Imagine your supervisor walked up to you as you stood outside a convenience store and said, “arrest that man,” while pointing to a man standing near a darkened fence line. Without commenting as to why they wanted you to make the arrest, would you make the arrest? Now, if your supervisor told you that the man was homeless, had not washed or cleaned themselves in several months, was so dirty that the stench emanating from that person’s body could be smelled several feet away and permeated any material he came in contact with so bad that the material had to be replaced as it could not be cleaned, and that complaints of his foul odor actually made several people feel ill, would you make the arrest? After all, the supervisor is talking about public safety since the person’s hygiene is affecting the health of others. If the answer is “yes” to either question, then you may need to re-evaluate how you do your job.
The questions posed boil down to one issue; is the order to arrest or take action legal and lawful? Remember, you can be held accountable and liable to being sued for false arrest and even lose your job depending on the circumstances. As police officers, we are sworn to “protect and serve,” as our motto says, but is there a limitation to what we can do and do we have a duty to act? Our oath as officers dictates that we defend and uphold the laws of the United States Constitution and the Constitution and laws of the state we live in, even though some politicians are quick to say it is unlawful for us to enforce federal laws. There have been several issues that illustrate the dilemma of taking action and/or enforcing policy, directives, rules, orders or “mandates” issued by a supervisor, elected official or government body.
The “red flag” and gun confiscation laws are primary examples. Some states added the provision that a judge has to issue a warrant or order before an officer can confiscate the guns a person owns, while other states made the laws less stringent. The problem with some of these laws is that anyonecan file a complaint against a person claiming that person is a danger. The inclusion of signing an affidavit with the threat of prosecution for committing perjury is also supposed to protect people’s rights from former spouses, girlfriends or angry neighbors. However, the veracity of the “evidence” presented in those affidavits is not investigated and considered prima facie evidence, meaning if they say it happened, then it happened, and the involved person ends up spending time, money and stress going through the legal process to prove their innocence. It was not until the Supreme Court ruled in Caniglia v. Strom (953 F. 3d 112 [2020]) that the red flag laws were struck down if a warrant was not issued. As Justice Thomas wrote for the unanimous court, “law enforcement can execute many civic tasks in modern society, but there is not an open-ended license to perform them anywhere.”
Every state has a statute that directs every law enforcement officer to do their job. Michigan’s law (752.11 Upholding or enforcing the law; duty of public officials. Sec. 1.) states, “Any public official, appointed or elected, who is responsible for enforcing or upholding any law of this state and who willfully and knowingly fails to uphold or enforce the law with the result that any person’s legal rights are denied, is guilty of a misdemeanor.” The onus of these laws is how do their supervisors interpret and define “willfully” and “knowingly” to find fault with the officer and the officer’s belief they have no choice but to follow the orders of their superiors or face some type of administrative or punitive action.
The saga of Army Lieutenant William Calley and the My Lai massacre in Vietnam is a prime example of blindly following the order or request by those appointed over you when what they are asking or ordering you to enforce or do may not be legal or lawful. Though the superiors stated they gave no such order or that Calley misconstrued the orders given, Calley and others stated they were under orders and felt duty-bound to follow those orders. Basically, would you follow the orders of a superior if the order was contrary to your ethics, morals and values, or you believed it violated the law or a policy? Sometimes, an officer or LE cannot wait on the courts to decide and must instead be steadfast on a position based on common sense and their knowledge of the laws, rules, regulations and policies. I have had several instances where I refused the order of a sheriff or general because the order was contrary to my ethical compass, military regulation or the law, and I rode the tsunami to prove I was right.
The legal argument of whether law enforcement has a duty to act was first addressed in South v. Maryland (59 U.S. 396 [1855]) and established the public duty doctrine. In Warren v. District of Columbia (444 A.2d 1 [1981]), Judge Hanson wrote for the D.C. Court of Appeals and based their decision on “the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen.” This doctrine was then supported in DeShaney v. Winnebago County DSS (489 U.S. 189 [1989]) when SCOTUS stated, “a state’s failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the clause imposes no duty on the state to provide members of the general public with adequate protective services.” SCOTUS then reiterated law enforcement does not have a duty to act in Castle Rock v. Gonzales (545 U.S. 748 [2005]) when a restraining order was not enforced by LE. The Public Duty Doctrine was succinctly explained in McGaughey v. District of Columbia (No. 11-7001 [D.C. Cir. 2012]), when the U.S. Court of Appeals stated, “The public duty doctrine has long protected municipalities from negligence claims because it establishes that “[t]he duty to provide public services is owed to the public at large,” not to any specific individual.
The mandate of wearing a mask is a perfect example of conflicting interpretations of the power and authority a governing body has on the citizens. Some municipalities have queried the idea of having LE enforce the mandate issued by the federal government. Enforcing an action such as not wearing a mask is not codified in law, so LE does not have an actual law with a title and elements of proof to charge a person, so how can LE arrest, detain or take action against a person without violating their 4th Amendment right of unlawful seizure? SCOTUS upheld a federal court that suspended the mandate by the government that all employees had to wear a mask. To enforce the mandate anyway, the government then went to the Occupational Safety and Health Administration (OSHA) to use that agency’s authority for workplace safety to enact and enforce the mandate.
Alexander Hamilton, James Madison and Thomas Jefferson authored the U.S. Constitution for consideration and approval of the delegates, and Thomas Jefferson penned it. In the Federalist papers Federalist 78, Alexander Hamilton wrote:
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
What Hamilton meant was the intent of the founding fathers was that Congress shall make no law that is contrary to the intent and meaning of the Constitution. Though the language is not specific in the Constitution, Jefferson ensured “we the people” had redress via the courts. American history is replete with examples of individuals and states using the courts to rescind, change or interpret laws, directives and mandates by the federal government.
Every LE agency, senior leader, union and police officer must know when a law or order is lawful and legal because failure to do so fails the people we are sworn to protect and our oath of office. If LE and its agents enforce the laws, orders, directives or mandates by superiors and government officials without applying common sense and critical thinking skills to justify following through, then LE and its agents could be violating the rights of the people by agreeing to be used as the baton to ensure everything is adhered to. By going along with or blindly following the orders, directives, mandates or laws of those appointed above us, LE becomes an agent of oppression, suppression and tyranny simply because we’re doing what we are told.
