Cops who say 'no'


Yes, police do have an obligation to consider the morality
of the laws they enforce

Dateline: 2/26/01

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 to complicate 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.
Source:
http://civilliberty.about.com/newsissues/civilliberty/library/weekly/aa022601a.htm 

APFN