Some years ago, I led an 18-member department in a small town as chief of police. I was ordered by the mayor, my boss by statute, to summarily seize another officer’s property (long story, I will spare you). I advised the mayor that to do so without probable cause or a warrant would be a Fourth Amendment violation that I refused to be a part of.
I was fired for disobeying a direct order.
I have always been convinced that no chief should serve without being willing to be fired. Should no police officer serve unless they, too, are willing to stand between the Constitution and an unlawful order?
Police officers are not only trained, but they are also enculturated and indoctrinated. The availability of tools of coercion is the very reason for the existence of the police, otherwise, social workers and bureaucrats would answer the phone instead of officers. There is no government policy, much less law, that is not leveraged by its police power to enforce compliance.
A short history of policing in America
The evolution of uniformed police in America began with the office of sheriff, then municipal police, then the state police agency entered with much political suspicion and often opposed by sheriffs. The exponential growth of federal law enforcement since the U.S. Marshal’s service now embraces over 75 federal badge-carrying, gun-toting entities.
Unlike most countries where policing is a national, unified force or a branch of the military, the U.S. resisted such an approach. The dislike of uniforms, formed by the excesses of the British Redcoats, was eventually overcome after the ubiquitous blue or gray of the Civil War. Law enforcement was a local affair governed by the voting public who could throw out a sheriff every 2 or 4 years, remove a councilperson or mayor, or even press for a recall of an elected official. The exponential growth of federal agents in law enforcement was exceeded only by the rapid growth of bureaucracies to which the legislatures granted administrative power backed by civil and criminal penalties.
A violating order
An example I am experiencing as I write this is a prohibition on a drive-in service for the church I attend during the COVID-19 pandemic. Our Governor specifically endorsed drive-in services but gave latitude to local health agencies to alter the regulations.
Our regional health department said no drive-in services for the church, after two requests with no further avenue of appeal. This department is staffed by persons hired by a board of health who, in turn, are appointed by our Board of County Commissioners. The public health order prohibits, specifically, all church events other than electronic delivery. That same order allows marijuana curbside pickup, restaurant drive-up service, and I can still walk into my local coffee shop to get a cup to go.
Frankly, since I know of no scientific evidence that COVID-19 would be leaping from car to car in our church parking lot while drivers listen on the FM radio’s short-range transmission, the order is in violation of both the freedom of peaceably assemble and the free exercise of religion and lacks the means to petition for the redress of grievances.
Here’s my hypothetical: If I were still in uniform and were ordered to cite or arrest a church leader or attender at an “unauthorized” drive-in church service, what would I do, keeping in mind that the most often heard, yet most impotent, defense at the Nuremberg trials was, “I was only following orders”?
Counting the cost
Clearly the disobeying of an order will not go unpunished. Whether you are regarded as a hero or a pariah, courageous or cowardly, there are those who will never forget your choice.
Beyond job loss, or discipline, or even prosecution there looms the reputation as a troublemaker. You may or may not be asked to be interviewed by the news media, but every idle word and every social media post will be examined for reasons to terminate you that cannot be directly pinned to your choice. Do not expect the next promotion.
Is it a matter of right and wrong or mere opinion?
Clarity of conscience is one thing, but the clarity of the rules is another. Is there a process and policy for refusing or countermanding orders of superiors? Is the thing you have been told to do a breach of law or ethics about which a court would agree?
Failure to arrest a protestor with whom you agree but who is trespassing or disturbing the peace is using your office to express your views. Failure to arrest a law-abiding protestor because the agency head vehemently dislikes the protestor’s views is a matter of principle.
Can the matter be addressed through existing channels?
There are times when citizens engage in civil disobedience for the sole purpose of generating a court case or media attention.
The motives of a drive-in churchgoer may be to sincerely adhere to religious belief about gathering together, or atheistic anarchists just wanting to “stick it to the man.” The motive of the object of our police action is of no concern to the enforcer, only whether the overt behavior gives us cause to take enforcement action.
If a controversial matter can be resolved through debate in the courts or legislative bodies, an officer’s refusal may be of no value in addressing the wrongful action of superiors or other government actors.
What is the worst-case scenario?
The issuance of $500 summonses to drive-in church attenders in the parking lot of Temple Baptist Church in Greenville, Mississippi, was received by each violator graciously from all reports, but what if one had resisted? Would the effort be worth using a TASER on grandma in her Easter best? Will the loss of amicable relations between those good citizens and the police be easily rebuilt? Will the image of an unmasked bus rider being dragged away by Philadelphia police be forgotten by summer?
The right to be left alone
As I reflected in a former Police1 article, Justice Brandeis made a famous dissent in the 1928 case Omstead v. United States in which he stated,
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”
To be clear, we understand that great powers accrue during crisis times. Whether overstated or understated, the science of the coronavirus made most of the current restrictions on our freedom of movement and commerce justifiable. We also know that litigation and legislation about those measures will continue for years. But can the uniformed officer remain silent and go about a duty that is repugnant to the Constitution at that moment, hoping for a distant resolution in the courts of law and public opinion? Each officer must examine their willingness not only to die for their duty to the public but to lose much in carrying out their ultimate duty to the Constitution.
