At 5:08 PM -0500 7/23/01, measl@mfn.org wrote:
On Sun, 22 Jul 2001, Petro burbled upon us thusly:
Another point you bring up is that a LEO should not enforce laws that "clearly" violate the constitution.
A LEO cannot do that *and still be a LEO*. He can refuse by resigning, but if he simply takes the position that he will only enforce laws he thinks are constitutional he causes a violation of one of the fundamental underpinnings of the constitution, that all people are equal under the law, and that the law is supposed to be equally applied.
Maybe you should look at the oaths that are sworn to by all public employees, of which LEOs are but a small maggot in a big sewer. All of
I took one of those 16 years ago as a US Marine, and again 5 years later as a member of the National Guard. I've also spent a fair amount of time thinking about that oath, and the ramifications of it.
them contain a provision whereby there swear to uphold the constitution. Not to follow orders which may or may not be chain-of-command valid, and *hopefully* constitutional.
At the risk of going Choatien and stepping far beyond any degrees I may have, the position that each and every LEO in this country *should* (as opposed to does) decide for himself whether a law fits his understanding of the constitution before enforcing it is not only unworkable, but--if the LEO truly believes in the concepts of "Rule of Law", wrong headed. As a further disclaimer, let me say that I don't think "The Legal Community" agrees with me. They're agreement or not isn't a factor in my thinking. I already know (as Declan points out) that Reno doesn't agree with me, but from her actions it's quite clear she doesn't believe in the Rule Of Law--at least not in the sense I've been using it. Now, in an ideal world the constitution would be clearly worded and the semantics would be clearly understood by the people who live under it. However, "It ain't like that". English is by no means an ISO (or even ANSI) standard, and even reasonable people can disagree on the complexity generated by the various articles and sections of the constitution and the amendments. Look for example to the issue of the Second Amendment. The clearest plain word interpretation of that amendment is that the no one has the ability to infringe on the right of "the people" to keep and bear arms. Fairly simple. Does that then mean that just about every firearm law in the country is invalid on it's face? Well, no. See, the same constitution also grants Congress the power to regulate interstate trade, so as long as they don't "infringe" on the right, they have a wide latitude to set standards etc. Or do they? What are the limits of that particular clause? Further more, what is *constitutionally* an infringement? Is it acceptable for Congress to set (legitimate) product reliability standards? (e.g. to require a pistol must be capable of firing <x> rounds between failures etc.) or certain safety guidelines (e.g. that every handgun be fitted with a safety device of some sort that keeps it from firing unless the trigger has been pulled). Let's get even finer. Do you *really* want your local beat cop to be making decisions on what does and doesn't fall into "protected speech" (or even whether there is a distinction there to be made?) Or how about certain laws of a very questionable nature that make it a crime for groups larger than <x> to gather without a permit. On it's face these are unconstitutional, but if the vast majority of police in a district *don't* enforce these laws, but one or two do (under the belief that the constitution only applies restrictions to the state and federal government, not the city governments (there are people who believe this, and absent the explicit incorporation by the 14th (which even by the appellate courts is applied non-uniformly so far) they may have a legitimate argument) then you have a case where you are just hanging out with some 5 or 10 of your closest buddies as you do every day, and the normal beat-cop, who doesn't enforce this law because it's unconstitutional doesn't say anything, but his fill-in on a sick day rousts you all and takes you to jail. It's happened in Chicago, and worse (see below). There are at least 3 states a law can be in vis-a-vis constitutionality: (1) Adjudged unconstitutional. (2) Adjudged constitutional. (3) Not adjudged relative to it's constitutionality. Now, things get a little less clear. In the case of (1) and (2) there is the question, not only of exactly what the court upheld or didn't (see the recent case of the Oakland Cannibis decesion, widely reported to have the SC declare Medical Marijuana unconstitutional, but actually simply said that "No silly, of COURSE federal law trumps state law in a Federal Court"), but *which* court upheld or struck down a the law. For instance, in the Peoples Republic of California there is no right to keep and bear arms. Since it's not in the State Constitution, and the BoR only applies to the *collective*, not the individual, then there is no individual right. So here we have a fairly high level court saying we don't have a right which *most* people in this country say we do (the majority believes that the 2nd "gives" the individual the right to keep and bear arms, they just may not agree with that right). What is a LEO to do? In *his* belief, the court is wrong, but according to *THE COURT* there is no constitutional protection of firearm ownership, therefore just about any laws that don't run roughshod over other protections (that the court may or may not have spoken on). Let us then look at the case in the 5th district court--Emerson. By all appearances (and this is largely supposition at the moment) the justices in that case seem to be of the opinion that the 2nd does give an individual right to arms. But an officer in, say New Orleans doesn't agree, he is of the opinion that the 2nd *only* applies to organized militia members, and only to military firearms. So even after the court rules on Emerson (assuming for the sake of argument that they do rule strong in favor of an individual right) this member of NOs finest continues to arrest people like Dr. Emerson on weapons charges. Back to Chicago for a second. See, in Chicago, at least until 2 years ago, they had this "anti-gang" ordinance that (get this) prohibited loitering in public parks, and prohibited groups of more than <x> (where <x> was somewhere between 3 and 7, I think it was 5, but I can't remember exactly) from loitering on public property. This was a very, very sparsely enforced law, and was most often used by Police to harass people who were legitimately gang members. It was also occasionally used to harass kids who weren't gang members, but were black or hispanic and lived in less than middle class neighborhoods. Thing is, the Illinois Supreme Court had already declared it unconstitutional. But the CPD kept enforcing it. I guess that was Ok, because the CPD (at least a number of it's members) believed that, in their considered opinion, the law *was* constitutional, and the Courts Be Hanged. Of course, if you were white and/or "properly" dressed and/or in a decent neighborhood, you didn't have to worry. Yup. The kind of country I want to live in, one where the police get to decide the rules. The main thrust of the argument against this is that LEOs take an oath which in part instructs them to "protect and defend the constitution", and that from this they then get both the privilege and the responsibility of deciding on their own what is and isn't constitutional. But their very oath prevents this. See, in the constitution there is what is called "Separation of Powers". One branch to make the laws, One branch to enforce them, and one branch to judge. The police belong to the Executive branch. It is not only not their job--as officers of the law--to judge the law, they are not *as police officers* supposed to. They are supposed to carry out the dictates of the legislature, tempered by the courts. The common retort to this is "what if they are told to enforce a law they *know* is unconstitutional. The answer is, if the law falls into case (3) above, that being that the law is, as Dimitri is facing, a law that has not been tested, they don't know, and they have 2 options. The first option is to go ahead and enforce it, relying on the courts to sort it out, after all that is the courts job, and once the court renders it's decision (falling in to (1) or (2), then that tells them what they are supposed to do. The second option is, in the face of a law that is so obviously unconstitutional (for instance a law ordering a door to door search for and confiscation of firearms and the incarceration of the owner for example) is to hand in their badge. Now, those are the only two options *as LEOs*. Every LEO is also a citizen of this country (more or less, there may be some green card holders as police, I don't know), and as citizens, in fact people living in this country they have the right to speak out against things they find unconstitutional or wrong. They have the right to the soap box, the ballot box, and failing all those, the cartridge box. There is also the argument that there are occasionally orders that because of their immediacy it leaves the officer no time for one of those two options--for instance the case of being ordered to fire into a relatively peaceful gathering. That case has little to do with constitutionality and more to do with the legality of the order. No one is obligated to follow orders they belive are illegal, but they best be damn sure.
As for refusing to enforce laws which are personally believed to be unconstitutional, this goes on all the time, both officially [Sherriff Blah refuses to enforce law X - publicly], and unofficially Officer Y refuses to enforce law X - privately].
And for the reasons I've outlined in this post, and in my previous post, I believe both of these cases the individuals are acting improperly. In the first, the <sic> Sherriff does his constituency a disservice. If he believes the law unconstitutional he should use his office to arrange a challenge of that law, otherwise he only "protects" those under his jurisdiction while he's in office (of course, this could simply be a ploy to retain office as in every county I've lived in the Sheriff was elected.). As to the individual police officer, they have to do as their conscience and beliefs guide them. I find more often than not LEOs tend to fall on the side of enforcing laws of questionable constitutionality and tend to ignore laws they find "silly" or "annoying" rather than question their constitutionality.
How many weeks before middle schools reopen, anyway?
You and Reese good friends?