Pandemic Policing and "Police Nullification"
This article was featured in the November 2020 edition of American Police Beat Magazine.
The last decade has been a wild ride for the law enforcement profession. The riots and nationwide lash-out that followed the incidents in Ferguson, MO led to a new emphasis on community-oriented policing. Departments all around the nation scrambled to cast themselves as “community policing agencies”. New programs sprang up, intended to help officers view themselves in ways that emphasized relationships with their local community. Terms like “guardian” or “peace officer” were emphasized, often in lieu of earlier terms such as “warrior”. Whether these efforts were each right or wrong, it certainly led to a renewed emphasis on the importance of local law enforcement maintaining quality relationships with the communities they were sworn to protect.
After all of the blood, sweat and tears that cops have put into this effort, law enforcement officers find themselves (in many cases) as the designated enforcers of numerous forms of local or statewide coronavirus lockdown orders. To varying degrees, local and state governments across the US have issued legally binding orders for their citizens to stay put in their homes, under penalty of law. In most cases, the duty to enforce those orders fall upon local cops. They find themselves tasked with the often-unpopular duty of citing citizens who choose to venture forth from their homes on “non-essential” matters, gather in groups, or even run their businesses.
The law enforcement response to this has been as varied as the communities that comprise our great nation. A law enforcement writer on a popular police website called upon his fellow officers to proceed cautiously, remembering their oath to uphold the Constitution. A Port of Seattle Police Officer decided to create a viral video of himself castigating any officer who chose to obey orders and enforce any kind of restrictions. By making the video in uniform and in his patrol car (complete with the police radio blaring in the background), he cast himself as the spokesman for his agency and the profession. On the other side of the spectrum, some law enforcement leaders have wholeheartedly embraced this new role. Some agencies are pulling people over, writing citations, and even setting up roadblocks. Others have been less than cooperative with the idea. A small-town chief in Massachusetts put the local health department on notice, letting them know that he’d enforce any trespass complaints he received against them from local business owners.
The most vocal protests (or outright defiance) have come from sheriffs. Most police chiefs are appointed, and the vast majority of them answer directly to either an appointed city manager or elected mayor. So many of the law enforcement actions of these leaders are actually dictated by a non-sworn official behind the proverbial curtain. Sheriffs, on the other hand, are typically elected and answer to no one in terms of a chain of command. In many places, the citizens that put them into office may not necessarily be in favor of a lockdown. In Dupage, Illinois, the sheriff announced that his office would have no part in enforcing the Governor’s emergency orders. Put simply, he “(wasn’t going) to be anybody’s boogeyman.”
Wherever each of us may stand on the appropriateness of the various emergency orders that have been put in place, it’s probably a good time to give consideration to the overarching part of this issue. I call it “Police Nullification”. It’s the idea that individual police officers (or entire agencies) might nullify a law by simply refusing to enforce it. It’s not a new issue, either. I’ve been a police officer for fifteen years, ten of which have been as the leader of an agency. Every time the political climate has a hint of gun control legislation, there is usually a parade of sheriffs who make public declarations that they will not enforce any such laws. The justification generally given is that the officers in question took an oath to uphold the Constitution, and they consider the law to be unconstitutional.
This view may be extremely right, or extremely wrong. For most of us, our stance on the good sheriff’s action will depend upon whether or not we like the law he’s vowing to ignore. There’s most certainly a place for debate over the wisdom of any potential law, but it’s also worthwhile to examine the pros and cons of whether a law enforcement official should be ignoring a law at all.
Almost every law enforcement officer takes some kind of oath upon assuming office. That oath almost certainly includes some reference to defending the Constitution. By requiring that oath, it is clear that the system requires some decision and accountability at the individual level regarding these issues. Furthermore, it’s just a plain-ole good idea. People blindly following orders is rarely a good thing. I wish that more law enforcement officials in Germany had refused orders during the rise of the Nazi regime. I wish that more lawmen in the south had refused to enforce the abhorrent Jim Crow laws that oppressed so many people of color.
On the other hand, police nullification, if used too liberally, can cause a lot of problems. At best, it will make for a disjointed and ineffective governmental system. At worse, it lets individuals usurp the Constitutional authority delegated to others. The same Constitution that enumerates whatever right an officer may feel is being trampled upon also lays out a system of government. It very clearly calls for a separation of powers. While the Executive Branch (the category of which law enforcement officers would fall) carries out the laws, it falls to the Judicial Branch to interpret them. The Legislative Branch, of course, creates the laws in the first place. Most state constitutions echo this concept of separation of power, and for good reason. The founders knew that power corrupts, and they intentionally designed a system that kept any one person or group from having too much of it. When a law enforcement officer takes it upon him or herself to decide something isn’t constitutional, they’re deciding something that should ideally be decided by a judge. If they become too carefree with deciding what they will or won’t enforce, they may even tread upon the duties of the legislature, essentially deciding what the actual law (in practice) will be.
Consider for a moment some of the ways that the courts have influenced the evolution of law enforcement practices. Without various sweeping court decisions (or laws passed at both the state and national level), things might look very different. Mapp v. Ohio dictated that evidence had to be properly obtained in criminal cases, while respecting an individual’s constitutional rights. In Tennessee v. Garner, the Supreme Court articulated that a cop couldn’t shoot a suspect just because they were running away and had committed a felony. These are good changes, and I wouldn’t want to live in an America without them. I’d hate to think what life would be like if the cops at the time had just chosen to ignore them.
If it sounds like I’m talking out of both sides of my mouth on the subject, it’s because I am. There is no clear line of right or wrong on this subject. Rather, it’s a tension to be lived in. There is absolutely a place in our democracy for individuals to simply refuse to comply with inappropriate or unethical laws. And it’s not just cops who have to make these decisions. Much of the sweeping progress brought by the Civil Rights Movement was the result of individuals refusing to acknowledge and comply with unjust laws. There is most certainly a place for it in our system. The individuals who conducted these acts of civil disobedience were so sure of their cause that they knew they were objectively right. Those that choose to ignore laws are stepping outside of the system and taking a great responsibility upon themselves, personally. There’s a place for cops to refuse to enforce laws they believe to be unjust, but they need to be equally sure that, they too, are morally right. It shouldn’t be a flippant (or politically expedient) decision. Nothing less than our democracy is at stake.
Petrishen, B. (2020, May 20). telegram.com. Retrieved from https://www.telegram.com/news/20200520/open-up-my-town-west-boylston-police-chief-tells-worcester-dph-in-email
Policeone.com. (2020, May 19). Retrieved from https://www.policeone.com/coronavirus-covid-19/articles/im-not-going-to-be-anybodys-boogeyman-sheriff-wont-enforce-covid-19-order-as-criminal-offense-2TeysYsxvhIQt1cU/
Snively, D. (2020, April 2). Officer.com. Retrieved from https://www.officer.com/command-hq/article/21132483/criminalizing-conduct-and-mobilizing-the-police-the-bounds-of-legal-authority-during-crisis