J.A.I.L. News Journal Los Angeles - March 11, 2001 ____________________________________________________ Listen to HotSeat4Judges daily on Internet Radio M-Th,Message 1 of 1 , Mar 11, 2001View Source
J.A.I.L. News Journal
Los Angeles - March 11, 2001
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Cop Advises Cops On When To Just Say NO!
COPS WHO SAY 'NO'
Can a law be so bad that police have an obligation to refuse to enforce the thing? You bet -- unless the cops want to claim a duty to just "follow orders." http://civilliberty.about.com/library/weekly/aa022601a.htm
As hard as I am on cops — and I'm not about to stop — I'll be the first to admit that police have a thankless job these days. Forget the new high-tech cop toys and court decisions that treat the Fourth Amendment like an irrelevance — they give police more power, but they don't necessarily make the job more rewarding. The problem is age-old, but has worsened in recent years: police are increasingly asked to enforce restrictions that apply not to an irresponsible fringe of society, but to an ever-growing cross-section of just plain folks who find those laws repugnant and immoral.That raises a question that only a few law-enforcement professionals have addressed: When should a police officer turn to his superiors and say: "I just won't do that."Recently, 60 Minutes II reported on marijuana control efforts in and around Mendocino County in northern California. Local restaurants refuse to serve police who work on the task force that seeks out and destroys illicit marijuana plantations. Radio station report police movements so that growers and distributors can stay one step ahead. And locals sometimes shoot at police helicopters involved in hunting down ganja fields.What's happening with those wacky Californians? Nothing too surprising, really. It's simply that the prevailing culture of the area considers the cultivation, distribution and sale of marijuana to be a perfectly legitimate activity. The law disagrees, of course, but many locals have made the decision — hardly unprecedented — that the law is wrong and immoral.As a result, police enforcing the immoral laws are resisted with ostracism, sabotage and even force.
That's a problem as far as policing is concerned, and not just because it makes for hungry lunch hours if you're wearing a uniform. Since the 19th-century, cops have been expected to abide by the principle stated by Sir Robert Peel, the father of modern policing:
Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.It's hard to hold to that standard when the public so thoroughly hates what you're doing that it won't sell you a sandwich and a soda. At that point, policing starts resembling the occupation of an enemy territory. Rather than keep the peace, cops actually stir things up and square-off against a big chunk of the community.That's happened in the past, of course. Prohibition may have been supported by a majority of Americans — at least for a while — but a sizable minority considered it a major intrusion into their lives and liberty. Police in the 1920s found themselves at odds not just with low-lifes, but with regular folks who had no qualms about defying a law they considered illegitimate.A century earlier, the federal Fugitive Slave Law excited even stronger passions. Requiring as it did that escaped slaves be returned to former masters from the free territory to which they had fled, the law was viewed by many people as not just illegitimate, but as mandating immoral acts. Abolitionists denounced the law and sometimes violently confronted those charged with its enforcement.In 1851, Ralph Waldo Emerson proclaimed: An immoral law makes it a man's duty to break it, at every hazard. For Virtue, according to the old lawgivers, is the very self of every man. It is, therefore, a principle of law, that an immoral contract is void, and that an immoral statute is void. For, as laws do not make right, but are simply declaratory of a right which already existed, it is not to be presumed that they can so stultify themselves, as to command injustice.Was it just Emerson's gut-level revulsion at slavery that fueled his pronouncement? Not entirely. He appealed to a long philosophical tradition, incorporated at least partially into American jurisprudence, that the natural right to be free trumps statutory law:A man's right to liberty, is as inalienable as his right to life. To take his life, is not a higher crime, than to take his liberty. ... [I]t was a principle in law, that all immoral laws are void. ... The law rests not only on the instinct of all people, but, according to the maxims of Blackstone & other jurists, on equity; and it is the fundamental thesis, that a statute contrary to natural right, is illegal, — is in itself null & void."Carried forward, that tradition finds its expression in the efforts by the people of Mendocino County to defend their neighbors by making life a living hell for police who enforce the drug laws. That tradition also appears front and center in fiery debates among gun rights activists. Faced with increasingly restrictive laws that millions of firearms owners consider immoral threats to their liberty, some people have called on police to refuse to enforce current laws, or at least to explain how far they are willing to go.A widely circulated document that has sparked some interesting exchanges is said to recount an encounter between Peter J. Mancus, a Sebastopol, California, attorney, and a police officer in that town. Mancus asks the officer what he would do if ordered to confiscate privately held firearms. The officer responds that he would obey the order, and use lethal force if necessary. The conversation rapidly goes sour from there.
And that's the starting point for a pretty furious public debate.What you might call traditionalists — mainstream conservatives among them — aren't at all comfortable with the idea that police should be exercising moral judgment over the laws they are ordered to enforce. Leroy Pyle, a former police officer who founded the Second Amendment Police Department — a gun-rights group geared toward law-enforcement professionals — best represents that point of view.Anyone with military or sports experience understands the importance of following orders. You don't win a war by voting on which hill to take, or toss a coin in the huddle to decide on a play. True winners depend on following orders. ...I appreciate and share the need to appeal to law enforcement for assurance that individual rights are high on their list of priorities. Like the majority who choose a law enforcement career, I'm proud of my profession. I followed orders for nearly 30 years and have no regrets. ...But the "I was just following orders" mindset has such inherent moral weaknesses and has been so thoroughly parodied since at least World War II that it practically rebuts itself. The rebuttal is captured by the phrase "Nuremberg Principles," which refers to the fact that a good many German officers and political officials were put on trial at Nuremberg for the acts they committed under orders. That they were obeying higher authority didn't save them from legal consequences. That's because, to return to Emerson, "a statute contrary to natural right, is illegal, — is in itself null & void."That means that obeying orders and enforcing statutory law doesn't excuse police officers from the responsibility to consider the moral consequences of their acts. No matter how many forms are filled out, or the clarity of blackletter law, the man or woman on the spot bears personal responsibility for his or her actions. If the order or the statute is immoral, so is its enforcement — the more so, the more force is used.That's relatively easy for a 21st-century American to say in looking back at war-era German police officials. The Germans rounded up Jews, Gypsies and political dissidents and sent them to their deaths. Was it so hard to figure out that this was evil?But those Germans had much the same support as today's cops. Their orders came through formal channels. Their actions were to enforce the law of the land, and their colleagues — and much of the public — supported what they did. Things seemed a bit fuzzier then than they do now in the age of non-stop World War II programming on the History Channel.So when should a police officer just say "no."
Well, I could tell you my own guidelines, but if everybody shared my views on what laws should and shouldn't be on the books, I'd be doing something else for a living.
A good starting point is just to remember that police officers are responsible for any immoral acts they commit, and immoral laws they enforce, even when they do so in accordance with orders and written statutes.Morality, quite simply, exists above the law. Likewise, individual rights pre-exist the law and can't be abolished by a majority of the legislature or the population.
So police officers who stop every now and then to consider the consequences of their immediate responsibilities in particular, and their jobs in general, are already ahead of the game.If you're not sure where to start in differentiating among good and bad laws, and you're not quite ready to adopt my live-and-let-live views, here's a suggestion for determining whether laws should be enforced. If it's a restriction on liberty that a significant number of people — let's say one in 10 — actively oppose, then it probably ought not be on the books, because enforcement is likely to spark a world of recriminations and headaches.
How outrageous is that? Do you think that would erase laws against murder? Rape? Burglary?
Doubtful. The lobby for legalizing serial murder is pretty tiny. But requiring near unanimity would pretty efficiently dispense with a host of petty rules that 51% of the population vaguely favors on any given day. Such laws often provoke serious opposition from a rock-solid minority of the population that is willing to battle the authorities over the issue if necessary.Really, should society be sanctioning the use of force against these resisters over issues that can't command near unanimity?If police officers who put their jobs under a moral microscope conclude that the bulk of their duties are insupportable, they may have to decide whether a career change is in order.Yeah, that's a big decision, and there are always worries about mortgage payments and college funds tocomplicate the issue. But just as pleas of "necessity" rarely ease the consequences for burglars and car thieves, so enforcing evil laws isn't excused by the stack of bills on the end table.German cops had financial obligations too. A little concern for the morality of the laws that police enforce and the depth of opposition those laws face can go a long way toward making sure that cops can buy a sandwich at lunch — and that they don't face far worse consequences than empty bellies.
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