Is It Right?

Make no mistake, I am 100 percent in favor of putting as many bad guys, especially felons, in jail as possible and using technology to every constitutional advantage to do so. I cut my teeth on a department that believes our most important job is taking criminals off the street and I have never found a reason to deviate from that. There is, however, a concern several readers have written to me about. That concern is that our government, and consequently many of our law enforcement agencies, is crossing the fine-but-critical line between catching crooks and violating the protective provisions of the US Constitution. The question posed is simple: Is it right?

Expatriate Act?

I believe the most basic responsibility of law enforcement is to protect the constitutional rights of every citizen. It’s this duty that mandates we arrest those who commit crimes, as those we serve enjoy a constitutional right to be safe and secure and not victims of those who would prey on them. What seems critical, however, is the need to avoid violating the Constitution in order to meet this responsibility. Several recent legislative endeavors, as well as the potential reckless use of certain technology, threaten to do exactly what the Constitution was designed to prevent.

There are proposed expansions of the “Patriot Act” (an act that in its original form I support), which would seem to detract from one’s Fourth Amendment rights regarding search and seizure. In particular, proposals related to accessing — without a warrant — electronic postings and communications by ordinary, law-abiding citizens. I have a problem with that. There are other proposed amendments to the act that, in my mind, more reflect the sort of controls desired by a dictatorship than a true and ongoing concern for the very rights upon which our nation was founded. Would expansion of the act make law enforcement’s job of arresting and prosecuting real bad guys easier? Maybe, but at what cost? If the cost is allowing for lazy, sloppy police work, or an abridgement of the First Amendment rights all citizens are entitled to, I don’t favor it.

Unlike the current president claiming he was a professor of Constitutional Law, I make no such claim. My view of this issue is not that of a lawyer, but of a cop who took an oath and took it seriously. I balk when I see proposals that appear to fly in the face of what our nation has always been about. I care too much for what this nation has always stood for, earned by the blood of our troops and our cops, to favorably view any effort, legislative or otherwise, to turn it into a form of government other than a Constitutional Republic.

Orwellian Leanings

One reader who raised concerns about the amendments to the Patriot Act also had concerns regarding the (mis)use of technology available to law enforcement today. As we’ve pointed out in the past issues of this magazine, some of what cutting-edge technology offers is yet to be tested in the highest courts of our land. It behooves us to tread cautiously in the use of some of this technology and to balance its use with the rights we enjoy as citizens.

The focused use, based on probable cause, of drones or UAVs is certainly a cost-effective and appropriate use of what modern technology offers us. A “fishing expedition” approach using such surveillance gear to capture a broad array of data for later filtering to determine if something illegal was captured is both problematic and inappropriate. There may be some who think I’m overreacting, but when I first read Orwell’s book 1984 decades ago I didn’t like what it predicted then, and I sure don’t like it now.

The notion that government — law enforcement in particular — should engage in spying without probable cause smacks too much of the very sort of governments that we have combated abroad for generations. I’m not at all anxious to see such an approach used in what has always been the freest country in the history of the world.

Founding Fathers Guidance

Last year, American COP’s publisher Roy Huntington asked if LEOs would be willing to confiscate firearms if ordered by the government in violation of the Second Amendment. An overwhelming number of respondents not only said no, but hell no. Given the current political effort to subvert the Constitution, I sense we may be facing hard decisions relative to the Fourth Amendment as well.

All of us in law enforcement have had to ask ourselves from time to time whether a particular action we’ve contemplated taking is ethical and legal. I believe this sort of question will become more common in the future. Hopefully the system won’t force us to make a choice between doing what’s right or leaving the profession. When such moments of truth arrive — and they will —the words of Thomas Jefferson will be helpful: “If a law is unjust, a man is not only right to disobey it, he is obligated to do so.”

Questions, comments and suggestions for future
columns can be sent to Jerry at [email protected]