In Part I of this two-part post, we examined the viral video of a sheriff’s deputy subduing and repeatedly striking a teenager. As part of our analysis, we singled out policies that insulate problem officers from accountability: the SCOTUS-invented legal doctrine of qualified immunity, state laws outlining a “law enforcement officer bill of rights” and the proliferation of military-grade weapons and tactics among civilian law enforcement bodies (the latter two were included in a link but not discussed). It’s easy to blame individual officers for blatant excessive force incidents, but, as many economists will point out, incentives matter. Meaningfully reducing these incidents requires repealing policies that cultivate a system of bad incentives.

The above policies encourage bad conduct in distinct but mutually reinforcing ways. Militarization induces domestic “peace officers” to act more like combatants in a warzone—resulting in more violence and misconduct. Qualified immunity and procedural protections for law enforcement beyond those afforded to civilians shield abusive officers from consequences. But another contributing policy, oft-neglected and currently in vogue, warrants its own post.

Overcriminalization—a term describing the expanding number of laws that criminalize increasingly benign behaviors—offers critical insight.

The statement issued by the Rancho Cordova Police Department to address the appalling viral video from Part I notes that the officer “was in the area due to complaints from citizens about hand-to-hand sales of alcohol, tobacco and drugs to minors.” It’s true: The teen’s family admitted he was in possession of a Swisher Sweet, a popular cigarillo brand.

If this story feels familiar, it’s because one of the freshest accounts of this sort in public memory involves Eric Garner, a black male who was choked to death by an NYPD officer after a dispute over selling “loosie” cigarettes. These stories from New York and California both resulted from similar minor offenses, and there’s no reason to believe such incidents are rare. Puzzlingly enough, those on the left quickest to decry police violence are usually the ones behind the nationwide push to ban all kinds of tobacco products.

It’s the opinion of these authors that such policies cultivate these encounters. Bans on products with strong demand and few substitutes tend to only mildly reduce consumption, if at all, and encourage underground sales. Bans and black markets tend to create violence. These are empirical realities.

Happily, some left-of-center groups have recognized this problem and advocated against a federal ban proposal, which passed the U.S. House of Representatives this year, by pointing to these costs. But it’s imperative that more people see an impending “War on Tobacco” for what it is—a misguided campaign that would repeat the mistakes of the “War on Drugs” and create more scenarios like the one in this video.

Is the answer, as applied to the case under analysis, to not enforce laws prohibiting sales to minors, or even to repeal them? Certainly not. The example here merely provides a preview of what we might expect from laws that encourage officers to police illicit sales. We may decide the benefits of prohibiting sales to minors outweigh the costs of enforcement.

Indeed, R Street has supported raising the legal age to purchase tobacco to 21. But the benefits are far less clear in the case of banning products for adults, where research suggests consumption is unlikely to significantly change in response to prohibition and where bans cover products that provide ameliorative public health effects. And while the benefits are exaggerated, the costs are too often neglected in public discussions.

It’s vital that we address the perverse incentives that shield bad cops from justice and public accountability. As discussed in Part I, that will be no small task. In the meantime, however, policymakers should seriously rethink passing laws that inadvertently increase these kinds of encounters.

Prohibition, as history shows, is a blunt object. With respect to tobacco bans, tradeoffs are inevitable and the costs are high. Any strongly enforced ban on an addictive product will produce an uptick in arrests, violent law enforcement interactions and a further wedge in the trust between communities of color and police officials.

Those in favor of reducing these kinds of incidents should not ignore this reality, and lawmakers shouldn’t either.

Image credit:  Bennian