When “I was just following orders” becomes more dangerous than COVID-19
A Sheriff’s Department armored military SWAT vehicle enters a parking lot of a bar in Odessa, TX, disgorging uniformed officers armed with M-4 tactical rifles to take down armed and unarmed patrons in a parking lot and bar. Their violation? Opening a bar and “Violations of Social Distancing.”
An undercover “sting operation” at a hair and nail salon in Dallas County, Texas results in the arrest, speedy conviction and the disproportionate and immediate sentencing of the female owner and mother of two children to jail. Her violation? Opening her salon to earn money to feed her kids and pay her rent. The woman is handcuffed and carted away to jail for refusing to apologize to the judicial activist judge for her “selfishness.” She is potentially exposed to COVID-19 while Dallas County frees over a thousand felons to fear that they might contract the virus.
In Fresno, California on Mother’s Day, police arrest patrons of a restaurant open in defiance of county health guidelines for “violations of social distancing” and blocking the doors preventing code enforcement and police from entering the establishment to cite the owner.
In Southern California, police and lifeguards chase down and arrest a defiant paddleboarder out in the bay for refusing to get out of the ocean in “violation of social distancing orders.”
What in the world is happening to law enforcement today?
Although it was forty-six years ago, I remember taking “The Oath” to become a police officer like it was yesterday, “I do solemnly swear, that I will faithfully execute the duties of the office of police officer in the State of California, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this state, so help me God.”
For me and the vast majority of my brother and sister officers back then, police work was considered a “calling,” much like the priesthood, the fire department, volunteering for the military or becoming a physician. We all took oaths and the vast majority of peace officers, fire fighters and military personnel sacrificed greatly, constantly exposing our minds and bodies to extreme levels of physical and emotional harm.
Many of us were injured, wounded and many made the “ultimate sacrifice” for others we didn’t even know upon the Alter of Freedom, defending the values expressed in “The Oath.” Others of us who were too traumatized by what they had so often witnessed, spared the enemy the trouble and in spontaneous or planned periods of extreme depression, took their own lives. You see, to most of us “The Oath” means something; it is never to be ignored, temporarily laid aside, mitigated by excusatory political rhetoric, or denied by obeying arbitrary, capricious, or emotional, politically-motivated orders or edicts.
The United States and the law enforcement community have now come to a Y in the road. Do we continue down the road of freedom and civil liberties, led by our patriots whose blood was spilled in paving over the atrocities of man such as slavery and the near eradication of Native Americans so that all men and women could live free and equal?
Or do we take a dangerous detour towards the dark evils of National Socialism and Fascism, where power-hungry, unethical, and morally corrupt politicians seek to control the masses using a pandemic and scare tactics promulgated by an equally corrupt media Progressive Left propaganda machine silencing truth and facts.
And now, what of law enforcement? What role does our community of men and women whose job has historically been to protect the “Rule of Law” take on?
When I came “on the job” as a young man, my role as a peace officer was rather simply explained to me by my wise and experienced colleagues.
“Always remember first that you are a peacekeeper. The heavy emphasis is on the word “peace.” There are the good people and the bad. You first figure out who the good people are and then you protect them from the bad. You are a sheepdog and they are the sheep. The sheepdog watches over his/her flock and protects them from the wolves. Remember that the sheep aren’t always very smart, so it’s going to be your job to protect them from themselves sometimes. You are a community caretaker so to speak. Never abuse or exploit your authority. Always remember your Oath.” And I did.
I like my Band of Brothers and Sisters were not without our flaws. We made honest mistakes, but always in good faith. We did not and do not abuse our law enforcement powers and authority. We kept and continued to keep faith with “The Oath.”
However, the badge is now becoming tarnished by the actions of a new brand of law enforcement administrators and line officers. Their actions are typified in the few examples I provided in the introduction of this article. They are the mindless puppets of ignorant and arrogant politicians seeking to control their citizens. This new breed of law enforcement officers practice “pandemic policing.” They have abandoned all common sense. They ask no probative questions of their masters and lack any independent, objective, fact or science-based methodology to figure out how, why or even if law enforcement should be involved in enforcing the thoughtless, emotionally-based orders and edicts of governors, mayors, county administrators and municipal judges.
Are the “directives,” “instructions,” “regulations,” “orders” and edicts of politicians constitutional, legally enforceable “laws;” or are they instead merely strongly suggested “guidelines?” That is certainly something our state and nation’s highest courts will soon have to decide.
I am reminded that the U.S. Supreme Court and the lower federal and state courts have repeatedly ruled that with respect to 1st and 4th Amendment civil rights of assembly, speech, seizures and searches, governments and law enforcement officers, “must balance the governmental need against the intrusion upon the individual.”
The “governmental need,” refers to the seriousness of a circumstance and an imminent threat of harm, against the “intrusion,” or detention, arrest and/or use of force upon the individual in depriving them of their civil liberties and freedom. In essence, the more serious the circumstance and the more imminent the risk; the more latitude governments and officers have to intrude upon a person’s freedoms.
However, conversely, the less serious and less imminent the risk, the less intrusive governments and their police must be when encountering and confronting the citizen. The courts have ruled that this balance between seriousness, risk or harm and intrusion must be conducted using a factual, objective standard, rather than a subjective one.
So with COVID-19 and the current wave of “pandemic policing” being conducted throughout the nation, the salient question will most certainly be in courts of law and before triers of fact, “What was the factual, scientific, objective basis for many of the draconian orders and edicts that justified the detentions, arrests and/or uses of force?”
That’s right, the courts should rightfully demand that politicians and police factually, scientifically and objectively justify their combined actions in affecting over-intrusive orders and edicts; as well as unnecessary and abusive detentions, citations, arrests and uses of force upon their fellow citizens.
If I were some state and municipal politicians and law enforcement administrators and officers, based upon what you and I have been witnessing on TV, I would be shaking in my boots and putting in my papers. As a thirty-eight year law enforcement practices expert, I would suggest that municipalities and law enforcement agencies have created an entirely new arena of federal and state “COVID Case” litigation that is potentially rife with Monell-type deliberate indifference claims of various violations of civil rights.
The old German WWII military tribunal defense excuse of “I was just following orders” is just not going to resonate with a jury comprised of people who have lost their businesses, jobs, incomes, savings, homes, cars and careers, and have been locked up in their tiny homes and apartments for months in obeyance to “Shelter In Place” orders.
These jurors are going to remember what these pandemic politicians and police did to them, their family members, friends and associates and they are going to want those whom they deem responsible for forcing these hardships upon them to be punished.
I foresee huge punitive damages for the unnecessary actions of both politicians and police who worked together to deny Americans their most basic civil rights guaranteed under the Constitution and our Bill of Rights.
It’s going to be an ugly, cathartic bloodletting where I anticipate that little mercy will be shown to the accused. In fact, if states, municipalities and law enforcement agencies are smart, they will direct their attorneys to settle with the plaintiffs as quickly as possible. I truly fear that no quarters will be taken by jurors deciding upon a plaintiff’s injuries.
Can you imagine police arresting a mother on Mother’s Day for a “social distancing” violation, the District Attorney filing and that mother appearing in court before a jury of her peers – other mothers? Are you serious? If you even think that jury will vote to convict, you live in a much different world and in a much different time than I do.
Remember the Ector County Sheriff’s Department’s heavily armed SWAT team in Odessa enforcing the “bars must be closed order?” Well, it turns out that Texas Governor Abbott, his Lt. Governor, and the State Attorney General all say that no “order” was ever issued. It was only a “guideline” as was only to be discretionally addressed by law enforcement.
So now to the vetted scientific facts about COVID-19 stats in Ector County. Population 166,223; total COVID-19 cases 85 with 59 or two-thirds completely recovered and only four deaths. Statistically, your chances of contracting the C-19 virus in Ector County is .00050 of one percent and .000024 or one percent. Board certified physicians would testify in court that your changes of contracting COVID-19 in Ector County was “statistically insignificant.”
Remember the U.S. Supreme Court’s ruling about balancing the government’s need against the intrusion of the individual? Oops! The government need here is “statistically insignificant” and the Sheriff’s response to the objective fact that essentially no risk of contracting C-19 existed at the time was the use of an armored SWAT vehicle filled with deputies armed with M-4 tactical rifles pointing them at unarmed citizens with their hands up in a parking lot; as well as armed citizens who in the state of Texas had a legal right to be both open and concealed carry in a parking lot which was not legally considered to be a “premises” under Texas law.
Can you imagine the carnage of contagious gunfire from the anxious and antsy deputies should even one of those armed citizens had dropped their hands for a second by mistake. Ladies and gentlemen, those are the exact circumstances of which high-profile lawsuits evolve. I know because I investigate, analyze and opine on them every day.
Now some uber-law enforcement supporters and perhaps even a few experts might disagree with me in asserting that “officers have a legal right to enforce laws.” Fine with me if you want to be that naïve and go there. Case dependent, I might not even disagree with that argument. However, I would respectfully suggest that they pull their heads out of that dark place and back into the “real world” of the courtroom, legal arguments, forensic facts and evidence, the “totality of circumstances” and then consider those pesky pissed off, out of work, lost their businesses and savings jurors who are sure to practice what is referred as “jury nullification” upon reaching a plaintiff verdict in the millions of dollars, along with punitive damages that would make any Mayor, Sheriff or Chief cry like a baby.
So just a word to those yielding political and law enforcement powers. If you have a lick of sense, you will immediately have a Come to Jesus meeting with yourself and knock off this pandemic policing. It is dangerous and extremely damaging to what is left of the law enforcement community’s reputation.
Instead, remember the good people, the sheep and The Oath. Become the peacekeepers and protectors and not the pandemic predators. Finally, remember that there is a big difference between whether you can do something and whether you should do something. Those of us who worked, sacrificed and died to establish a reputation and a legacy of professional law enforcement and community service will not let you ruin the good road we built.