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Are Police Constitutionally Required to Protect You?

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We assume the job of law enforcement is to enforce the law but is their job to “protect” the citizenry from other citizens? Seems like an odd question and one that, frankly, I don’t think I’ve ever asked before. Presumably some of the laws they are tasked with enforcing are meant to protect the citizenry; but beyond law enforcement, is there a legal requirement for police to protect?

Most people are familiar with the common phrase associated with law enforcement: “to protect and serve“. The implication in this phrase being that law enforcement are both constitutionally empowered and duty bound to protect and serve the community in which they are active.

I’ll set the record straight about this “protect and serve” phrase first. Ideally, yes, this is what we would want our law enforcement to do, but the phrase “protect and serve” does not come from any Constitution… rather, it was the motto of the LA police department that caught on with other police departments around the country. That’s it. It does not come from the Constitution or any legally binding document.

Constitutional Expectations

The federal Constitution says nothing about “police” because the federal government was not originally given any policing power. Why? Because a federalized police force was seen as threatening to liberty since such a force could be used to control and suppress the citizenry.

Technically, the fact that the Constitution gives the federal government no police power hasn’t changed. The Constitution still doesn’t give the federal government any policing power even though the federal government has stretched its enumerated powers to justify a policing power. Since there’s no policing power in the federal Constitution, it’s very difficult to use the Constitution as a standard by which to compare police behavior (the only thing to compare would be the laws being enforced but not the method of enforcement).

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Which leads me to the state constitutions. States are left with all the policing powers. In other words, states, their Constitutions, their courts and their legislatures are the ones tasked with creating a standard for constitutional police behavior .

The North Carolina Constitution does not define the “job” of the police, that is left to the legislature to define. The North Carolina legislature delegates much of this power to The North Carolina Criminal Justice Education and Training Standards Commission. In short, there’s not a very clearly defined “job description” for law enforcement aside from the duties I laid out in my article regarding the Sheriff and case law, which is fundamentally defined, redefined and written by the courts.

Which begs the question, is it a police job to “enforce law” or is “enforce law” something that has simply evolved over time? Police and sheriffs did used to be called “peace keepers/officers” and their main objective was simply keeping the peace. According to one source, “As far as law enforcement goes, the role of the sheriff in colonial America was completely reactive. If a citizen complained, the sheriff would investigate the matter. If evidence could be collected, an arrest would be made. There were no preventive efforts, and preventive patrol was not conducted.”

The point I want to make in this section is that there is no clearly defined job description for “the police” and what little job description there is, varies by state. It does come down to the mindset the training establishes and the case-law that helps the police navigate their “duties”.

The Police As Government

It’s interesting because when Americans think of government, we tend to think of legislatures, presidents, judges and politicians while law enforcement seems to appear way down the list of “government entities”. But, Constitutionally speaking and practically speaking, police are, very literally, government walking; they are government directly applied to our daily lives. They take theoretical law and turn into a reality. The police are government.

In the same way that Americans must see all other branches of government as employees to “we the people” with a job description to which to be held accountable, so must the police. We hired all parts of government to do a job for us: to protect us and our private property from each other and we gave them a job description to do so.

This means that, in the same way our legislatures, executives, courts and the like need limitations, accountability and confinement–because we know that they will abuse and misuse the power they have–we must also translate this perspective to our law enforcement.

Remember, the reason we needed government is because people are selfish and dangerous and need law and order. However, the reason we needed a Constitution is because those same flawed people are now in government and need restraints on their power.

This means that law enforcement, whose actions have direct impact on citizens daily, are just as likely to abuse and misuse their power as all other levels of government and we should never assume otherwise. In that, there needs to be clear accountability and limitations on their power, just like all other levels of government. They are doing a public service for “we the people”.

And yet, notice how difficult it is for me to clearly define for you the job of law enforcement…is it to enforce law, keep the peace, protect the citizenry?

Without a standard by which to compare behavior, abuse and misuse is increasingly likely…and perhaps the goal.

Warrior vs. Guardian Mindset

The mindset of law enforcement is terrifyingly significant. There’s a fine line between being a protector/enforcer of law versus being a brutal arm of government like the KGB were in Soviet Russia. Liberty truly does boil down to how those in law enforcement see their job. Are they servants of the people, working to protect the people and their private property from those who would harm the people–within the confines of the law and the Constitution–or are the rulers of the people, where the people are all suspects, enemies to be watched, controlled and corralled when necessary? Are “we the people” the enemy, suspects at all times, or are we innocent until proven guilty? Is there an “us” verses “them” mindset between those in law enforcement acting as the arm of government or do those in law enforcement reverence their role and the gravity of it as the serve and protect the citizenry they are a part of?

Reading the book The Gulag Archipelago, I realized just how different the mindsets of the Soviet “law enforcement” officers were compared to what I’m accustomed. These KGB officers watched every move, every facial expression, every daily ritual of every citizen. Should there be the slightest hint of change, the individual was immediately arrested and presumed guilty no matter the evidence. Everyone was a suspect. Everyone was guilty. Every citizen was under suspicion of questioning or disrespecting the power of the state and the KGB reveled in the control and coercion they possessed over them.

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This is an imperatively dangerous mindset and one that all American citizens should be invested in preventing here in our country.

So, speaking directly to you, citizens and to you, law enforcement, it’s critical to know the mindsets being taught to our police if we the citizens are to hold law enforcement accountable to their ultimate job, which is to protect and maintain the Constitution.

This is why it’s important to know that increasing number of law enforcement officers are being taught to engage in a “warrior” mindset rather than a “guardian” mindset. A study by Clemson University (my undergraduate alma mater) found that “officers who responded more positively to a warrior mind-set were also apt to respond more positively to the use of force in a hypothetical scenario. Likewise, officers who responded more positively to a guardian mind-set were more apt to view their primary function as being that of a community partner. Younger officers with less experience in their communities were more likely to lean toward the warrior mind-set.” Further, many police and sheriff departments throughout the country have implemented a form of training called, “killology” or the training that leads the police to always be ready to kill when necessary.

“When I first started, it was, Ask. Tell. Make,” said Ernie Stevens, a former police officer. “I’m going to ask you to do something, I’m going to tell you, and if you don’t respond I’m going to make you…Teaching that [killology] in the academy, it does a disservice because what they’re doing is they’re preparing these cadets for war and they’re scaring them upon graduation that the moment you graduate, you have to go out there and be careful because everybody wants to kill you.”” (Washington Post)

Again, please remember mindset. Should our police see the streets of this country as a battlefield or should they see them as streets of their fellow Americans? It’s not a far fall from seeing the streets as a battle field to seeing every citizen as a suspect to be controlled and coerced. Liberty truly does hinge on how these brave men and women see their role in American life. They must enter into this role with the utmost care, reverence and trembling because it has the potential to be the most destructive role to liberty or the most protective role of liberty. I said it before and I’ll say it again. Law enforcement has the potential to be the tyrant’s greatest weapon or greatest foe.

Consider the claims of abuse of police power (no-knock warrants, massive drug incarceration, police brutality) coming from those in the liberal camp? And then consider the claims of abuse of police power (COVID regulations and arrests, vaccine passport implementation, standing down during riots or school board meeting skirmishes) coming from those in the conservative camp? The militarization and federalization (unconstitutionally) of our police has been devastating and simply bringing law enforcement back to its local roots would help tremendously; but, mindset is also key. How aware are we as Americans of what our police forces are being taught? We’re their employers. Do we even know?

Do we care to know?

Supreme Court Precedent

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I’ll conclude by circling back to my first question. Are police constitutionally required to “protect” the American citizenry?

Based on Supreme Court precedent, the short answer to this is no.

While there are numerous cases and precedent for this, here is the description of one such case:

“In Warren [Warren v. District of Columbia 1981], two men broke into the plaintiffs’ house and while they were raping Miriam Douglas, plaintiffs Warren and Taliaferro called the police, reported the break-in, and requested assistance. A few minutes later, a police car drove through the alley behind the house. Its occupants did not follow the standard District of Columbia procedure of stopping the car and checking the back entrance to the house. One officer did knock on the front door, but left when he received no answer. Warren’s second call to the police was never dispatched by the police operator. The intruders subsequently discovered Warren and Taliaferro and took them at knifepoint to their own apartment where they sexually assaulted them for the next fourteen hours.

The women sued the police, but the appellate court held that the “fundamental principle of American law is that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.” The women had argued that, since they had twice-alerted police to the crimes being committed, the police had a duty to protect them. But the court ruled in favor of the police, following the ‘well-established rule that official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection‘.”

Essentially, the Court established that unless an individual is in direct custody of the police, the police have no Constitutional duty to protect individual citizens. The dissenting justices in this case argued that, “no one is contending that the police must be at the scene of every potential crime. . .They need only act as a reasonable man would under the circumstances. Thus, the Warren decision, by rejecting the two-prong test, hinders the development of what seems to be a justifiable standard of accountability.”

While there is so much here to unpack, I don’t want to overwhelm with too much information, so I’m going to conclude with this:

All police are taught case law…they know this Warren case and the others based upon this case (consider videos you’ve seen of officers standing by while individuals are beaten or attacked). Liability and accountability are greatly lacking in our government in every level. The police are the direct applicants of government in our daily lives, therefore, liability and accountability must be paramount. But, standards and job descriptions matter here–something that seems to be in short supply, leaving their power to float around in the realm of every changing arbitrary power as defined by “case law”.

Mindset matters friends, mindset matters. Our government is devouring power and attempting to do all it can to take complete control over its citizenry (as government is expected to do). One critical piece of this puzzle is to slowly erode the mindset of our law enforcement officers, replacing the mindset that they are one of us, our guardians and protectors, shielding the citizenry from those who would do us harm while also guarding against a government that would abuse and oppress, with a warrior mentality, a mentality of constant suspicion, control, coercion and power.

So, I’ll leave you, my fellow employers of government, with this question to chew on: if it’s not the job of the police to protect what is their job?

The Liberty Belle

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