This is not a comfortable time to be a police officer. I saw my police service as a noble calling, a great responsibility to be discharged with care. I did not make an arrest without knowing precisely which violations of the law I would be charging, and ensuring that each and every element of each and every crime was fulfilled. That’s what every police officer must do. There are always political forces pulling at the police, but perhaps none more so, and none more destructively, than during the Coronavirus kerfuffle.
Across the nation, various police officers, using abysmal judgment—probably—have cited, even physically arrested, citizens for such heinous crimes as allowing their children to play in a park, wave boarding on an empty ocean, listening to radio broadcast church services while sitting in their sealed cars in church parking lots, and other heinous crimes against the whims of despotic politicians. Megan Fox at PJ Media reports on one such display of bad judgment:
In the latest egregious example of state agents enforcing unreasonable restrictions on people in the name of safety, a mother in Idaho was taken from a park in Meridian in handcuffs and charged with trespassing for playing in a park with her children. There were crowds of people in the park but no one else was arrested. Sara Walton Brady stood up for her right to be in a public park despite arbitrary rules against it issued by small tyrants in her community who think it’s fine to play on the grass, but swings are off-limits. This is the response our police officers who took an oath to uphold the Constitution gave her.
The crowd at the park wasn’t too happy about it and let the officers know it. Notice how the officers aren’t wearing masks or gloves and are violating social distance edicts themselves
‘I feel like I was singled out because I was the only person that was arrested,’ Brady told KBOI. ‘I wasn’t the only person standing on the bark. I definitely wasn’t playing on the playground equipment. I wasn’t swinging, never touched them. But yeah, I do feel like I was singled out and maybe it was because I asked too many questions.’
This is lame, and particularly damaging to police/community relations:
The police department justified what they did, claiming that Brady had damaged property by removing police tape and a sign from the park. It is unclear how many people, if any, were involved in the removal of the tape, since attendees say there were no tape or signs when they arrived, but it’s interesting to me that this can be considered ‘property damage.’
We don’t know, of course, whether officers actually saw Brady committing that supposed crime, but even if she did, that’s not the kind of thing thoughtful officers invoke for arrest. On the other side of the country, in Harris County, TX—Houston—police officers are upholding the Constitution, as Kemberlee Kaye at Legal Insurrection reports:
Harris County Judge (a nonjudicial post) Lina Hidalgo has incited the wrath of Houston’s Police Department with her “draconian” mandatory mask order.
Hidalgo is young, progressive, and embroiled in controversy for using the COVID-19 pandemic to be extra fascisty. Harris County is the largest county in Texas and the third largest (in population) in the country.
Wednesday afternoon, Hidalgo announced a 30-day mandatory mask-wearing order for individuals over the age of 10. From the Houston Chronicle:
‘The new rules, which will require residents 10 and older to cover the nose and mouth when outside the home, will take effect Monday and last 30 days, three county officials said. Acceptable garments include a homemade mask, scarf, bandana or handkerchief. Medical masks or N-95 respirators are not recommended as they are most needed by first responders and health workers.
…Under the order, the county’s 4.7 million residents must cover their faces at all times except when exercising, eating or drinking, alone and in a separate space, at home with roommates or family or when doing so poses a greater risk to security, mental or physical health.
Employers at businesses deemed essential under Harris County’s stay-at-home order must provide face coverings and training to workers whose jobs require them to come into contact with colleagues or the public.
Hidalgo has yet to determine whether to extend the stay-at-home rules, which expire April 30.’
Joe Gamaldi of the Houston Police Union, was not impressed:
The primary issue is that of law versus administrative whim. Mayors, governors and judges do not make law. Their desires and pronouncements do not have the force of law. There are some narrow exceptions, but the powers such people gain under genuine emergencies must be clearly laid out in law duly passed by the legislature, and must be limited in scope and function. Americans retain their fundamental liberties regardless of contagions. Absent such clear, lawfully established emergency powers, a mayor, or in the case of Houston, a leftist judge, can make all manner of demands, but the police have no authority to enforce them, and doing so amounts to false arrest.
It’s reminiscent of the classic scene in Woody Allen’s “Bananas.” Power deranging him, a banana republic dictator orders all citizens to change their underwear every day, and wear it on the outside so the police can check. That might work in a dictatorship, but not our constitutional republic. As more and more Americans realize the pandemic wasn’t nearly as deadly as it was represented to be, and the impetus to continue destroying the economy is political rather than any concern for the lives of Americans, they’re increasingly not in the mood for power-mad politician’s whims, and the police, as always, are caught in the middle.
During the Covid-19 phase, the same thing applies. It doesn’t matter what a sign or politician says. What matters is the law, and if there is no specific statute that allows the arrest of a citizen for failing to wear a mask, or for violating a “stay at home” order—not a law—the police don’t make arrests.
The Houston police have it right, and they have their union to protect them, but that protection isn’t universal around the nation. In many places, even officers that aren’t badge heavy–that don’t tend to unreasonably throw their authority around, thinking themselves the rulers rather than the servants of the people–find themselves pressured to enforce whims rather than laws. As the Houston letter noted, officers always have discretion. They don’t have to make arrests for every possible violation of the law. Not only is it unnecessary, it’s unwise, and in many instances, impossible.
Professional officers know just how thin the blue line is. They know the only reason they can do their jobs and survive is most Americans voluntarily obey most laws most of the time. They need the voluntary good will and support of the people of their communities. They also know carting off young mothers in handcuffs for the crime of allowing their children to play in public parks is extraordinarily dumb, and badly damages their relationship with the community. We don’t know everything those Idaho officers knew, but it’s hard to imagine what they could have observed that justified the insanely bad press their actions have generated.
Fortunately, federal Attorney General Bob Barr is cracking down on local politicians that go too far and violate American’s rights. It’s a development welcome to citizens and police officers alike.
This situation is largely unprecedented. There is no clear precedence on these matters, and various courts will surely issue conflicting decisions on the cases before them, now and in the near future. In the meantime, many officers will find themselves in bad positions. Local politicians will surely threaten their jobs and careers. But every officer that ever pinned on a badge understood that political dynamic. The smart thing for every officer to do is to use their discretion, and avoid any situation where they could be forced into making illegal arrests. Experienced officers are adept at that. Officers have the right and obligation to refuse illegal orders. They’re on the front lines of the rule of law, and trying to keep Americans from acting as free men and women—as Americans—is un-American.
UPDATE, 04-25-20, 1510 CST: Snohomish County, WA Sheriff Adam Fortney is doing it right:
In Snohomish County, Washington, Sheriff Adam Fortney is refusing to enforce the governor’s stay-at-home order. He claims the order ‘intrudes on our right to life, liberty and the pursuit of happiness.’ On April 22, he told constituents via a Facebook post that ‘along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights.’
As elected officials, sheriffs can, and often do, take stances police chiefs beholden to politicians, cannot.