Wednesday, March 19, 2008

The police state cannot happen without the police

{After reviewing last week’s post, I felt the topic of the police needed to be explored in much greater depth. If we have a police state, it will be the police who make it possible.)

There are two problems with law enforcement: sins of commission and sins of omission. A crime of commission is when individual officers themselves are guilty of offenses against individual members of the population they are supposed to serve and protect. A crime of omission is when fellow officers do nothing to restrain those officers who are guilty of the crime of commission.

People are being conditioned to not resist the government. That is why the police lately favor an “overwhelming show of force” – sending out a swat team to arrest a single individual. Often these raids occur in the dark of the night, when the targets of the raids are likely asleep and therefore disoriented and unable to react quickly to the raid by doing things such as asking to see a warrant or identifying the assailant before attempting to defend their own home. On services such as YouTube, examples of police brutality are becoming increasingly common and these examples are getting increasingly greater coverage and exposure.

But even swat raids aside people get abused in individual encounters with the police, as in the case of a motorist in Utah being tasered, or a victim of an assault being forcibly stripped in a jail cell, or many other similar incidents which may ultimately cause the police to stop allowing their actions to be videotaped.

All these incidents are good for convincing people of the futility of standing up to the police. While it is the law that if the police officer is acting in an unlawful manner civilians have a right to resist the police, exercising that right would most likely be futile. The only check remaining on police activity is civil (never criminal) cases against the police, which often stick the department (and therefore the city) with the bill. In the most egregious cases officers are disciplined, in that they are suspended (sometimes with pay, sometimes without) or fired for activities that would get anybody else arrested.

Those incidents are crimes of commission. The remainder of the problem is crimes of omission. When an officer commits one of the above offenses, fellow officers should remember that they are supposed to serve and protect the public, but instead rally behind the officer in a show of solidarity. This is often known as “the blue wall of silence”, and any attempt to punish offending officers runs up against a problem: only the government can launch criminal proceedings against those who should be so prosecuted, and those in the government doesn’t do that against their own as often as they should. Only when it becomes so blatantly obvious that government officials are protecting each other that public outcry is impossible to ignore do government officials get targeted, usually a single sacrificial lamb to protect all the rest.

Internal investigations too often clear offending officers, and district attorneys too seldom file criminal charges against criminals with badges. An honest and upright officer should arrest a fellow officer if that officer is also an offender. That is a crime of omission.

There is more to the issue of crimes of omission, an aspect rarely explored but of greater importance. In a divided government such as the United States government, the theory is that any portion of the government can impede the execution of an unjust law. Congress can fail to pass a law, the president can veto a law, and the judiciary can nullify a law. The president can also fail to enforce a law, a principle seldom examined. It is the executive branch that is charged with the task of enforcement. All front line representatives of the government are executive branch agents, whether the agent is a health inspector, a clerk handing out a welfare check, or an officer of the law. Some are representatives of the federal executive, some are representatives of the state executive, and some are representatives of the local city or county executive.

The only way laws are ever enforced is through the actions of executive agents. This is true of both good laws and bad laws. Whether enforced by a single officer or by a swat team, there is no enforcement without the action of executive agents. That applies to citations issued, arrests made, and prosecutions filed.

When onerous or odious laws are passed, it is up to the police to enforce them. Unfortunately too often the police do enforce them, as it is their job – and their job is to do their job. Suggestions that certain laws not be enforced are anathema to many people. Whether the topic is officer nullification or jury nullification the objection is always that the law, no matter how bad, must be obeyed and if one disagrees with the law there are channels within the system to change the law. That a law might be so bad that it should not be enforced is increasingly regarded as a fringe view.

The most common objection to legal nullification is framed as the nullifiers “making up the law”, which is the exact opposite of nullifying a law. When a law is made up, it means the officer or jury is creating a law from scratch to enforce. When an officer can “make up” laws it becomes possible for an officer to say “I will arrest you for the crime of depositing money into your own savings account even though no legislative body has passed such a law.” Nullification is the opposite. Nullification is the officer saying “I will not arrest you for depositing money into your own savings account even though a legislative body passed such a law.” The law is made up by the proper procedure, it is simply not enforced. There is no law creation in nullification, either by the officer or the jury.

The other objection is that the police officer might fail to arrest for actual crimes because the criminal is a close friend. That happens already. That happens every time an officer fails to arrest a fellow officer and every time a district attorney fails to file charges against an officer. It is impossible to completely eliminate all corruption from the system. If the ability of a good officer to ignore bad laws is eliminated, it has absolutely no effect on a bad officer to ignoring good laws, an argument parallel to the self defense argument of “if guns are outlawed, only outlaws will have guns.” That objection is no reason to prevent an officer from being allowed to actually think, actually make conscientious decisions regarding the laws they are called upon to enforce.

Politicians actually do not enforce any laws. Some of them, before their political careers, were in the military or the police, but currently none of them lift a finger to actually enforce laws. Many leaders of dictatorships are accused of “killing millions”, but in truth they personally killed very few people – they only ordered others to kill. None of the commanders in a war actually kill enemy soldiers; they rely on their own soldiers to do so for them. President Truman did not drop nuclear weapons on Hiroshima and Nagasaki, a pilot did. Without the police, politicians truly are impotent. The police state is truly dependent upon the police. That is why in any conflict between any officer and anyone outside the power structure, the government sides with the officer.

Those who desire a police state have two things to fear, an informed jury and an informed officer. Those who fear a police state have one thing to fear, an unthinking officer. When the police state arrives, it will be due largely to the sins of omission of the officers involved, without whom the police state would be impossible.


Earl said...

What the war in Iraq is doing is training America's new police. The war has become a training ground for dealing with domestic uprising ("domestic terrorism" if you're George W.). Combat troops are trained in Iraq then come home and get jobs in law enforcement. They are no longer the police who know you as a neighbor and friend, who would think twice before striking you. They are now the police who strike first, then ask questions -- as they were trained to do. They have become insensitive, unable to see you as a fellow American; but now see you as an enemy.

Anonymous said...

"While it is the law that if the police officer is acting in an unlawful manner civilians have a right to resist the police"

Not in Colorado:

18-8-103. Resisting arrest.

(2) It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A peace officer acts "under color of his official authority" when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.

18-8-104. Obstructing a peace officer, firefighter, emergency medical services provider, rescue specialist, or volunteer.

2) It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, if he was acting under color of his official authority as defined in section 18-8-103 (2).