If you haven’t noticed, several states have started issuing a “shelter-in-place” order, essentially ordering citizens of the state to stay indoors, with a few exceptions to the rule (i.e. getting groceries; going to the doctor etc). Since it is the state that is issuing the order, it is up to the state law officials to enforce the order (with the help of the national guard in a few states).
This leads to a very interesting conundrum of “enforcement” and “implementation”, especially in a country like the United States. How will the police and the national guard navigate such extreme levels of enforcement? Do they really want to arrest, detain or fine a citizen for leaving their house and not going to the grocery store? How will they know if citizens are going to the grocery store or not? Will they stop every citizen who is driving? These questions only increase if the “shelter-in-place” is mandated at the federal level.
So, for today, let’s think about a few points related to these questions.
One: Law Is Only As Powerful As Its Enforcement
This statement is a rather simple, theoretical, reality. A law is no good, if the threat of being punished for breaking the law is no good.
Really, how many of you would freely speed on the highways if there were no such thing as police officers?
Be honest now.
All of you?
Likely most, if not all of you would speed freely and easily because you know there’s no threat of punishment. And yet, you’re still breaking the law. There’s still a sign that says 60 mph. But, the hard reality is, that sign means nothing without anyone or anything to enforce it.
This applies to all levels and aspects of government. Government is only as good as the execution of the law government was first created to make.
John Locke says, “But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.”
In other words, there needs to be a separate branch, tasked solely with the job of enforcing the laws that the legislative makes. Without this branch, without some force to execute the law, the laws passed by the legislative (or yes, at times mandated by the executive itself) are effectively null.
Two: What Happens When the Laws Passed Are Against the Constitution (of State or Federal Government)?
That is the question, isn’t it? The executive has two jobs: see that the laws be faithfully executed and support and protect the Constitution. But what if those two jobs clash?
We know it’s the executive branch’s job to execute the law. The President (governor) is tasked with seeing that the laws be faithfully executed. If the executive branch refuses to do so, it is throwing off its very reason for existence. And yet, what happens when the laws that need execution are outside of the confines of whatever Constitution applies (be it state or federal)? It is also the executive’s job to uphold and defend the Constitution, which means that an executive that is told to execute a law that is unconstitutional is facing a quandary.
Which is what many of our law enforcement agents are starting to face today. The kicker in this current situation is, the federal and state Constitutions are effectively on hold because of a national emergency. And yet, that doesn’t remove the executive’s respect or appreciation for the fundamental Constitutional rights that it protects. Law enforcement agents in America are American after all, and all the principles of freedom and liberty we’ve discussed so far, are not foreign ideas to them. This is no doubt just as new and uncomfortable for them as it is for us.
Consider this. Is it not such a privilege that we, in America, can get in our car and go anywhere, whenever we want?
For the first time in my life, I’m really cherishing the fact that, where I live, I can still get in my car and go wherever I want to go whenever I want to go somewhere. It’s a pretty fundamental right to be able to leave your house and drive somewhere without that liberty being hindered by government.
And yet, this is the precise liberty that many governors and mayors are asking their law enforcement agents to violate. The cause of such enforcement is not the point of this article, rather the uniqueness of the situation. No matter the cause, it goes against the very nature of an American law enforcement agent to detain or punish someone for simply leaving their own house in their own car and going somewhere. Or for that matter, congregating in a group that may now be deemed too large.
And this is the question isn’t it? This is a fascinating case study for all of us freedom loving Americans. We need to pay close attention. How will our law enforcement officers handle such increases in power? Will they even enforce it? How will they enforce it?
How they handle this situation may go a long way in telling us how they would handle a situation much worse (i.e. government bans guns, who is going to gather those guns?; government bans free speech, who is going to arrest people for speaking?). Yes, these officers have a duty to enforce the law (state or federal depending on who we’re talking about), but they also have a duty to protect the Supreme Law from being violated. What happens when the two clash?
The situation with the coronavirus will help answer this question.
Three: What is happening in reality? The Police Are Trying to Tread A Fine Line Now
Right now, the police are struggling with how to handle these “shelter-in-place” laws. Even a New York Times article was willing to discuss the difficulties the police are facing, in their article “Police Tread Lightly as Pandemic Spreads” .
The executive director of the Police Executive Research Forum, who, according to the NYT is in regular contact with police officials nationwide said, “Departments are triaging crime, the general guideline is to avoid arresting someone unless it’s absolutely necessary.”
The article states that police departments in cities like Chicago have told their officers “not to use stay-at-home orders as a pretext to stop residents” and “in San Jose, a memo went out saying the orders could not be used for vehicle or pedestrian stops.”
“We’re going to be the ones holding the bag in terms of rebuilding community trust, if we’re not mindful of exercising discretion with these orders,” Chief Garcia said in a phone interview.
The article states that, “the orders include many exceptions and legitimate reasons that people can be outside, which include grocery shopping, exercising and walking the dog. Although violating public health directives carries a penalty in many places, officials have yet to put in place strict laws around self-isolation.”
The article quotes Maj. Bob Bromage of the Beaufort County Sheriff’s Office in South Carolina: “This is a very, very stressful time, and we will approach our job with compassion…”
Further, the article states that most police departments are taking an education over enforcement approach, “preferring to warn people rather than to arrest them”.
“If we see large groups, we’ll go and talk to them, educate them about it and try and get compliance,” Chief Terence Monahan of the New York Police Department told the local news station NY1 before New York State’s stay-at-home order went into effect on Sunday night.
In another article, asking a similar question, the Chief Police of San Jose discusses how his department plans to handle the shelter-in-place order.
“We’re not using this ordinance as probable cause to make car stops or pedestrian stops,” Garcia said. “I want to make that clear. And also, I want to make clear that no, no one is going to jail over this either.”
The articles says: Garcia said his officers will visit bars and restaurants that are in violation. Officers will speak with the owners, but they don’t plan to cite them, even though that is an option.
“I want to make clear to our community that we are not instituting martial law here,” Garcia said.
Hmmm, and that’s just it, right? What happens if they are supposed to enforce martial law? Will they immediately change or will they still struggle figuring out how to enforce laws that, without the present circumstances, appear utterly intrusive and entirely unconstitutional? This appears to be an uncomfortable situation for them, and that’s a good thing! Our law enforcement agents are not accustomed to possessing dictatorial like powers and are therefore holding them gingerly. Which is not what officers in many other countries are doing. Take at look at these articles if you need proof: Greek Priest Arrested; Philippine Military Operation; Man Arrested; 400 arrested for violating curfew.
For now, it appears that our law enforcement agencies are attempting to handle the situation with care and dignity. Let’s hope that doesn’t change.
How the execution of these new “shelter-in-place” laws (or potential martial law?) will all play out is still unknown. But, as freedom loving Americans, pay close attention to how those in the law enforcement community handle enforcing these new restrictions on otherwise harmless activities. Do they execute the law and with what level of force? The answer to this question will tell us a lot about how these same law enforcement agents may handle more threatening expansions of executive power.
The Liberty Belle