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Constitutional Policing

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In the wake of the mid-August, 2016 report of the U.S. Justice Department’s publication of its findings on the across the board misconduct of the Baltimore Police Department, an article appeared in the Metro Section of the Washington Post.  The article quoted the Executive Director of the Police Executive Research Forum, who said “The very moment you’re trying to press on the accelerator to deal with crime, you’re pressing on the brake to deal with Constitutional issues.  It really is a balancing act.”  NO IT IS NOT.

The idea that the Constitution somehow prevents or hinders crime reduction is not new, but has always been and is a dangerous concept, usually put forth by dangerous people.  There should never be any consideration given to the notion of backing down from the demands of the Bill of Rights, the first 10 Amendments to the Constitution, as a means of crime prevention or crime reduction.

In large measure, the problems we have today with policing and angry, hostile reaction to it by the policed can be traced directly to backing down from or balancing what the Bill of Rights requires of the government’s agents, the police, and not following the advice of the second greatest American, Thomas Jefferson.  What has been done to the Bill of Rights steadily for the past half century, is “. . . trying what meaning may be squeezed out of the text or invented against it . . .”.  Just about every current complaint against the policing today is traceable to “squeezing out meaning” or “invented against” what is written in and intended by the Bill of Rights, yielding unequal protection of the law and a denial of due process of the law.

The way to police reform is more adherence to the Constitution, not less; more objective facts, less profiling, less warrantless searching of persons, less deception, less militarization, more Fifth Amendment silence, less First Amendment speech during police encounters, less fear of arrest.  MORE Constitution!

Any cop, prosecutor or politician — pay attention Mr. Giuliani, Mr. Bratton — who says we must, to be successful, at reducing crime, compromise the protection of the Constitution is really saying we cops are failures because the only way we can enforce the law is to break the law in the process.  People like you and followers of such attitudes and beliefs are the problem.  What happened to your strict construction and plain meaning of the words approach to the Constitution?  The solution is more Constitution, not less.  When you say it’s the folks who live in the minority communities who want law enforcement stepped up in their neighborhoods, I don’t think they would accept or appreciate your telling the truth about what happens during stepped up enforcement — that truth is the police trashing the Constitution.  Instead, you quote, and measure your success with statistics as you fill the jails and prisons with non-violent people, who commit victimless offenses.  Stepped up enforcement is your code for more police militarization, more police deception, more police profiling, more lawlessness by law enforcement, more sidestepping the Constitution.  That’s precisely what such sidestepping is — lawlessness.

If the government and its agents, the police, want to compromise the Constitution in order to be effective crime reducers, then they are admitting their failure if their method of choice is blaming the Bill of Rights.  Blaming the Constitution is declared disrespect for the law.  How can they expect the governed to respect the law if the cops don’t?  I guess they really don’t stand for or like “. . . equal protection of the law”, and “. . . due process of law”.

What we are seeing now is the commonplace hostility, and anger at not only the message of the government’s disrespect for the law, but also the public’s reaction of disrespect for, and violence toward, the government’s messengers, the police.  The remedy then, in part, is compliance by both sides, promoted by universal video recording of all public interaction between the police and the policed.  When it is no longer one’s word against the other’s, but an always truthful camera’s view, both sides’ behavior will tone down; the police will be more lawful (constutional) on the one hand, and the policed more respectful on the other.  Only then will improvement in the current atmosphere be realized.

Whenever we speak of balancing the Constitution, we are really saying backing down from adhering to it — always a bad idea.  The Bill of Rights should never be compromised because it is our time-tested standard.  If we back down from it, or compromise it, it loses its status as our standard of the law, and then we’ve got really big problems.

Policing must be within constitutional bounds, not instead or outside of the Constitution.  Compromise and balance is the appropriate vocabulary and practice for politics; not for the Constitution.  Its design and purpose was to make criminal prosecutions difficult for the government, not easy.  It was designed to stop the ancient abusive methods of obtaining evidence against the accused, most of which sacrificed the dignity and personal security of the accused; unannounced searches of their homes and belongings without warrants, secret interrogations and coercion to extract confessions, secret trials far removed from witnesses favorable to the accused, and without the help of a lawyer.  Those evils are specifically described and prohibited, yet the good guys, the government, want to take them away (compromise) or water them down in their periodically declared wars on crime which are better labeled wars for good statistics or war on, not for the people.  With their militarized look, tone, manner and hardware, it sure does look like war on the people.

This is why we must, as advocated in “A Toast to Silence” use what the Constitution gives us, the most potent defenses that exist against government overreaching; lawfully saying no to giving them the evidence they use against us; no consent to search, the help of a lawyer, public trials of abusive cops instead of secret internal investigations of their wrongdoings, and above all, well timed silence.  “Compromise” and “balance” when it comes to the Bill of Rights is, and always will be, a very bad idea.  Policing is good only when it is Constitutional policing.


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