PROBLEMS AND SOLUTIONS UNIQUE TO LAW ENFORCEMENT Part X
Chuck Klein © 2022
God Bless America
And our troops, law officers
and all of Her guardians.
Land that I love
Those who know this love
are truly the Blessed People.
Stand Beside Her, And Guide Her,
As God stands to safeguard us,
we stand to protect the Blessed People
while bowing our heads in thanks
for His protection and guidance.
Thru The Night With A Light From Above.
Day shift to mid-watch to night shift,
we are humbled by His radiant
supremacy and power.
From The Mountains, To The Prairies,
Forging straight up from the
great prairies of gilded grain,
like a church spire paying homage
to the heavens, to symbolize our faith in Him.
To The Oceans, White With Foam
Seas of Blessed People of all colors,
each seeking the purity only He can bestow.
God Bless America, My Home Sweet Home.
May God continue to bless
the Blessed People
and their protectors as this
is our homeland forevermore. (1)
PREFACE
After a search of Google and multiple dictionaries, this writer was unable to come up with a concise and definitive definition of the phrase Law Enforcement Officer or Police Officer. Sources for these terms extensively defined what LEOs did/do or what was expected of them, but no actual meaning of the combined words. This might be part of today’s problem facing communities and their LEOs. Perhaps, a public relations campaign might aid in understanding police related issues. Therefore, for the purposes of this treatise, let this be the definition:
The American Law Enforcement Officer is a man or woman epitomizing theologically inspired (2) moral and ethical values including the inherent traits of bravery and common sense; entrusted by a physical-boundary-set political division of society with the authority, duty, obligation and power to maintain tranquility, protect property and persons and investigate and arrest anyone violating the codified laws of this physical-boundary-set political division.
American Police Officers are NOT the enemy; nor are they hand-holders, social workers, jack-booted-thugs or heroes. However, evil-doers may deem them the enemy; they may become hand-holders when comfort is needed or social workers when helping the indigent and even jack-booted-thugs when breaking down doors to protect the protetees from evil doers … and when heroic acts are required, they’ll be there.
Whether peaceable or confrontational the
American Police Officer
does not adjudicate interactions
based on race, color, creed, beliefs,
sexual orientation or national origin.
Are we community operatives, security agents or American Police Officers? There is a difference in who and how we are perceived not only by our own consortium, but by everyone else. It seems clear that politicians, many police chiefs and the public, per se, have assorted opinions and views on the definition. A look back at unique, historical campaigns that could be adopted to police work along with some new concepts might be a solution to answering the question and surviving the attacks by well-intentioned, but possibly misguided, powers. "Public relations is a strategic communication process that builds mutually beneficial relationships between organizations and their publics." (3) A unified front in any battle is generally more successful than splintered factions.
American Police Officers are facing unprecedented challenges to their image that might best be alleviated by a public relation campaign. This acerbated perception (4) has been propelled by a small contingency of malcontents spread out over the entire nation. It appears this venom has been perpetuated via social media that was picked up by and given legitimacy by the general media and some politicians. This un-American venting includes: , Political Correctness, Cancel Culture and Critical Race Theory. (5) Whether these concepts and statements are true is not the point of this dissertation; only to recognize them as a force that has allowed a hurtful and negative belief in the image (and in turn the effectiveness) of the nations’ keepers of the peace – and for the purpose of fostering countermeasures.
GOALS & ASPIRATIONS
Responsibilities of an American Police Officer are varied, and may differ greatly from within one political subdivision to another. Typical duties relate to keeping the peace, law enforcement, protection of people and property and the investigation of crimes. In addition, officers are expected to respond to a variety of situations that may arise while they are on duty. Rules and guidelines dictate how an officer should behave within the community, and in many contexts, restrictions are placed on what the uniformed officer wears. In some countries, rules and procedures dictate that a police officer is obliged to intervene in a criminal incident, even if they are not on-duty. Police officers in nearly all countries retain their lawful powers while off duty.
Society’s goals, objectives and even morals and ethics change with the political winds of the time. Though police functions and duties have tended to resist these changes, who and what a police officer is has not. Until more recently, policing has been the granite boulder, the wall, the standard to which society, per se, has relied upon to keep check on its (society’s) directions if by no other reason than reflection, e.g., seeing themselves as they should be and how they should conduct themselves. During the past decade an escalating push by significant portions of the populace have been working to bring policing in line with the social makeup of local, as well as national structure and character. In other words, elected officials, reacting to society’s pressures, have come to believe that if police agencies are representative (proportionally by race, creed, religion….) of the community they regulate, all of society’s problems (crime, discrimination, racism….) will disappear. That’s a great goal and wish, but it’s only Pollyannaism.
LEOs goals and aspirations are based on arresting criminals and keeping the peace – words or wording to that effect are in most state’s bylaws. As non-related law enforcement issues such as homeless, illegal immigrants, drug over-dosing, suicides, juvenile concerns; the political arms of society have more and more tried to make these matters a problem that should the responsibility of the police. The result has been to over-train LEOs – trying to mold them to become social workers, drug interdictions saviors – everything providers - all of which tends to reduce their effectiveness (time available) to enforcing the law.
HISTORY
Back in the 1950s, fledgling hot rod clubs were branded as dangerous, reckless and criminal. Such Hollywood productions as The Wild One, Rebel Without a Cause, Hot Rod Gang, et al., depicted guys (there weren't many female protagonists) flaunting the rules of the road as they raced and crashed on the public asphalt. There were, however, a significant number of hot-rodders who just wanted to legally race their souped-up cars on dedicated dragstrips. The problem was convincing local governments and financial backers that the building of a dragstrip would allow these hot-rodders a place to race other than on the street. One method these operators and builders of tire-smoking machines used was to improve their image by having members of the clubs drive the roads looking for motorists who had run out of gas, broken-down or had a flat tire (cars and tires were far less reliable back then). The member would aid in any way possible and then issue a courtesy card with wording to the effect: "You have been assisted by a member of the _______ Hot Rod Club, a car club dedicated to safety". Soon the word spread, with the help of favorable media coverage, that these speed enthusiasts might not be so dangerous after all. Some clubs had rules that if a member was ticketed for speeding or racing on the streets they would be tossed out of the club. As to the impact of the courtesy cards, that is subjective, but drag strips did proliferate. The writer was a member of the Knights of the 20th Century hot-rod club, and in conjunction with The Southern Ohio Timing Association, used these cards to help convince the Cincinnati City Council to allow construction of a drag strip in 1957.
In the late 1960s and early 1970s police, per se, were being subjected to attacks on multiple levels including radical anti-police groups such as the Black Panthers, Students for a Democratic Society (today’s Wokeness) and The Weathermen. (6) Anytime police were observed interacting with civilians, it was often assumed the cop was either harassing someone or fulfilling proverbial and non-existent quotas This perception has carried over to today. Negativism toward American police officers has been exacerbated by the ubiquitous cell phone videos of a few violent acts of cops misusing their powers resulting in LEOs taking a hammering not only in the main-stream press, but by legislative operatives who are responding to public (social media) pressure yielding public relations that has not been favorable. Traditionally, during non-criminal encounters police issue verbal warnings, formal written warnings or just say words to the effect, “have a nice day”. Some officers hand out conventional business cards that displayed the agency’s contact and the officer’s name – the viewing public almost never knows of these informal and user-friendly contacts.
SUGGESTED SOLUTIONS
1) Courtesy Cards: Taking a page from the hot-rodders playbook, police departments could issue Courtesy Cards (2”x3” +/-) to each officer that includes on its face a place for department’s ID, the officer’s name and contact info. The reverse would have boxes to be checked with wording to the effect:
You You have been assisted by a member of the ______ Police Department. Any comments or suggestions you might have will always be welcome.
Your motor vehicle is parked in a dangerous position and as such is a violation of local laws. Please park in a safer location in the future. Thank you.
You have been detained for a violation of a local law causing your safety as well as others to be in jeopardy; please be more careful in the future.
You have assisted the ________ Police Department. Thank you.
Rather than issuing verbal or formal warnings and thank-yous, this informal “courtesy card” will not only show the observing (videoing) public that some form or written action is taking place, but the person receiving this casual note will be more appreciative – all good for public relations as well as getting a positive message across. The courtesy card gives the LEO a non-confrontational option that leaves the civilian with evidence that he or she was not cited while at the same time demonstrates to observers that a written record was being made. In other words, witnesses will assume the person detained was not getting away with something. To the recipient of such a “courtesy card” it will serve the purpose of showing a softer side of policing. As word spreads by various media, a police officer might be able to say – to quell a confrontation – “Do you want me to issue a Courtesy Card or shall I proceed with a ticket/arrest?”
2) Weekly Newspaper-style Column/social media Posting: There are many aspiring writers and illustrators available due to the downsizing of print newspapers creating a significant number of qualified but untapped talent available. A police agency might open its blotter/cold cases to a select few unpaid volunteers to produce a regular “This is Your Local Police Department” newsletter. Possible columns could include cold-case info that might trigger someone’s memory or conscience to come forward. Other options might include:
* Illustrated, police-intensive short fiction stories that paint LEOs in a favorable light;
* Interesting closed cases;
* Verbatim selections of the criminal and traffic laws;
* A portion of each column could contain a list of legal terms, police jargon, radio codes;
* Something well done by a local LEO that is not normally reported in the main-stream media.
In addition, the column could be a format for requesting their readers and editorial boards – periodically - to ask for response to the question: “What would you do if you were the police chief of _____ (the world)?” “What changes, regulations, qualifications of recruits would you like to see implemented?” Getting the public involved by soliciting citizen input might be a big assist, but only with the caveat: No whining, complaining, fault finding, name-calling – only suggestions on how to improve the workings of law enforcement. A picture (illustration), as the saying goes, is worth a thousand words. Graphics, created by local artists depicting positive images of LEOs would be an added benefit not only to LE, but to the public as well as the illustrator.
In conjunction with or separate from this column, an up-and-coming lawyer might be encouraged to pen general legalities on various police issues for this column. On a local level it might work well to have the legal column co-written by a municipal or sheriff’s PR officer. For the national stage (USA Today, NYT, WSJ), writings by a representative of interchanging federal LEOs (FBI, ATF, DHS, etc.) might be most beneficial. The editors of the major publications surely know the importance of LE – they just might need a little prodding to convince them that it’s their personal and family’s safety that is at stake, also. A letter on NACOP stationery seeking their help could be a game-changer for all.
3) Marketing: “Advertising has the power to create awareness, the power to set the agenda, the power to suggest and influence, the power to convey new information, and the power to persuade.” (7) I might add … and the capability to change attitudes, images and beliefs. The 1st Amendment to our Constitution clearly states: “Congress shall make no law ... abridging the freedom of speech....” (8) Though not an absolute, every citizen (includes members of NACOP) is allowed to speak and write his or her thoughts freely without fear of government reprisals or restrictions. Therefore, nothing precludes police chiefs from requesting others to devote time, space and money benefiting the images of LE.
Of course, commercial advertising is expensive and not in the budget of even the big-dollar departments, but that doesn’t mean police agencies couldn’t utilize this power of marketing by soliciting funding, artwork and editorial messages from private and publicly owned corporations. Suppose, for example, a major advertiser (GM, P&G, Anthem, Google….) could be encouraged to purchase space on Facebook, Netflix, etc., or even outdoor billboards with creative graphics and simple wording to the effect: “Thank you, American police officers” or “American Cops – are the world’s best” (with or without a credit line to the buyer of the ad). Advertising agencies and greeting card companies would be excellent sources for the text of these unpretentious, entertaining and non-threatening communications – say an ad showing the Ghostbusters being subjected to criminal aggression – with the subtitle: “Who ya gonna call”. Ad copy is the key to any successful campaign.
The most effective ads are simple, to wit: The Volkswagen was the “People’s Car” of Nazi Germany and this image limited export sales well into the 1960s compelling an ad campaign to change their image. Ads began appearing in magazines and billboards such as the ones showing the regular “Beatle” accompanied by just two words: “Gas Pains?” Or the VW Mini-bus filled with nuns in full habits with the caption: “Mass Transit”. Honda faced the same obstacles when trying to promote their motorcycles to the non-Hells Angels types. Their ads in similar distribution displayed a brightly painted motorcycle with whitewall tires being ridden by preppy-types and even Santa. The copy read: “You meet the nicest people on a Honda.” There is no question these campaigns changed images and gained support that resulted in a reversal of public perception of once questionable product images leading to economic success of the corporations. (9)
Consider ads developed to redefine Woke (call it Wake) to mean: To be aware of and resist/protest injustice instigated by a small minority of misinformed citizens. Reclassify Cancel Culture (call it American Culture) as: Engaging in praising/supporting police officers. Political Correctness redefined….
Formats of these local and or national ads could be published in any and all types of media including, but not limited to: social media, radio, TV as well as display ads in newspapers such as the Wall Street Journal, New York Times, USA Today, People Magazine, Mother Earth News…. The goal being to reach a large and diverse audience. Inasmuch as this advertising space is tax deductible, the buyer of the ads will be making for a safer community; safer for them as a corporation as well as safer for their employees and customers. These subtle, image generating messages should, of course, be in conjunction with NACOP’s blessings.
Marketing doesn’t have to be exclusively to the civilian world … an ad campaign in police journals such as Police Magazine, American Police Beat, FOP Journal, et al., with positive and encouraging messages/images (not long-winded editorials, but short, concise targeted ads) could be most beneficial in keeping the proud, proud. After all, we’re not perfect and reminding ourselves of this shows we know and are addressing our short-comings, serving the dual purpose of letting our detractors know we know.
4) Religion: Inasmuch as the First Amendment, in addition to freedom of speech, also guarantees freedom of religion, (10) perhaps NACOP could generate an on-going letter writing campaign to religious organizations encouraging them, as they preach adherence to the laws of G-d, to also include pontificating the importance of complying with the laws of man and those who are responsible for applying these edicts to maintain peace and protect us. There are many on-going faith-based programs between cops and pastors aimed at acclimating and educating LEOs to understand religious groups. (11) The suggested program would be different inasmuch as the religious leaders would be requested to merely tender to their parishioners the importance of supporting LE, obeying the laws of man and accepting that even police are not perfect. The power of the pulpit cannot be denied especially when multiple faiths, races, and political powers are captive audiences. The anti-police crowd would be hard pressed to come out against their pastor.
5) Applications: Police scanners are mostly utilized by the media and require hardware usually in the form of a handheld special radio. Cell phone companies might be encouraged to create software Apps for smart phones to grant citizens the ability to listen to police calls (local, state, federal) allowing greater transparency. This ability to hear direct communications from police dispatchers (not necessarily officer’s individual channels) could greatly enhance faith in official police parlance and acts. Building in a time delay to preclude townsfolk from responding to details before police have secured/cleared the scene could be a requirement.
SUMMARY
Applying a definition to the term Police Officer/Law Enforcement Officer is a step in identifying the problem. Portraying this definition to the public is the next step in re-establishing the image of our most sacred defenders. Suggestions on how to accomplish this include: encouraging/partnering with electronic means to develop smart phone apps; Seeking educational direction from clergy; Marketing via many sources and methods and utilization of a “courtesy card” to be issued by LEOs when appropriate.
About the Author: Chuck Klein is a former police officer, licensed Private Investigator (ret.), active member of International Association of Law Enforcement Firearms Instructors (IALEFI), former Level 6 firearms instructor for Tactical Defense Institute (www.tdiohio.com), author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution; POLICE (definition portion of Encyclopedia of Science, Technology and Ethics, Macmillan Reference USA, an imprint of Thompson Gale ISBN 0-02-865991-0). Information about his books and e-mail contact is available on his web site: www.ChuckKleinAuthor.com
NOTES
(1) Lyrics by Irving Berlin, Annotation by Chuck Klein. Return
(2) This is no more a government endorsement of religion than acknowledging G-d on the face of our currency, as part of our Pledge of Allegiance and is always an option in oaths of office or court testimony. Return
(3) Grunig, James E. and Hunt, Todd. Managing Public Relations. (Orlando, FL: Harcourt Brace Jovanovich, 1984). Return
(4) A belief or opinion, often held by many people and based on how things seem: a thought, belief, or opinion, often held by many people and based on appearances: Cambridge.org/us/dictionary Return
(5) Woke: To be aware of and resist/protest injustice in a nation/system one believes to be unjust. Political Correctness: Verbally bashing others for holding opposing views. Those who don’t join in are also targets regardless of truth, fairness or objectivity. Cancel Culture: (Political Correctness on steroids). Engaging in abandoning/trashing physical, written or verbal historical content such as libelous postings to social media, destroying statues and/or anything deemed to be not acceptable by Political Persecutionists. Critical Race Theory: A concept that promoters believe K-12 students should be taught that America has been and still is inherently racist. Return
(6) This period of nation-wide racial tension gave impetus to the rise of the Black Panthers a nation-wide racially divisive and gang of angry, violent, black men who vowed to kill LEOs (black or white) - and did. https://www.britannica.com/topic/Black-Panther-Party. The SDS (least violent of the anti-authority groups), held a passionate, if somewhat naive, belief that a nonviolent youth movement could transform U.S. society into a model political system in which the people, rather than just the political elite, would control social policy. The Weathermen were an off-shoot of the SDS bent on violence to change America. https://www.mtsu.edu/first-amendment/article/1201/students-for-a-democratic-society Return
(7) https://www.decisionanalyst.com/services/powerofadvertising/ Return
(8) The 1st Amendment: https://www.chuckkleinauthor.com/Page.aspx/380/america-s-framework-for-freedom.html#12 Return
(9) Volkswagen Ads Honda Ads Return
(10) ibid The 1st Amendment Return
(11) Few police officers are religion experts. Desert News, 31 Jul 2019 https://www.deseret.com/indepth/2019/8/1/20755777/few-police-officers-are-religion-experts-that-can-create-big-problems#pope-francis-is-greeted-by-philadelphia-police-commissioner-charles-ramsey-as-he-arrives-at-philadelphia-international-airport-in-philadelphia-saturday-sept-26-2015 Return
*****************************
Chuck Klein © 2022
Oh, say can you see
American police officers standing tall
What so proudly we hail'd
Saving those from oppression, violence and crime
through the perilous fight … so gallantly
Forsaking their own safety to bravely protect Americans
O'er the land of the free and the home of the brave
Our valiant police officers keeping our homeland safe and free.
PREFACE
Though we can’t predict the future, we can prepare for eventualities. This article addresses some LE problems, but not solutions for all as many issues are tendered by presenting the problem as questions because answers depend on individual agency concepts.
For generations, statements to the effect that police, firefighters and military personnel, whether active, part-time, or retired, are heroes to whom all thanks and gratitude is due for honoring us with their service. Truth is: cops run to gunfire, firefighters enter burning buildings and soldiers face the enemy not out of duty, but because they believe their personal safety is secondary to those they are charged with safeguarding. Reality is: they would rather be a dead hero than a live coward; to their compatriots, cowardice is a fate worse than death.
As a former law enforcement officer and firefighter, I’ve always found those who volunteer for LE, firefighting and military positions do so more for the comradery, excitement and prestige. To them, knowing that the person you’re standing shoulder to shoulder with knows you’ve got their back regardless of the danger is the ultimate level of trust – being part of an ethical, honorable and exclusive segment of society is the driving force. Lofty aspirations of service to the community are way down the list (at least when you’re young), regardless of official and public sound-bites.
HISTORY
Danger and hazardous duty have always been related to police work, but it wasn’t until Columbine that it became apparent that concerns for officer safety were over-prioritized. The Jefferson County (CO) Sheriff, on national TV stated he didn’t send his officers into the school building because he didn’t want any of his officers hurt. (1) This was followed by another police chief writing: "Most officers have families, just like everyone else. Their main goal is to get home safely at the end of each shift, and I agree with that philosophy 100 percent" (2). Soon thereafter, the police community took a close look at themselves and, thankfully, realized the “main goal” is to see that those they have sworn to protect got home safely. We’ve moved on from Columbine, now it’s time to move to the next level(s).
A cop’s job has inherent dangers, but according to the U.S. Department of Labor, the top ten fatal work injury rates per 100,000 full-time equivalent workers (2019) (3) doesn’t include police officers. However, it stands to reason that if there was a list of civilian workers intentionally injured or killed, cops would not only top the list, they’d be the only ones on the list.
In the Fall 2019 issue of THE CHIEF OF POLICE (Police Ethics and Lethal Force in the 21st Century), I wrote about overcoming fear by referencing the 1950s movie, High Noon. The message this Hollywood production sent was the epitomizing of the basic concept of American LEOs: The duty, obligation and personal creed that separates us from everyone else – making safe those we are sworn to protect. The story line (below) is worth repeating inasmuch as it also portrays the very essence of what being a cop is all about – the safety of others and not about personally staying safe.
No one is saying or expecting LEOs to sacrifice their life, but each officer has the duty to protect the public during lethal force encounters. The very nature of the police occupation is centered around perilous activity. If the work involved only taking reports, directing traffic and calling in a SWAT team when danger appears, the job could be done by social workers or clerks.
In the High Noon movie and on his wedding day, the Town Marshall (played by Gary Cooper) learns a man he sent to prison is returning on the noon train – the ex-con and his three fellow thugs are bent on revenge. The Town Marshall is torn between leaving on his honeymoon, as planned, or staying to face the perps – to honor the ethics of his position. The town selectmen tell him, in so many words, “stay safe” go on with your travel plans. The Marshall plans to swear-in some deputies and this show of force should be enough to quell the worries of the townsfolk. Things don’t work out quite as planned and this lone cop ends up facing the four violent criminals alone. The “safe” path surely would have been to continue on with his honeymoon and let the incoming Marshall handle the situation. But there would be a period of a day before the new badge would be arriving and the people should be “Safe” during this short interval. His concerns for his own personal safety, his marriage and townsfolks is over-ridden by his ingrained fear of being a coward.
The bride (played by Grace Kelly) begs her groom to give it up. Boarding the same train the ex-cons exit, she leaves. Key the theme song … Tex Ritter wails the watchwords of police officers of all time:
"I do not know what fate awaits me,
I only know I must be brave,
for I must face the man who hates me,
or lie a coward, a craven coward,
or lie a coward in my grave" (4)
The bride returns just in time to blow one of the gang members away to save her man, who then out-draws the ex-con. In real life sometimes the perp wins and sometimes the spouse doesn't come back, but to a sworn, duty-bound, honorable and ethical American police officer either one of those situations is preferable than being labeled a craven coward for the sake of their personal safety.
THE SUBTLE MESSAGE
At least a decade ago, LEOs of all ranks ended conversations or written messages with the term (some might call it a prayer) “Stay Safe,” “Be Safe” or “Keep Safe”. These terms as a closing comment or sign-off, has become ubiquitous. Officers use it among themselves, trainers finalize sessions with it and police columnists end their writings with this same line. Not that this is wrong or not good. To the contrary, looking out for the well-being of fellow officers is one of the requisites of being a police officer. The original implication might have been well-intended, but the message, especially since Columbine, could be an insult. Today, such a statement/plea/order says the speaker/writer is implying they believe the persons being told to “Stay Safe” are so stupid that they would take unnecessary risks. Or that they should place their safety above those who they are obligated to protect.
Wishing one to be safe can also apply to other professions as well. We surely hope all construction workers, truck drivers and pilots conduct their details in a safe manner. There are very few livelihoods where "safe" is secondary to the profession. Law enforcement is a career where ethical-being trumps safety. Police officers, by their very nature, are charged with not only putting themselves in harm’s way for the physical protection of society, but must be the stalwart, the guiding beacon of honesty and integrity - the last line of defense against violence as well and moral decay. Should American LEOs lose their moral compass, we will witness the breakdown of society. The story has often been told of the Jewish boy who is punished for using the dairy towel to dry the non-dairy dishes. When he questions his father about such an archaic law, the elder explains that the dietary laws have always been in effect and if you break one law and allow it to go unpunished, all of society begins to break down. It is difficult to argue with this reasoning as the Jews have been around for almost 6000 years.
We have often heard the declaration, when relating to American police officers, as "our country's last line of defense." This has usually been in reference to physically standing guard against enemies' intent on committing violence. A truer meaning has not been tendered. But seldom espoused is the underlying definition of the American police officer - he and she stand for the epitome of civilized society. America's very existence depends upon the rigid blue line never wavering in the face of outrageous criminal conduct, civil riots, moral decay or political trickery run amok.
Perhaps, it would generate better faith in subordinates as well as fellow officers to end communications with “Stay Ethical” or “Stay Honest”. These terms represent a belief that the communicator believes the recipient already is (remains) ethical and honest and is wishing them to keep that in the forefront of their mind.
The American Police Officer is a balance of
benevolence to the community with enforcement of the law,
in concert to the Constitution, all the while
adhering to highest moral and ethical ideals.
American police officers are the envy of the world and it's not because they are safe. It is due to their professionalism, a qualification that generates, exudes and is based on a high ethical and honorable standard. Ethics - ethical behavior - is defined as a set, or system of, moral values and principles that are based on honesty and integrity and have been accepted as professional standards.
Police officers are in the business of ethical behavior. This is their stock-in-trade, forte', signature, persona, identification and what differentiates them from other professions. When one police officer violates this trust, this code of honesty, all are tarnished. Adherence to, or practice of, any voids-of-integrity is counter to the code of ethics that is part of each officer's sworn duty - his existence for being. It is surely every LEO's daily practice to live safely, to protect and serve, to stand beside and back-up fellow officers and . . . to always do the right thing. Safety is mostly a matter of practicing rules of common sense. There is little temptation to violate safety procedures. Not so, ethical matters.
Temptations abound to subvert those of power
to commit lapses in discretion for the gains of favor.
Law enforcement trainers find it most difficult to teach common sense, likewise ethical behavior. LE instructors might best encourage their students to Stay Ethical as they personally set a moral example while always being on the lookout for those badge-wearers who might be subject to temptations.
WHO'S IN CHARGE?
America is made up of city, village, township, county - “local” - cops in addition to state troopers and investigators. Added to this protective guard is a growing mix of federal alphabet soupers, e.g., FBI, ATF, IRS, DHS, TSA, DEA, et al. Federal LE agencies have immense investigative abilities including, but not limited to: sophisticated forensic laboratories, deep data bases and vast under-cover operatives. Recently the Department of Homeland Security has been encroaching (is there a better word?) into local police jurisdictions. For example: “The Department of Homeland Security is advancing its plan to use surveillance drones for ‘public safety’ applications….” (5). What they seem to be saying is they (DHS) plans to use their camera equipped drones for state-side activities beyond terrorism to something it calls public safety.
Prior to the proliferation of civilian concealed carry, it used to be “us versus them” meant carriers of the shield against all civilians and armed citizens would be a danger to LEOs. Obviously, the shoot-a-cop-at-every-stop never happened. Now, it might not be as clear exactly who “them” is. A significant number of these decent, law-abiding citizens have become “preppers” - not so much because they fear the end-of-times, but more that they fear their own government. In other words, if chaos reigns, they are not sure who they can trust – the military, federal agents or the cop on the beat. In the event of a real (or rogue government-generated) catastrophic terrorist attack and/or a communications gridlock (no internet/cell phones), where will you be standing? Will (can) you continue to serve and protect the citizens regardless of political, federal LE or military pressure?
Regardless of sworn duty, ethically the local law enforcement community is devoted to never surrender the intrinsic duty to protect our fellow Americans from all enemies – foreign and domestic. We owe an obligation to our neighbors (the parents of the kids your kids go to school with) to reassure them of our commitment to serve and protect them from each and every adversary.
If total widespread chaos transpires and the military moves in, the commander won’t be asking: “Chief/Sheriff where do you want my troops?” He/she will mandate, “Turn in your firearms and go home, we’re in charge.” Here’s a new twist on an old line: Two, fully decked-out SWAT members - a local police officer and a federal agent - are standing guard at a terrorist bombing site. As blue strobes probe, sirens yelp and armored vehicles rumble, one LEO says to the other, “Everyone in the world is the enemy, except you and me . . . and sometimes I’m not so sure about you.” On the backside, we need the feds as much as they need us – even under martial law - and competing for bragging rights is not conducive to protecting society. Are we, the city kitties, smokies and county mounties, to forsake our sworn, moral and ethical duties and become subservient? In other words, should federal agencies be taking a greater or lesser role in local or state LE?
PREEMPTIVE PLANS
1) Health: What plans does your agency – independent of your funding source - have in-place to protect its officers from future health (pandemic) issues? Though the function of the government is to protect the citizenry, the police have to protect themselves to be able to carry out that function. Should masks and gloves be mandatory for every contact with members of the public and/or other officers? Should sanitizing crews be employed to clean the inside of patrol cars (offices) between each shift? (This might seem to contradict the Stay Ethical ethos, but this is department wide not concerning individual officer conduct).
2) Qualified Immunity: Probably the most pressing issue today and in the long-term is QI. A number of locales have already scaled back this civil protection while federal law-makers consider eliminating (or restricting) it. “If qualified immunity were successfully removed there would be effects on multiple levels. There would be a mass exodus of good, moral police officers due to the fear of excessive claims against them that could not only take away their jobs but also the possibility of their freedom and personal assets. An enormous vacuum would be created as officers left the profession and others were hesitant to step up to a life of service. Those officers that stayed in the profession would be reluctant to take action when called for service due to the fear of repercussion. The level of service to the public would suffer and crime would increase.” (6) Suppose QI is declared unconstitutional? Could LE agencies, or LEOs individually, become LLCs (Limited Liability Corporations), or some other form of insulation from private law suits?
3) Private Security: As gated communities proliferate and retail stores add additional layers of private protection, should this trend be encouraged or discouraged? Perhaps, legislation can be introduced to require non-public entities to contract with traditional police agencies if they wish to have special patrols or coverage. Though this seems like a slippery slope, poor incorporated communities have long utilized this practice.
4) The Vote: The top LEO of any jurisdiction should be an elected official so as to report directly to the people – not be subservient to a non-police official with the power to issue “stand-down” orders. Police, per se., are a quasi-de facto fourth branch of our constitutional republic. Perhaps, it’s time they become autonomous - a de jure branch much like a sheriff.
5) Testing: If the following defines the American LEO; how do we test for these attributes? Should discretionary power (the Chief’s “6th sense”) be greater or equal to machine, written and oral testing?
The American Law Enforcement Officer is a physically fit, man or woman epitomizing theologically inspired (7) moral and ethical values including the inherent traits of bravery and common sense; entrusted by a physical-boundary-set political division of society with the authority, duty, obligation and power to maintain tranquility, protect property and persons and investigate and arrest anyone violating the codified laws of this physical-boundary-set political division.
The trend has been to create a composite of society within a police department - to have the makeup of LE members represent the variety of citizens. Perhaps, it should be the other way around … the community's primary goal should be to emulate the American LEO.
6) Saving Lives: Though this is not exactly a police prerogative, it might be in the best interest of LE and the community, per se., to campaign for EMT/Life Squads to be on patrol 24/7. Always ready to respond to drug ODs and other medical issues including shots fired dispatches (after the area is made safe by LEOs) would be a significant advantage for the safety of the general populace as well as LEOs. In addition, it would help relieve pressure on responding officers by requiring the EMT/Squads to become first responders to medical, suicide, drug dispatches. If a police officer is injured, EMTs would be available earlier.
7) The Taser: The fall-out from the tragic Kim Potter case has created the question, wouldn’t it be best to fit tasers with a pulsating strobe light and siren/bell/whistle that are activated when removed from the holster? Not only would it warn the officer that he/she is holding a taser, but the sound and blinking light could distract the perp while at the same time letting him/her know what’s coming next … if compliance is not instantaneous. (8)
SUMMARY
Staying ahead of the coming curves of life for LEOs might best be addressed by simple matters such as utilizing the term Stay Ethical when signing off with fellow officers and sanitizing officer environments to more complex issue including equipment modifications to campaigning for major changes that embrace full-time EMTs on patrol, elected chiefs of police and qualified immunity protection.
About the Author: Chuck Klein is a former police officer, licensed Private Investigator (ret.), active member of International Association of Law Enforcement Firearms Instructors (IALEFI), former Level 6 firearms instructor for Tactical Defense Institute (www.tdiohio.com), author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution; POLICE (definition portion of Encyclopedia of Science, Technology and Ethics, Macmillan Reference USA, an imprint of Thompson Gale ISBN 0-02-865991-0). Information about his books and e-mail contact is available on his web site: www.ChuckKleinAuthor.com
NOTES
(1) There were many investigations (available via a Google search) into the tragic mass shootings by two students at Columbine High School in Columbine, CO on 20 Apr 1999. The first responding LEOs did not enter the building, even while hearing the sound of gun fire from within the school. Just like everyone tuned to network television that day, I saw and heard The Jefferson County Sheriff, in no uncertain words, admit he did not order his men in because he “didn't want them to get hurt.” Return
(2) From a personal email to the author in response to my published questioning of the actions of the Jefferson County Sheriff’s comments following the Columbine tragedy. Identifying the Chief who wrote the email would serve no purpose. Return
(3) U.S. Department of Labor, Bureau of Labor Statistics Return
(4) The movie version had slightly different wording that included the character’s name, Frank Miller. Not to offend persons of that name, the wording was changed for the highly-successful recorded version made popular by singer Frankie Lane. The revised wording used in this article is quoted here: Lyrics Return
(5) DHS Advances Plan For Public Safety Drones Return
(6) Chief Deputy Christopher Hodges, Brown County Ohio Sheriff’s Office, 5 Jan 2022. Return
(7) American Police Officers are NOT the enemy; nor are they hand-holders, social workers, jack-booted-thugs or heroes. However, evil-doers may deem them the enemy; they may become hand-holders when comfort is needed or social workers when helping the indigent and even jack-booted-thugs when breaking down doors to protect us from evil doers … and when heroic acts are required, they’ll be there. As to the reference to G-d; He is on the face of our currency, part of our Pledge of Allegiance and is always an option in oaths of office or court testimony. Return
(8) The recent criminal conviction of a LEO ( Kim Potter Trial) for mistakenly – in the heat of the moment - using her firearm when she meant to deploy her taser might have resulted in a not-guilty verdict had her attorney stressed her action was no different than a LEO deploying stop sticks or the Precision Immobilization Technique that unintentionally causes death to a criminal suspect or other innocents. Return
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Chuck Klein © 2022
Published in the Summer 2022, THE CHIEF OF POLICE magazine,
the Official Publication of The National Association of Chiefs of Police.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. U.S. Constitution, 9th Amendment
Enumeration: List of rights.
Certain: Fixed, settled.
Rights: That which a person has a just claim to.
Shall: Mandatory, must be done.
Construed: Interpreted.
Deny: To refuse to accept the existence, truth or validity thereof.
Disparage: To lower in rank, reputation, depreciate, tamper.
Others: The rights not listed in the Constitution as opposed to the certain rights that are listed. These other rights are the inalienable rights that include, but are not limited to: The right to be presumed innocent until proven guilty; The right to protect oneself, property and family; The right of inheritance and bequeathal, to be treated equally before the law … self-evident truths such as “life, liberty and the pursuit of happiness.”
Retained: To keep in possession, to hold secure or intact.
People: Human beings - the citizens of the United States of America.
PREFACE
There are two issues, Duty and Power, that have come to light in the recent case (1) (2) against the now ex-Minneapolis Police Officers, Tou Thao and J Alexander Kueng (George Floyd matter) (3). The first is basic to policing, per se. The second topic concerns the judicial system.
HISTORY
A police force is not a democracy; sworn officers do not have the right to vote on how to proceed during any official detail involving the public. LE is a quasi-military organization inasmuch as there is a hard chain of command – as opposed to a soft chain found in civil or other public institutes. MPD patrol officers, Thao and Kueng, witnessed their sergeant (Derek Chauvin) wrestle a violent, resisting arrestee (George Floyd) to the ground and further observed the sergeant place his knee on Floyd’s neck until Floyd died. As a result of these actions/inactions Chauvin was tried and convicted of a crime (see Part I of this series for a different view) and the subordinate officers were also tried and convicted in court. The prosecution alleged that Thao and/or Kueng violated Floyd’s Constitutional rights and should have intervened if they had knowledge (unsubstantiated evidence) that the on-scene, ranking officer was using the ambiguous term: unreasonable force.
The judicial system that fostered the convictions of Thao and Kueng is based on (mis)interpretations and direct and indirect denials and disparages of our Constitution.
DUTY
The question here concerns what, if anything, a police officer is required (has a duty or legal obligation) to do when faced with the question of whether or not to take action against (interfere with) the acts of a superior officer during a lawful arrest. The implied Constitutional reference is to the 5th and 14th Amendments, neither of which requires a LEO or anyone to intervene for the benefit of another. The word unreasonable, or any such language, also does not appear in these Amendments of which the relevant portions read (with annotation):
“…no person…shall be deprived of life without due process of law;.…” Only MPD Sgt. Chauvin was denying George Floyd the right to life.
“…nor deny to any person within its jurisdiction the equal protection of the laws.” States could not make and enforce laws that treated persons (even if they were not U.S. citizens) differently. If officers Thao and/or Kueng had intervened in similar situations or were acting in contravention to department rules specifically requiring intervention against a superior officer, that would constitute depravation.
Suppose a private in the military over-hears his commanding officer ordering an attack that the private believes to be unreasonable. Should the private shoot the CO if the CO fails to heed the private’s warning? How ‘bout if a Secret Service agent believes his CO (POTUS) is about to issue unreasonable orders to send troops….
The relevant portions of the statute for which Thao and Kueng are charged (emphasis added):
18 U.S.C.A. § 242. Deprivation of rights under color of law. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, ... the deprivation of any rights, … secured or protected by the Constitution or laws of the United States, …on account of such person being an alien, or by reason of his color, or race … shall be fined under this title, or imprisoned…. [emphasis added] (4)
Nowhere in the indictment, charge to the jury or trial evidence, does the prosecution allege that Thao or Kueng used any racial slur or in any way exhibited or spoke any words referencing the race, color or alien status of Floyd. Therefore, this statute ONLY applies if the defendant was depriving another due to that person’s race, color or alien status. America is not a commonwealth; we are a statutory nation insofar as it can only be a crime if there is a specific law to which someone can be held accountable and that law incorporates a punishment provision. Citizens cannot be convicted of violating a Constitutional article or amendment unless that section spells out an articulated punishment (civil accountability is held to a different standard).
In the charge to the jury at the conclusion of this criminal trial of ex-Minneapolis LEOs, Tou Thao and J Alexander Kueng, the judge told the jury: (5)
“...defendant[s] violated Mr. Floyd’s right to be free from a police officer’s use of unreasonable force…” If the force became unreasonable it only did so upon Floyd’s death.
“…that the defendant had the opportunity… [to intervene]” If a subordinate officer intervenes with a lawful arrest by the senior officer, this junior officer will surely face disciplinary action including termination.
“…and [had] means to intervene…” If the senior officer does not heed this warning, the prosecution alleged the junior officer’s duty is to use his/her power to intervene, i.e., physically assault his superior. Such physical force will surely cause termination and felony charges of assaulting a police officer to be filed against the subordinate officer.
“…to stop the unreasonable force;” There is no statute, law or Constitutional mandate for a police officer to interfere with a superior officer’s course of action. It is clear that the subject patrol officers were not indicted for a violation of a statute that makes it a crime to fail to take action (intervene) UNLESS race, color or alien status is alleged.
SUMMARY:
Though a LEO takes an oath to protect lives and property, the point at which another’s life or property is in jeopardy is not only subjective, but relevant to the consequences the officer faces. Were the officers wrong not to intervene? Probably. Would they have been wrong if they had intervened? Probably. Either way they will suffer irreparable harm – a violation of their Constitutional rights. Unless race, color or alien status is a criterion, failing to intervene is not a crime whereas assaulting a police officer is a felony.
SOLUTION:
While the higher courts review the convictions of Thao and Kueng our federal legislators might be encouraged to push for a federal statute with wording to the effect: It shall be in violation of Federal Law for a prosecuting attorney to charge any person with a crime for which all of the elements of the crime are not present. One convicted under this statute shall be fined $____ or imprisoned not more than _______ years, or both.
POWER
The following Instructions (charge) to the Jury is taken directly from the federal case (6) against the ex-MPD LEOs, Thao and Kueng, who were charged with violating 18 U.S.C.A. § 242 Deprivation of rights under color of law (7). In effectively all criminal jury trials, the presiding judge will read the below (or words to that effect) to “charge the jury”. (8)
“It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.”
Here, the trial judge ordered the jurors to accept his definition, meaning and application of the law and regardless of what the jurors believe to be in concert to the Constitution, they must follow his directives. This is a direct infringement of the defendant’s rights under the 6th Amendment to the Constitution, which states:
“In all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury….”
An impartial jury means one made up of openminded and unbiased citizens – not corrupted by undue influence, bias or prejudice from any source. When a judge orders a jury to follow his/her instructions about how to define and apply the law as he/she explains it to them - that jury is no longer impartial. (9) A jury that has been subjected to this usurpation of power is no longer unprejudiced - it has been influenced to the judge's uncontested bias. Uncontested because judicial rules forbid the defendant’s attorney to address the jury after these instructions have been issued. This charge to the jury is not open to cross or direct examination – the judge’s word is final, conclusive and absolute. This is no different than the judge, for all intents and purposes, telling a jury how vote by requiring them to accept his or her interpretation and meaning of the law. A government employee using his or her powerful position to ‘instruct' or ‘tamper with’ a jury has construed, denied and disparaged other rights - a clear violation of the 9th Amendment of the U.S. Constitution (10).
There are two basic reasons judges insist on being the only definer of the law:
1) Because they believe common jurors are just that - regular people that are not sophisticated enough to understand the law unless a judge explains it to them;
2) Judges do not want to surrender their self-granted power of having the final say.
Officially, Judges preside in criminal jury trials for the primary purpose of ensuring a fair trial. They are referees or umpires whose duties lie in making sure the playing field is level - not to pass judgement. Judgements are reserved to the jury. Juries decide facts, and when appropriate, judge the law as well. When a jury evaluates the law, it means comparing a law in question against an accepted standard. In America, the only standard to which a law can be assessed is a constitution, either state or federal. Jurors do not have the license to judge a law to their private standard or opinions; whereas allowing one to whimsically decide whether a law is good or bad based upon a personal view would be inviting judicial lawlessness.
However, what the judicial branch does, is refuse to tell a jury of their rights, while at the same time not allowing an attorney to do so. This is made clear by rules of the American Bar Association (ABA) which governs all American trials. (11). However, and this is a significant however: The court cannot prevent the defendant from giving his or her interpretation of the law he or she is charged under - but not as a witness under direct examination – only acting as his or her own attorney. Acting as one’s own attorney (pro se), one can say almost anything to a jury. (12) Thus, a defendant's ability to present his/her demeanor and often even a kind of summation is possible without exposure to impeachment or cross-examination. This may be a great tactical move, but only if the defendant is well poised, knowledgeable and a good speaker. The quirk of forbidding attorneys to argue the law before the jury, but permit pro se (amateur) testimony, seems to have escaped the logic of the judicial system. Does not telling a jury they have this right a denial of others rights noted in the 9th Amendment? Ditto, the defendant’s right to know of his or her pro se rights?
Forcing a defendant to become his/her own lawyer just for the sake of arguing the law's constitutionality, is a clear violation of the 6th Amendment right to counsel which includes this demand:
“…to have the assistance of counsel for his defense.”
In other words, it is well established in case law, the accused is entitled to representation at ALL levels of trial including pre-trial, interrogation and post-trial sentencing. Therefore, it seems illogical that the courts continue to support the self-empowering ABA which clearly forbids one’s legal representation at a most critical stage of a trial - the "instructions/charge" to the jury.
Our rule-of-law, The Constitution, was written by laymen for laymen and nowhere in its articles or amendments is the judicial branch empowered to instruct a jury what they must do or not do. Some states, in open confrontation to the Constitution, have even gone so far as to require jurors to report fellow jurors who refuse to follow the law as directed by a judge.
Rep. Henry Hyde’s opening statement in the Clinton impeachment investigation, 18 Dec 1998, has been recognized as the standard for the definition of the Rule of Law – the U.S. Constitution.
"The rule of law is like a three-legged stool. One leg is an honest judge, the second leg is an ethical bar and the third is an enforceable oath. All three are indispensable to avoid political collapse … The phrase 'rule of law' is no pious aspiration from a civics textbook … The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties," (13)
In all criminal proceedings witnesses who are going to testify before a jury must swear or affirm, under penalty of perjury, to tell the truth. This rule applies to everyone including lawyers, police officers and other government employees even though they have sworn an oath to their office and the Constitution. However, the framers of our Constitution did not require judges, during a jury trial, to swear to tell the whole truth and nothing but the truth. The judge is immune to this rule of law because he is not expected to testify. Unfortunately, judges do testify in the form of their 'instructions' or 'charges' to the jury. It is during this 'testimony' - this propagation of their own power - that the judge will NOT tell the whole truth. The whole truth being a jury's right and power to decide the constitutionality of a law or the defendant’s right to address the jury on the subject of the law, thus crippling one leg of the stool.
SUMMARY:
We are not a nation of laws; we are a nation of Constitutions. A community’s mood swings – including that of judges - has had negative impacts on LEOs; only the Constitution and ALL of its Amendments stands to preserve the rights, integrity and honor of the rule of law.
Many precedent-setting rulings, dating from the decade of this country's inception to as late as 1972, have confirmed that Jury Prerogative (sometimes called Jury Nullification) is a bono fide right and power of a jury: Jury Prerogative is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution. (14)
"The jury has a right to judge both the law as well as the facts in controversy." John Jay, 1st Chief Justice U.S. Supreme Court (1789).
The jury does and always has had, in the words of Justice Holmes, "the power to bring in a verdict in the teeth of both law and facts" (Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 [1920]).
"The law itself is on trial quite as much as the cause which is to be decided." Harlan F. Stone, Chief Justice U. S. Supreme Court (1941).
"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...." (U.S. vs. Dougherty, 1972) (15).
SOLUTION:
Police academies might begin teaching the court room tactic of pro se – how to inform your jury of its rights to judge the law should the question of a law’s constitutionality become an issue during a trial in which you are charged. Perhaps, if Thao and Kueng had utilized this strategy….
About the Author: Chuck Klein is a former: police officer, licensed Private Investigator (ret.), active member of International Association of Law Enforcement Firearms Instructors (IALEFI), Level 6 firearms instructor for Tactical Defense Institute (www.tdiohio.com). He is the author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution. His education includes Bachelor of Laws, Blackstone School of Laws. Information about his writings and e-mail contact is available on his web site: chuckklein.com
NOTES:
(1) U.S. District Court U.S. District of Minnesota (DMN) CRIMINAL DOCKET FOR CASE #: 0:21-cr-00108-PAM-TNL All Defendants https://www.morelaw.com/verdicts/case.asp?n=0:21-cr-00108-PAM-TNL&s=MN&d=161390 Return
(2) Main stream media report of the case: https://www.cbsnews.com/news/george-floyd-trial-verdict-reached-federal-civil-rights-trial/ Return
(3) A veteran Minneapolis LEO held his knee on a combative arrestee for an extended time causing the arrestee’s death. Wikipedia, The killing of George Floyd Return
(4) U.S. Code 18/242;Return
(5) Instructions to the Jury, CASE 0:21-cr-00108 Return
(6) Ibid U.S. District Court. Return
(7) Ibid U.S. Code. Return
(8) Ibid Instructions to the Jury. Return
(9) U.S. Constitution, Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed....” Return
(10) U.S. Constitution, Amendment VI See lead-in to this treatise and Amendment #9 Return
(11) The American Bar Association, Instructions to the Jury. "The judge will point out that his or her instructions contain the interpretation of the relevant laws that govern the case, and that [sic] jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, the jurors determine the facts and reach a verdict, within the guidelines of the law as determined by the judge." Return
(12) There is no law, statute or case law forbidding jurors to ignore a judge’s instructions to come to their own conclusions as to the interpretations of a law, statute or constitutional wording. Return
(13) Henry Hyde’s Rule of Law Return
(14) Jury Prerogative Return
(15) United States v. Dougherty - 154 U.S. App. D.C. 76, 473 F.2d 1113 (1972) Return
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Chuck Klein © 2023
Published in the 2023 Summer issue, THE CHIEF OF POLICE magazine,
the Official Publication of The National Association of Chiefs of Police.
Also see: PROPOSED 28TH AMENDMENT
I Pledge Allegiance
I, me personally, promise as an oath
of loyalty, duty, devotion
to the Flag of the United States of America,
The symbol and the representation
of the United States
of America,
and to the Republic
A nation that lives
by the rule of law
for which it Stands,
That which the Flag represents,
One Nation Under God,
United as a single people
under a supreme being.
Indivisible,
Facing all enemies, we stand
back-to-back, shoulder-to-shoulder,
rich-to-poor, liberal-to-conservative,
With Liberty and Justice for All.
Freedom, sovereignty, equality, fairness and truth,
all on the shoulders
of our law enforcement officers. (1)
PREFACE
Escalating violent crime has been blamed on such factors as the perceptions of police restraint during and after racial-justice protests, initiatives to release criminal arrestees without bail, reduction of undercover LE infiltration of gang-violence programs, reduced in-person church services, financial and medical isolation related to pandemic stress, illegal (and legal) addictive drug usage and, of course, an inability to keep guns out of the hands of those who shouldn’t have them.
Cops would most likely be more comfortable if no one had access to firearms except themselves while many citizens might favor everyone packing heat as in the old adage: An armed society is a polite society (2). Because America is so sharply and evenly divided and inasmuch as it has been over 60 years since the last Constitutional amendment was passed, passage of a new amendment would be difficult sans unity on the most contentious of issues. For the pro-gun citizenry, it centers on the fear of the slippery-slope ultimately leading to registration that results in confiscation. Anti-gunners would be happy if the Second Amendment (3) was repealed. Police want to be able to not only identify the owner of a firearm, but don’t want to face armed criminals while at the same time need assurances that they, and their family members, will be able access firearms upon retirement. States center on money, i.e., funds raised from licenses and procedures.
Crimes committed against persons – especially police officers – has intensified to disrupting levels and virtually nothing, save band-aid approaches, has been done to appease any of the camps. Following many shootings, the cycle has been for Democrats to rise up in arms (figuratively), Republicans to double-down, politicians to pass meaningless legislations and the courts to nullify challenges to the 2A. Perhaps, it’s time for a different approach. Recently, SCOTUS over-turned a century old NYC law that gave bureaucrats the power to determine if a person was allowed to receive a license to carry a concealed gun in public. (4) Though New York and other communities with similar laws will have to adjust, new law suits and legislation will surely ensue followed by more challenges to the courts. It seems to be a never-ending cycle.
“The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning
but without understanding.” (5)
HISTORY
The Second Amendment to the U.S. Constitution is a problem inasmuch as it is ambiguous – unclear due to generalization, on-going legislative and court rulings as to who can own and bear arms and which arms are allowable. To some citizens it is perfectly clear, this Amendment should be taken literally while others read it as it should be applied to present-times, subjectiveness and interpretation. There are four factors that govern and define firearm ownership in America: Individual Rights, Citizenship, Other’s Rights and Wrongs.
Individual Rights
There are only two kinds of rights: Conditional and unconditional. The right to free speech is conditional inasmuch as the condition, public safety, trumps the 1st Amendment as in yelling fire in a crowded theater when there is no fire…. Even the right to life is conditional: state/federal governments can take the life of a person who commits certain crimes and, of course, one’s right to life is conditioned when trying to take another’s life who’s exercising their right to self-defense. Because the meaning of the wording of the Second Amendment, “The right of the people to keep and bear arms shall not be infringed” (6) has been found to be a conditional right, we American’s will always be fighting in the courts for tomorrow's definition of conditions.
The right to protect oneself and one’s family is unconditional – there are no restrictions or conditions – it is absolute, fundamental and inalienable. This is not to be confused with the ability to self-protect, i.e., the right to possess, carry or utilize a firearm – or any other weapon - to affect this right. The ability to protect oneself utilizing weapons is not fundamental or unconditional and thus is subject to limited governmental controls, albeit, limited restrictions. And that’s the rub … which government and what type of controls.
The Second Amendment to the U.S. Constitution
is not an unconditional or absolute right.
If it were, grade-schoolers would be allowed to
pack a Uzi to class and prison inmates would have the
Right to Keep and Bear Arms (RKBA).
Citizenship
At the time of the Constitution's inception the framers, “all men in a man's world,” clearly gave little thought to anyone other than the man as the defender of family, property or country. Whereas, in Eighteenth-Century England, only the landed rich were empowered to defend honor and country. A citizen, circa 1785, was considered to be any white, American, male over the age of 21 and not a felon. The idea of civilian gun controls was unconscionable. On this side of the Atlantic, it was also inconceivable that a Thomas Jefferson or a James Madison would refuse to take a musket away from a drunk, a child or someone conspicuously deranged. Had one been able to ask these learned, most-sacred-document framers of the conflict of such a restrictive action; they most likely would have replied with words to the effect that the drunk or mental incompetent were, at least temporarily, not citizens. A child was, of course, not a man and a felon had forsaken his citizenship.
With the ratification of the 13th, 14th and 19th Amendments all of-age Americans were recognized as full, ruling-class citizens. Arms possession was, AND STILL IS, the signature of being a citizen - not a subject to some monarchy and most assuredly not – permanently or temporarily - mentally inept, a child, a felon, or a substance abuser. This concept of all persons being full citizens and having the right, empowerment and obligation to self-preservation was unique to America.
Rights
Restricting individual’s RKBA when such restriction violates the rights of others is justifiable providing the restriction is obedient to the Constitution. Allowing certain persons, such as children, felons or those under the influence of mind-altering chemicals to possess firearms most assuredly creates a substantial risk of loss to others’ life or liberty. However, restricting the right of a law-abiding, bona fide citizens from owning a firearm, including but not limited to machine guns, assault rifles, or short-barreled long-guns (7) does not present a substantial risk of damage to anyone.
Constitutional rights are only such when they don't infringe on the Constitutional rights of others. One's right to swing his/her fist ends where the other person's nose begins. Of course, if one keeps his/her fist concealed in his/her pocket he/she is violating no one’s rights. On the same token, if a law-abiding citizen goes about his/her legal business with a firearm concealed in his/her pocket he/she is no more infringing the rights of any other person than the theater-goer who keeps the word "fire" concealed in his/her mouth.
Some citizens might wish to exercise their right to the "pursuit of happiness" by not wanting to be in the presence of guns. On their own property, not accessible to the public, they can do as they please. However, where public property is involved such as court houses, police stations and legislatures guns can be restricted by instituting the use of metal detectors and storage boxes that the carrier can store his/her gun until he/she leaves that secure area.
To reiterate, the RKBA is a conditional right, but conditional insomuch as restrictive conveyances can only be based on citizenship and the rule of others’ rights. In other words, if one is not precluded from owning a gun and exercising this right does not infringe on anyone else's right, the bearing any type of arm anywhere they wish is what freedom is all about. (8) However, evidence the number of firearms involved in lethal force incidents this reasoning hasn’t been working to everyone’s advantage. But until such time as the Constitution is amended, things won’t change. The "American ruling class" (aka voters), if they so desire, can alter the definition of citizen, establish restrictions or expand rights - but ONLY by amending the Constitution.
Wrongs
There are only two kinds: Malum In Se, from Latin, for wrong in and of itself. We don't need laws telling us it’s wrong to murder, steal or repudiate an oath, whether we have laws against those offenses or not. All other wrongs, from failure to acquire a building permit to bribery, are Malum Prohibitum, also from Latin, meaning, wrong because, we, society says it's wrong and have labeled specific measures to be against public policy.
Humans, being politicized, opinionated and/or biased, interpret, define and enforce/ignore rights and wrongs including intrinsic, fundamental and absolute rights such as even matters of self-defense. Issues arise when humans project their powers by labeling Malum In Se as Malum Prohibitum … of vice-versa. The gun is controllable – a physical property that can be defined and regulated. But in America where the criminal element seems to be able to access them regardless of all the Malum Prohibitum laws; denying law-abiding citizens the right to self-protection with a firearm is Malum In Se?
SOLUTION
One significant problem with guns of any type is the danger to LEOs. It’s also a danger to civilians in schools, shopping malls, homes…. It would serve no purpose to reiterate the multitude of proposals previously tendered, ad nauseum, to resolve this issue. Therefore, a new approach might be needed, albeit, not one directly doable by LE. This may not be perfect and many may strongly disagree with the basic concept; however, the old and still true observation of Edmund Burke might apply: "The only thing necessary for the triumph of evil is for good men [and women] to do nothing" (9) Well, we, The LE community are good men and women….
A well-crafted new Amendment could capture the unity of both Republicans and Democrats. Though some of the attributes of this proposed amendment have been placed into law via the legislature or SCOTUS, this action is intended to clear-up the ambiguities that have so divided the nation.
AMENDMENT XXVIII
Law Enforcement Armed Citizen Amendment (LEACA)
SECTION I
Any Citizen Of The United States, Over The Age Of 18, Who Is An Active Duty Member Of The Armed Forces Of The United States Or Has Not Been Dishonorably Discharged From Any Branch Of U.S. Military Service Or Who Is Not Under Indictment For, Convicted Of, Under Arrest For Or While In The Act Of Committing A Felony Or Released On Bail For Any Crime Of Violence, Or Trafficking In Any Illegal Drug Of Abuse Or Has Not Been Adjudicated As A Chronic Alcoholic, Drug Dependent Or Mental Incompetent Or Is Not In Protective Custody Or Is Not Consuming An Alcoholic Beverage Or Is Under The Influence Of Alcohol Or A Drug Of Abuse And Has Been Vetted By Any American Law Enforcement Agency, Has The Right To Acquire, Possess And Bear Arms And The Duty To Keep Such Arms Under Their Control Anywhere This Instrument Has Jurisdiction.
Annotation To Section I
Any person who is a citizen of the United States (an inducement for those living here as foreign aliens), and does not fall under one or more of the disabilities and whose demeanor and criminal history has been scrutinized by a police agency has the right to own and carry guns. Section I constitutionalizes the inherent and intrinsic right to acquire (purchase, lend, borrow – keep under their control) and bear arms. The right extends to any physical location under the political sovereignty of the U.S. Constitution.
Keeping and bearing arms is not only protected, but it carries with it an obligation to be sure these weapons don't fall into the wrong hands, i.e., prohibited persons. In other words, if a legal owner of arms allows a prohibited person access to his/her arms, that owner of the arms is in violation of this Amendment and subject to punishment as covered under Section 8 of this Amendment. The vetting requirement by law enforcement allows for removing weapons from a person who is under arrest or even out on bail for any of the listed crimes. Though LE agencies will be accountable to seeing that all applicants are free of disqualifying disabilities from obtainable records, i.e., legislators will be pressured to make non-public mental health and juvenile records available. In addition, utilizing LE for this task rather than bureaucrats will garner trust from the public while under this same protocol the vetting and permits duties will require an increase in LE staffing (read, budget) thus, for all intents and purposes, more police officers will be available to protect society – a win-win for citizens and the police profession overall. This Amendment also restricts the possession of firearms by anyone who is in protective custody – such as when a person who has not been adjudicated as mentally unfit, but police have taken this person into custody pending such adjudication.
SECTION 2
The Bearing Of Arms Is Prohibited Within An Enclosure Where Notification Is Made Restricting The Bearing Of Arms, Search Provisions Are Operational And Safe And Convenient Provision Is Made To Secure And Retrieve Arms Carried To The Ingress/Egress Point Of Enclosure, Private Homes Excepted.
Annotations To Section 2
Any public or private entity has the option of forbidding the carrying of arms into or onto its enclosure (building, fenced-in area) as long as said entity posts a notice, physically operates a means of detection (metal detector) and provides for the arms carrier to safely and conveniently store/retrieve his/her arms. This way, military bases, court houses, police stations and department stores, schools, etc., that don't want persons to be armed within their enclosures, must establish a 'coat check' for guns and have metal detectors in operation. Yes, these security measures are expensive, but so was establishing the BATF, SS, FBI, TSA … school bus service…. Private homes are exempt from these conditions, in other words, one’s home is still his/her castle.
SECTION 3
Arms Means Any Rifled Barreled, Breech Loading Device Weighing Less Than Fifteen Pounds, Unloaded, And Capable Of Discharging By The Action Of An Explosive Or Combustible Propellant A Projectile Or Projectiles Of Which The Projectile[s] Is [Are] Not Greater Than .525 Inch In Diameter, And Was Manufactured After 1898; Or Any Non-Rifled Barreled, Breech Loading Device With A Bore Diameter Not Greater Than .780 Inches; Bearing Of Arms Means To Carry, Either Openly Or Concealed; Keeping Arms Means Ownership Or Having Control Of Arms.
Annotations To Section 3
Most non-gun and many gun owners would feel uncomfortable with their neighbor hauling around a bazooka or other mega-destructive device. Barrel and stock lengths, rifle/handgun calibers up to .50, shotguns up to 10 ga. and fully automatic arms are not restricted as long as the arm doesn't weigh more than 15 pounds - empty. This section does not preclude local governments from enacting and enforcing 'activity laws' such as pointing firearms (assault) or inducing panic by shooting in crowded public arenas. Antique firearms (those made prior to 1898) are, as they are now, exempt from this Amendment.
SECTION 4
Each Territory Or State Of The United States Shall License/Test Persons, Not Prohibited Under Section I Of This Amendment, Who Wish To Bear Concealed Arms In Public; Fees And Complexity Of Testing For Such Licensing Shall Be Reciprocal And Not Exceed That Which The Licensing State Or Territory Has Established For A Motor Vehicle Operator's License At The Time This Amendment Is Ratified.
Annotations To Section 4
Some may object to allowing states to license something one has a constitutional right to do. The state, however, also has rights, such as its need to know who is a citizen - a person entitled to own and carry concealed deadly weapons. Requiring a license to carry concealed arms greatly enhances the likelihood for ratification inasmuch as states might be more inclined to ratify this Amendment if they receive income generated from concealed-carry fees. More importantly, and especially since the terrorist attack of September 11, 2001, anyone wanting to purchase or carry instruments of lethal force should be required to prove (be successfully vetted by LE) they are law-abiding American citizens. Qualifying for and possessing a "permit" card is a mark of citizenship - it is only available to those who are not drunks, mental patients, children or criminals. Establishing just who is and who is not a citizen when it comes to those who are part of America's First Line of Defense is paramount to a secure country.
Since SECTION I guarantees the right to keep and bear arms, all permits must be on a 'shall issue' basis. The tests and the procedure for securing the license cannot be any more complex than what a state requires for its motor vehicle operator's license, i.e., prove who you are, study a pamphlet and take tests (can't have those who can't comprehend use of lethal force laws packing heat). This Section makes reciprocity between states and territories mandatory and does not restrict the bearing of unconcealed arms.
SECTION 5
No Local, State Or Federal Government Employee Or Agency Shall Maintain A Registry Of Arms.
Annotations To Section 5
Registration of firearms is forbidden by any government person or government agency. This would not preclude manufacturers and gun dealers from keeping records of the original purchaser in case notification is needed for reasons such as recall or safety notices - as is already the law. This does not prevent voluntary data bases by private organizations such as gun/collector clubs.
SECTION 6
All Federal, State And Local Statutes, Laws, Court Decrees, Executive Orders And Legislative Acts That Pertain To The Keeping And Bearing Of Arms, Except As Applied To Arms Manufacturers And Licensed Arms Dealers In Force At The Time This Amendment Is Enacted And Not In Contradiction To The Constitution Are Void And No Future Restrictions On The Keeping And Bearing Of Arms Except As Provided For In This Amendment Or By Amendment To This Constitution Shall Be Permitted.
Annotations To Section 6
This section is to make it clear that this new amendment has superseded all other current or future laws, statutes and executive orders and court rulings - federal, state or local! Arms laws pertaining to gun manufacturers and dealers, on the books at the ratification of this amendment, except those laws that are in conflict with this AMENDMENT, remain in force. There is no need for other controls on firearms as any such would be in violation of this amendment.
SECTION 7
One Hundred-Eighty Days After Ratification, This Amendment Becomes Effective And The Second Amendment To The Constitution Of The United States Is Repealed.
Annotations To Section 7
Upon ratification of this, the 28th Amendment, the 2nd Amendment will be void. The 180 days period is to allow states to prepare their testing procedures and LE to gear up for the vetting process.
SECTION 8 The Congress Shall Have The Power To Establish The Punishment For Violations Of This Amendment And Set Procedures And Limits For Law Enforcement Vetting.
Annotations To Section 8
Insofar as seriousness of crimes varies, it is best left to the Congress to regulate punishment provisions. The vetting process is up to the Congress to set the limits and procedures.
SUMMARY
Almost since inception, the Second Amendment has been contentious inasmuch as citizens have differed on who is entitled to own and carry what type of firearm. Local, state, federal laws and court decisions have tried to address this issue only to be appealed, reevaluated and barter again and again. Perhaps, a definitive amendment to the Constitution could finally put the matter to rest. Though crime will always be with us, and firearms in America are ubiquitous, we might best codify – in an amendment to our most sacred document - exactly how ownership, possession and type/category of firearms can be regulated for all concerns. Under the doctrine of Pothings Nerfect, this Amendment tenders multiple quid pro quos inasmuch as the far right gains access to more types of firearms; the far left will find comfort in the requirement of enhanced background checks plus mandated training; the state receives money for licensing; law enforcement controls the vetting process while securing additional funding and … all citizens will become safer.
About the Author: Chuck Klein is a former: police officer, licensed Private Investigator, Level 6 firearms instructor and current/active member of International Association of Law Enforcement Firearms Instructors (IALEFI). He is the author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution. His education includes Bachelor of Laws, Blackstone School of Laws. Information about his writings and e-mail contact is available on his web site: chuckklein.com
Notes
(1) The American Pledge of Allegiance; annotations by the author. (2) Robert A. Heinlein, Author (1907-1988) https://www.brainyquote.com/quotes/robert_a_heinlein_100989 Return
(3) The Second Amendment to the U.S. Constitution: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Return
(4) New York State Rifle & Pistol Association, Inc. v. Bruen, 23 Jun 2022. https://www.foxnews.com/politics/supreme-court-gun-decision-shoots-down-ny-rule-high-bar-concealed-carry-licenses Return
(5) Supreme Court Justice Louis Brandeis, 1927. Return
(6) Ibid. The Second Amendment. Return
(7) Constitutional Amendment: Only a constitutional amendment can limit the type, style or function of a firearm that can legally be possessed. Return
(8) Ibid. Constitutional Amendment. Return
(9) Edmund Burke, Member of Parliament (1729-1797) https://www.goodreads.com/author/quotes/17142.Edmund_Burke Return
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