extra Police Coverage with those Fries? An Exploratory Analysis of the Relationship between Patrol Practices and the Gratuity Exchange Principle," Police Quarterly 1, no. 2 (1998): 71-85.
(34) Ibid., 75-76.
(35) Ibid., 74.
(36) Feldberg, "Gratuities," 267-68.
(37) Stephen Coleman, "When Police Should Say 'No!' to Gratuities," Criminal Justice Ethics 22, no. 1 (Winter/Spring 2004): 33-43 at 41.
(39) NYPD Patrol Guide, Procedure 206-03: "Violations Subject to Command Discipline" (Effective 01/01/2000).
(40) Ibid., Procedure 212-02: "Meal Period."
(41) Or, for that matter, we might wish to permit slavery or serfdom if turned out to produce more good for society than other competing arrangements. These are classic objections to utilitarianism. Because Rawls is invoked extensively here, a suitable discussion along these lines can be found in David Lyons, "Rawls versus Utilitarianism," 537.
(42) For example, the NYPD Patrol Guide allows subordinates to engage in financial transactions with superiors provided that the value of the transaction is de minimis in value, such as selling Girl Scout cookies or commemorative T-shirts. See Procedure 203-13: "Financial Restrictions--Prohibited Acts" (Effective 01/01/2000): "a subordinate may sell products for profit or charitable purposes, or solicit donations for charitable purposes from a superior if the amount involved is de minimis. The Board has defined de minimis to be $25.00 or less."
(43) Feldberg, "Gratuities," 276.
(44) Jim Ruiz and Christine Bono, "At What Price a 'Freebie'?: The Real Costs of Police Gratuities," Criminal Justice Ethics 22, no. 1 (Winter/Spring 2004): 44-54 at 50-52.
(45) Ibid., 52.
(46) Ibid., 53.
(47) Ibid., 52.
(48) Feldberg, "Gratuities," 268.
Brandon del Pozo is a lieutenant in the NYPD and a doctoral candidate in philosophy at the City University of New York. He also holds a master's degree in public administration from Harvard University.
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|Author:||Del Pozo, Brandon|
|Publication:||Criminal Justice Ethics|
|Date:||Jun 22, 2005|
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