Un­der­stand­ing Lib­erty

Serve Daily - - NEWS - By Josh Daniels

Out­law­ing Bois­ter­ous Lib­erty: Lessons from Fer­gu­son “The bois­ter­ous sea of lib­erty is never with­out a wave.” –Thomas Jefferson

In the wake of the “of­fi­cer in­volved shoot­ing” of an un­armed teenager in Fer­gu­son Mis­souri we saw a num­ber of disturbing things. On the one hand protests turned sour as un­scrupu­lous in­di­vid­u­als took ad­van­tage of the chaos by loot­ing lo­cal busi­nesses. On the other hand we saw disturbing uses of po­lice power to dis­perse peace­ful pro­test­ers and even cre­den­tialed jour­nal­ists. Such po­lice tac­tics in­cluded fir­ing rub­ber bul­lets into crowds of un­armed pro­test­ers and the use of tear gas grenades. The take­away of this and sim­i­lar in­ci­dents is that it is a crime to “fail to com­ply” with the “law­ful” or­ders of a po­lice of­fi­cer. This sort of le­gal ar­range­ment gives to the po­lice nearly un­lim­ited dis­cre­tion to cre­ate rules of con­duct on the spot for which of­fi­cers may then use force in or­der co­erce com­pli­ance de­spite ev­i­dence of any other un­der­ly­ing crim­i­nal ac­tiv­ity. This is fre­quently the case when cit­i­zens at­tempt to film the po­lice. They are or­dered to leave and of­ten cited with disor­derly con­duct if they refuse.

A lo­cal ex­am­ple in­cludes the ar­rest of a San­taquin man in July who was at­tempt­ing to fight a brush fire that threat­ened nearby homes un­til fire fight­ers ar­rived. Once the po­lice of­fi­cer ar­rived in ad­vance of the fire depart­ment he or­dered the man to stop and when the man re­fused, de­cid­ing in­stead that it was more im­por­tant to con­tinue dous­ing the fire, the of­fi­cer ar­rested him for disor­derly con­duct and ob­struc­tion of jus­tice.

Pub­lic or­der statutes that first cre­ated disor­derly con­duct of­fenses had their roots in 19th cen­tury laws aimed at break­ing up street brawls over la­bor and im­mi­gra­tion is­sues in in­dus­trial towns— hardly at pesky cit­i­zens ex­er­cis­ing their first amend­ment rights. The disorder in many mod­ern of­fenses is usu­ally pre­cip­i­tated by po­lice who bark com­mands at cit­i­zens oth­er­wise act­ing law­fully. Cit­i­zen re­luc­tance to com­ply with th­ese de­mands then be­comes the ba­sis for a disor­derly con­duct ar­rest.

The prob­lem with this ar­range­ment is it shifts the de­ter­mi­na­tion of al­lowed be­hav­ior from one of clear statute or or­di­nance to po­lice of­fi­cer dis­cre­tion. While it is im­por­tant for po­lice to stop crime when pos­si­ble, es­pe­cially when pro­tect­ing the rights of in­di­vid­u­als, too fre­quently the def­i­ni­tion of ac­cept­able be­hav­ior has be­come sub­ject to the whims of a po­lice of­fi­cer even when not sub­stan­tively un­law­ful. As we re­flect on the events in Fer­gu­son and con­sider the many other in­ter­ac­tions with law en­force­ment fre­quently posted in in­ter­net videos we need to re­mem­ber that ours is a coun­try of lib­erty—some­times bois­ter­ous lib­erty. Po­lice should not be given wide dis­cre­tion to abridge the free­dom of law­ful cit­i­zens.

We should be alarmed at the risk to crit­i­cal con­sti­tu­tional lib­er­ties by the mis­ap­pli­ca­tion of disor­derly con­duct statutes and the broad use of po­lice of­fi­cer dis­cre­tion. The bois­ter­ous waves of lib­erty are not a rea­son to ex­tin­guish the flames of free­dom.

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