Police barred from Vermont gun range.

[Shellback]

Pick a side. (http://www.foxnews.com/politics/2013/01/28/cops-barred-from-gun-range-over-semi-automatic-rifle-ban/)

The battle over the right to bear arms is flaring in Vermont, where a local gun range has moved to prohibit the Burlington Police Department from training at its facilities after the City Council voted to advance a measure banning semi-automatic rifles and large-capacity magazines.

[Al T.]

Oops, collateral damage. I'd love to see more "Barret" doctrine by the gun makers, but suspect that unfortunately it won't happen.

[Kyle Reese]

Unintended consequences...

[Two45sMakeARight]

Good move considering the rampant crime wave with assault weapons that Burlington VT has! /sarcasm off

That town council sounds like a bunch of reactionary, knee jerks to me. Wait, wasn't that what all the commie hippies were calling the establishment back in the 60's?

The worm has turned...

[SecondsCount]

I like the thought behind it but the police need training so this really doesn't help anybody.

Maybe they could tell the police that they could train, but they have to leave their evil rifles and magazines at home.

[Haraise]

I like the thought behind it but the police need training so this really doesn't help anybody.

Maybe they could tell the police that they could train, but they have to leave their evil rifles and magazines at home.

As a private gun range, they're losing their business to make a statement. You're banned is a much better statement than you can come here, if.

What they're doing is really quite admirable, taking a loss to actually cause the government problems for expanding control. If it doesn't cause an issue, it's just static.

[TGS]

I like the thought behind it but the police need training so this really doesn't help anybody.

Sure it does. It's a great negotiation tactic.

[YVK]

Sure it does. It's a great negotiation tactic.

Provided that police has any influence over the city council, and city council accepts any responsibility for police training. The council can simply say take your training money elsewhere. S
I'd also feel better about this move if I knew that Burlington PD supported the ban measure, although I guess this is optional.
I'd also feel better about this move's practical impact if I knew that the PD had nowhere else to go to train, 'cause otherwise the range isn't causing any issues.

On a separate note, it is not known if they are taking a financial hit. My indoors range continues to have wait lines for shooting lanes even during these times of ammo shortages, they don't need a .gov contract.

I'd be very interested in a followup on this story.

[BLR]

This is just a micro/local version of the national "debate." Quotes because it is far, far from an actual debate. The anti's only make an emotional argument as far as I can tell.

The quote from the Burlington PD doesn't inspire me with confidence in them.

The Councilmen need to start seeing ramifications and consequences of their stupidity and "hip shot legislation."

Good on the range. Bad on the PD and the city. I say bad on the PD because they should be supporting the tax payers rights and allowing them the same opportunity for self defense as police themselves.

[Tamara]

I'd also feel better about this move if I knew that Burlington PD supported the ban measure...

Does collecting a paycheck for enforcing it count as "support"?

[Jac]

Does collecting a paycheck for enforcing it count as "support"?

Yep. Until they release a statement that department policy will be to ignore such laws and fire anyone who makes an arrest or citation under them, they are part of the problem.

[YVK]

Does collecting a paycheck for enforcing it count as "support"?

Collecting a paycheck - no, enforcing it in any way whether they are paid for it or not - yes.

Bill, in fairness of discussion, the quote from PD doesn't confirm their position one way or another. in fact, the way it is reported, it is unclear whose action they find regrettable - range's, council's, or both.

Next question: Burlington PD officers remove their uniforms, come to the range as private citizens, shoot and practice and whatnot, pay cash or with personal credit cards, go home. What's range going to do? Said officers will submit their receipts for reimbursement later, but at this point they act as private citizens.

[BLR]

Bill, in fairness of discussion, the quote from PD doesn't confirm their position one way or another. in fact, the way it is reported, it is unclear whose action they find regrettable - range's, council's, or both.

True, but I'd have liked it better if they took a stand one way or the other though.

That said, this is par for the course. No one wants to take a stand, and especially not the politicians. This is why there is even a discussion on guns and magazine limits. No one wants to limit the number of axes I own. No one seems to care about my professional background - all these, including guns, are just tools. It is up to the person to determine how any tool is used. From guns, to knives, to education, to hammers. The person holding the tool determines the value of the action.

We, as citizens, need to hammer that point home to the droolingly stupid politicians. It's not their place to waste our money, limit our freedom, and determine our future by using ambiguity. Those police officers likely were sworn to protect the constitution? Are they doing that through this course of action?

We need to ensure getting elected to office isn't winning the lottery anymore, and hold our public servants to a higher standard. The PD failed that higher standard IMO.

[YVK]

Those police officers likely were sworn to protect the constitution? Are they doing that through this course of action?

We need to ensure getting elected to office isn't winning the lottery anymore, and hold our public servants to a higher standard. The PD failed that higher standard IMO.

Don't know. As I mentioned in sheriff's thread, it is not their job to make political statements. We rightfully crtiticize police who get into a political argument on the other side of a barricade - the NYS police and that police chiefs group come to mind - for forgetting their job is to uphold the law, not politics or policy development. I think it should apply to PDs who are with us - uphold the law is their job, nothing else.
A professional course of action on PD's part would be convey to the city council in private that the ban will not be enforced or submit their resignation en masse if ban passes through. So far I have no knowledge that Burlington PD haven't done the former and wouldn't do the latter. Which goes back to my very first notion that without knowing PDs true position it is hard for me to fully get behind range's act, although I support its spirit.

[David Armstrong]

Don't know. As I mentioned in sheriff's thread, it is not their job to make political statements. We rightfully crtiticize police who get into a political argument on the other side of a barricade - the NYS police and that police chiefs group come to mind - for forgetting their job is to uphold the law, not politics or policy development. I think it should apply to PDs who are with us - uphold the law is their job, nothing else.
QFT! Folks, the idea that the police should decide whether or not to enforce a law based on whether they agree with it or not is a very, very dangerous idea.

[BLR]

Don't know. As I mentioned in sheriff's thread, it is not their job to make political statements. We rightfully crtiticize police who get into a political argument on the other side of a barricade - the NYS police and that police chiefs group come to mind - for forgetting their job is to uphold the law, not politics or policy development. I think it should apply to PDs who are with us - uphold the law is their job, nothing else.
A professional course of action on PD's part would be convey to the city council in private that the ban will not be enforced or submit their resignation en masse if ban passes through. So far I have no knowledge that Burlington PD haven't done the former and wouldn't do the latter. Which goes back to my very first notion that without knowing PDs true position it is hard for me to fully get behind range's act, although I support its spirit.

True enough.

[joshs]

Folks, the idea that the police should decide whether or not to enforce a law based on whether they agree with it or not is a very, very dangerous idea.

While I tend to agree, they still must make an independent decision of whether a given law conflicts with the Constitution. This doesn't necessarily have anything to do with whether they agree with the law or not, but is part of the their duty to uphold the laws of the United States.

[TGS]

While I tend to agree, they still must make an independent decision of whether a given law conflicts with the Constitution. This doesn't necessarily have anything to do with whether they agree with the law or not, but is part of the their duty to uphold the laws of the United States.

I also agree with you, but we can't have police passing their opinion on everything and whether it fits their notions of legitimacy. There's a reason we have courts, and a reason we have police. We derive our stability and legitimacy of governance from this. Let every cop become his own constitutional court of review on what he should enforce, and we'll go the way of every other country where the police could be bought to enforce cherry picked laws to fit a certain disposition.....like Pakistan or the Roman Empire.

[Shellback]

QFT! Folks, the idea that the police should decide whether or not to enforce a law based on whether they agree with it or not is a very, very dangerous idea.
They do it all of the time and it's part of the job, it's called officer discretion.

[Haraise]

They do it all of the time and it's part of the job, it's called officer discretion.

It's a bit hard to believe the seeming support of 'I don't make the law I just enforce it' here.

One would have thought, that if anything was learned from the 20th century, that 'I was just doing my job' tends to lead to horrifying consequences.

[Tamara]

QFT! Folks, the idea that the police should decide whether or not to enforce a law based on whether they agree with it or not is a very, very dangerous idea.

I also agree with you, but we can't have police passing their opinion on everything and whether it fits their notions of legitimacy.

Can you give me an example of a hypothetical law you think that the police should not enforce because they don't agree with it?

[Jac]

QFT! Folks, the idea that the police should decide whether or not to enforce a law based on whether they agree with it or not is a very, very dangerous idea.

So, they should just follow orders?

Snark aside, I don't see how it's all that dangerous. Worst case, a few people get away with actual crimes; but it's more likely that useless, stupid and unconstitutional laws (such as drug laws, gun laws, petty zoning violations, etc.) would be unenforced.

[TGS]

Can you give me an example of a hypothetical law you think that the police should not enforce because they don't agree with it?

If we're talking about systematic, organized armed resistance to the government by our police forces, stuff like targeting of ethnicities comes to mind. If a law was passed to confiscate all guns, I think that would rank up there. I don't think it's a black and white, cut and dry thing to make many absolutist claims on. It depends on the severity, IMO. I think there are stupid laws all around us that I don't agree with...but I don't think they all merit the same response of "kill the po-leece" like I've seen called for and alluded to lately. I think that's the difference between myself and some others here...I don't view a magazine capacity limit or many laws to be the same severity as, "Round up the Jews and kill'em!"

What it comes down to for me is that I think having a non-functioning government split with armed, opposing wills is a very, very dangerous thing; much more dangerous than a mag limit which can still be fought in court using a working form of government. Thus, I feel that it should only be a last resort......not the default response for any gun control whatsoever.

[Tamara]

If we're talking about systematic, organized armed resistance to the government by our police forces...

I wasn't talking about that.

I was talking about a hypothetical law that, if police were to look the other way and just generally not enforce, you wouldn't consider them to be "passing their opinion on everything and whether it fits their notions of legitimacy," but rather doing the right thing by refusing to enforce a law that was just manifestly wrong?

[TGS]

I was talking about a hypothetical law that, if police were to look the other way and just generally not enforce, you wouldn't consider them to be "passing their opinion on everything and whether it fits their notions of legitimacy," but rather doing the right thing by refusing to enforce a law that was just manifestly wrong?

hmmmm.....if the law is "manifestly wrong," then I imagine police would be justified in not enforcing it.

It would depend on how you judge whether something is manifestly wrong or not. This is why I'm not an advocate for police doing whatever they want. You're not going to get a concrete answer from me for this reason. We entrust certain public officials, such as police, with limited discretion for this purpose....if a LEO chooses to do so, he needs to be sure he's in the right....ergo, if it's something that is still in debate by constitutional scholars and the public at large, he/she has a good chance of being outside their lane.

Again, for the reasons I've outlined you're probably not going to get a concrete answer out of me.

[hufnagel]

So, they should just follow orders?

Snark aside, I don't see how it's all that dangerous. Worst case, a few people get away with actual crimes; but it's more likely that useless, stupid and unconstitutional laws (such as drug laws, gun laws, petty zoning violations, etc.) would be unenforced.

better 100 crimnals go free than 1 innocent man go to prison

there's a quote for that someplace. and it's how the justice system is supposed to work. INNOCENT until proven guilty. as been said before these kinds of laws do nothing but make innocent people criminals, without any cause or justification other than they have something someone else thinks is "scary."

[Tamara]

hmmmm.....if the law is "manifestly wrong," then I imagine police would be justified in not enforcing it.

It would depend on how you judge whether something is manifestly wrong or not. This is why I'm not an advocate for police doing whatever they want. You're not going to get a concrete answer from me for this reason. We entrust certain public officials, such as police, with limited discretion for this purpose....if a LEO chooses to do so, he needs to be sure he's in the right....ergo, if it's something that is still in debate by constitutional scholars and the public at large, he/she has a good chance of being outside their lane.

Again, for the reasons I've outlined you're probably not going to get a concrete answer out of me.

That's fair enough. I didn't really expect it was the sort of question with a concrete answer. :)

[David Armstrong]

While I tend to agree, they still must make an independent decision of whether a given law conflicts with the Constitution. This doesn't necessarily have anything to do with whether they agree with the law or not, but is part of the their duty to uphold the laws of the United States.
They can make that decision but they should not allow that decision to interfere with how they perform their duty. What lots of folks seem to forget is that under the Constitution the Supreme Court is considered the final arbiter of what is legally constitutional, not each individual person.

[David Armstrong]

They do it all of the time and it's part of the job, it's called officer discretion.
Sorry, that is incorrect. Officer discretion is the ability to decide if enforcing a law will best serve the interests of society in this particular incident. It does not extend to deciding if a law should ever/never be enforced.

[David Armstrong]

So, they should just follow orders?

Snark aside, I don't see how it's all that dangerous. Worst case, a few people get away with actual crimes; but it's more likely that useless, stupid and unconstitutional laws (such as drug laws, gun laws, petty zoning violations, etc.) would be unenforced.
But the problem that most ignore is this becomes a two-way street. What you might consider useless, stupid and unconstitutional another person might consider essential, well thought out and constitutional. If it is OK for an officer to ignore a law that he disagrees with because you like the law then it has to be OK for an officer to ignore a law he disagrees with that you don't like. Would it be OK with you if an officer wrote you for speeding because he though the speed limit should be 50 instead of 65? What if he thought making meth in the apartment next to you was OK, or distributing child porn? Or should he follow the law as determined by the legislature and the courts?

[ToddG]

Would it be OK with you if an officer wrote you for speeding because he though the speed limit should be 50 instead of 65? What if he thought making meth in the apartment next to you was OK, or distributing child porn? Or should he follow the law as determined by the legislature and the courts?

While I understand what you're saying, I think the above comment fails to recognize there is a substantial difference between your first example (giving a speeding ticket at a statutorily legal speed) and the others (failing to arrest for obvious criminal acts). Ignoring crime is one thing; arresting someone for legal behavior is something totally different.


What lots of folks seem to forget is that under the Constitution the Supreme Court is considered the final arbiter of what is legally constitutional, not each individual person.

Federal Circuit and District Courts make constitutionality decisions all the time. So do state courts at all levels. So, in essence, do legislatures when they pass laws. So why not executive branch people when they enforce them?

Why do federal employees swear to uphold the Constitution, not federal law? :cool:

[tanner]

Police discretion can be used for civil infractions or misdemeanor offenses. Takes us back to the days when cops were "Peace Officers" as opposed to "Law Enforcement Officers"...

Felonies on the other hand, provide no room for discretion. Police don't have to go looking for those particular felony crimes, but if confronted with them, they are required to take action.

[David Armstrong]

While I understand what you're saying, I think the above comment fails to recognize there is a substantial difference between your first example (giving a speeding ticket at a statutorily legal speed) and the others (failing to arrest for obvious criminal acts). Ignoring crime is one thing; arresting someone for legal behavior is something totally different.

I disagree that there is a substantial difference. The essential concept is the same to me. If you think that officers should be allowed to enforce or not enforce laws based on their own belief as to the rightness of the law then it should work both ways.

Federal Circuit and District Courts make constitutionality decisions all the time. So do state courts at all levels. So, in essence, do legislatures when they pass laws. So why not executive branch people when they enforce them?
I'd disagree that legislatures determine constitutionality when they pass laws. If all laws were constitutional just because the legislature passed the law why would we need the courts to have judicial review? Or am I misunderstanding your point? If everybody gets to decide on the constitutionality of the law doesn't that mean nobody gets to decide? I think the executive branch has the authority to decide to enforce or not as part of the separation of powers, but that enforcement is not conditional on deciding constitutionality. That is the realm of the judiciary. For example I know of many sheriffs departments that do not enforce traffic laws. But it is a political decision, not because the Sheriff has decided that traffic laws are unconstitutional.

Why do federal employees swear to uphold the Constitution, not federal law?
Because they can't get hired unless they do?:)

[David Armstrong]

Police discretion can be used for civil infractions or misdemeanor offenses. Takes us back to the days when cops were "Peace Officers" as opposed to "Law Enforcement Officers"...

Felonies on the other hand, provide no room for discretion. Police don't have to go looking for those particular felony crimes, but if confronted with them, they are required to take action.

Actually there are a lot of felonies where officers use discretion, and it has been that way for a long time.

[Tamara]

I'd disagree that legilatures determine constitutionality when they pass laws.

I would suppose that they presume the law to be constitutional, else they would not be passing it in the first place.

[David Armstrong]

I would suppose that they presume the law to be constitutional, else they would not be passing it in the first place.
Right, that is the way the system is set up. Laws duly passed by the legislature are considered to be constitutional until the judiciary determines otherwise.

[Tamara]

Right, that is the way the system is set up. Laws duly passed by the legislature are considered to be constitutional until the judiciary determines otherwise.

Yes, I know. That is not my point.

What I am saying is that the legislators who pass the law do so with the presumption that it will withstand judicial scrutiny. Laws are rarely passed by people who think "Well, this is unconstitutional as all hell, but what the heck, let's pass it anyway."

[ToddG]

I disagree that there is a substantial difference. The essential concept is the same to me. If you think that officers should be allowed to enforce or not enforce laws based on their own belief as to the rightness of the law then it should work both ways.

Disagree... and so do the courts. Officers generally have immunity from both prosecution and suit for failing to enforce a law. They are routinely convicted/sued for taking actions beyond what is statutory. Your own example makes this abundantly clear.

If I'm in a 55 zone and an officer gives me a ticket for going 50, what is going to happen? It will get thrown out, and I have at least a colorable claim against the officer.

If I'm in a 55 zone and an officer fails to give me a ticket for going 60, what is going to happen? Absolutely nothing. Even if I then crash into a bus full of infant nuns and slay them all, the officer hasn't committed any crime or tort.


I'd disagree that legislatures determine constitutionality when they pass laws.

Of course they do. Laws are considered constitutional on their face until a court declares them otherwise.


If all laws were constitutional just because the legislature passed the law why would we need the courts to have judicial review?

You're equivocating back and forth between someone who can make a judgment about constitutionality and the final arbiter (to borrow your phrase).

By your logic, why would we need need lower courts to have judicial review? SCOTUS is the final arbiter. But of course lower courts, and legislatures, and executives need to make decisions about constitutionality on matters which have not yet been decided by SCOTUS.


For example I know of many sheriffs departments that do not enforce traffic laws. But it is a political decision, not because the Sheriff has decided that traffic laws are unconstitutional.

I'm not sure what that example -- which has nothing to do with constitutionality by your own admission -- has to do with the discussion at hand. Are you suggesting that a Sheriff can choose to ignore a law for political reasons, but not because he thinks said law is unconstitutional?

[David Armstrong]

Disagree... and so do the courts. Officers generally have immunity from both prosecution and suit for failing to enforce a law. They are routinely convicted/sued for taking actions beyond what is statutory. Your own example makes this abundantly clear.
I think that you are arguing something I have not said. If you dislike my example, fine, but the concept remains intact...if individual officers have the right to decide if the law should be enforced or not if you like their position, then they also have the same right to decide if it should be enforced or not when you don't like their position.

Of course they do. Laws are considered constitutional on their face until a court declares them otherwise.
That is not a determination of constitutionality, that is an assumption of constitutionality. If it were an actual determination, again, there would be no need for judicial review.

By your logic, why would we need need lower courts to have judicial review? SCOTUS is the final arbiter. But of course lower courts, and legislatures, and executives need to make decisions about constitutionality on matters which have not yet been decided by SCOTUS.
But once the Court has ruled, then the others do not have the right to counter that ruling with their own rulings. And lower courts are supposed (I know, they don't!) to rule in accordance with previous findings of the Court. Since the Court does not, cannot and will not hear all cases, then lower courts get to hear them. And if it wants to then the Supreme Court can look at the case. And again, I reject the idea that legislatures and executives decide constitutionality. They can assume and believe, but those beliefs and assumptions have no bearing on the actual determination, which rests with the judiciary. If the President say something is consitutional and the Court say it is not, who gets to decide?

I'm not sure what that example -- which has nothing to do with constitutionality by your own admission -- has to do with the discussion at hand. Are you suggesting that a Sheriff can choose to ignore a law for political reasons, but not because he thinks said law is unconstitutional?
I am suggesting representatives of the executive, such as the Sherrif, can choose to not enforce a law for many reasons. But the right to determine constitutionality rests with the judiciary, not the executive. If the Sheriff has the right to determine Consitutionality, which Sheriff gets to be right if Sheriff "A" says something is constitutional and Sheriff "B" says it is unconstitutional?

[ToddG]

I think that you are arguing something I have not said. If you dislike my example, fine, but the concept remains intact...if individual officers have the right to decide if the law should be enforced or not if you like their position, then they also have the same right to decide if it should be enforced or not when you don't like their position.

Whether I agree with the officer's position or not wasn't the issue. The issue I raised was the difference between "not enforcing an existing law" and "enforcing non-existant law." Going back and reading what I wrote, I feel fairly confident that was clear.


That is not a determination of constitutionality, that is an assumption of constitutionality. If it were an actual determination, again, there would be no need for judicial review.

Fine, I concede the point. Since no determination of constitutionality has been made until a law is reviewed by the courts, I assume you will likewise concede, therefore, that it's perfectly reasonable for law enforcement officers to question the constitutionality of laws and refuse to enforce those they believe are unconstitutional prior to judicial review... since for them to do otherwise would be a violation of their oath of office.


They can assume and believe, but those beliefs and assumptions have no bearing on the actual determination, which rests with the judiciary. If the President say something is consitutional and the Court say it is not, who gets to decide?

According to the courts, the courts. :cool:


I am suggesting representatives of the executive, such as the Sherrif, can choose to not enforce a law for many reasons. But the right to determine constitutionality rests with the judiciary, not the executive. If the Sheriff has the right to determine Consitutionality, which Sheriff gets to be right if Sheriff "A" says something is constitutional and Sheriff "B" says it is unconstitutional?

Again, that just seems like smoke and mirrors to me. Do you deny that US Circuit Courts get to decide whether things are constitutional? Because they disagree with one another all the time. Each court's decisions rule what happens within their circuit (or jurisdiction, if we were instead talking about Sheriffs). Once a higher authority makes a ruling, that ruling becomes controlling.

[tanner]

Actually there are a lot of felonies where officers use discretion, and it has been that way for a long time.

And those officers open themselves up to being charged with "Failing to Take Proper Police Action". The policies and procedures of my PD allow for discretion, but felonies are "Shall Arrest". I have never heard of any other department that does it differently.

Making a felony case go away needs approval from the prosecutor's office.

[Le Français]

And those officers open themselves up to being charged with "Failing to Take Proper Police Action". The policies and procedures of my PD allow for discretion, but felonies are "Shall Arrest". I have never heard of any other department that does it differently.

Making a felony case go away needs approval from the prosecutor's office.


You seem to be making sweeping assumptions about what officers must do based on what is obviously extremely limited information. Maybe that's not the best idea. What's true in your area isn't necessarily true in others.

[ToddG]

And those officers open themselves up to being charged with "Failing to Take Proper Police Action". The policies and procedures of my PD allow for discretion, but felonies are "Shall Arrest". I have never heard of any other department that does it differently.

Making a felony case go away needs approval from the prosecutor's office.

So it's a department policy, not a law? That means the policy could be wiped away with a DEL key by the Chief... in other words, it's Chief's discretion just like the "Sheriff's discretion" discussed above.

[David Armstrong]

Whether I agree with the officer's position or not wasn't the issue. The issue I raised was the difference between "not enforcing an existing law" and "enforcing non-existant law." Going back and reading what I wrote, I feel fairly confident that was clear.
And I disagree with that position. I think that is also clear. I'll be glad to debate "does the example fit the issue" if you'd like, but I think it tends to distract from the issue itself. If an officer is allowed to decide what laws to enforce based on whether or not he thinks it is a law, it should work both directions.

I assume you will likewise concede, therefore, that it's perfectly reasonable for law enforcement officers to question the constitutionality of laws and refuse to enforce those they believe are unconstitutional prior to judicial review... since for them to do otherwise would be a violation of their oath of office.
Nope, just the opposite. Again, the rule is that a law IS considered constitutional when duly passed UNTIL the judiciary says otherwise. The officer is quite welcome to question the constitutionality of the law but to not enforce the law based on his own belief is the violation of the oath, since he is sworn to defend the Constitution, not the Constitution as he feels it should be interpreted. And the law is constitutional until determined otherwise.

Do you deny that US Circuit Courts get to decide whether things are constitutional? Because they disagree with one another all the time. Each court's decisions rule what happens within their circuit (or jurisdiction, if we were instead talking about Sheriffs). Once a higher authority makes a ruling, that ruling becomes controlling.
Yes, the courts get to decide if something is constitutional, that is one of their functions. And under the law a court that has the right of review can overrule that lower court. But until they do the ruling stands. That is not the case with law enforcement, which as part of the executive branch does not have the authority to decide constitutionality.

[David Armstrong]

And those officers open themselves up to being charged with "Failing to Take Proper Police Action". The policies and procedures of my PD allow for discretion, but felonies are "Shall Arrest". I have never heard of any other department that does it differently.

Making a felony case go away needs approval from the prosecutor's office.
As Le F said, "what's true in your area isn't necessarily true in others." I've declined to arrest on a number of felonies. Of course, I can remember when having sex with another man was a felony, when a gram of marijuana was considered a felony, when pornography was a felony, and so on.

[joshs]

David,

The executive decides the constitutionality of laws all the time. For example, since its passage, the War Powers Resolution has been disregarded by almost every president. Each president has claimed that the reason for not following the law was its unconstitutionality. Since this is likely a non-justiciable issue, the executive's constitutional decision is effectively binding.

Where does the Constitution say that the judiciary is given the sole power to interpret the constitutionality of laws? The Constitution itself doesn't allocate this power to any specific branch.

[MDS]

As Le F said, "what's true in your area isn't necessarily true in others." I've declined to arrest on a number of felonies. Of course, I can remember when having sex with another man was a felony, when a gram of marijuana was considered a felony, when pornography was a felony, and so on.

if I'm understanding you, you're saying that le may decline to enforce the law for various reasons, but the constitutionality of the law is not a valid reason to do so?

[tanner]

As Le F said, "what's true in your area isn't necessarily true in others." I've declined to arrest on a number of felonies. Of course, I can remember when having sex with another man was a felony, when a gram of marijuana was considered a felony, when pornography was a felony, and so on.

Mr Armstrong, if you had a supervisor who wanted to, could he have charged you with failing to take proper police action?

I'm not saying it doesn't go on, in fact I know that it does. What I am saying is that the officer is personally taking on the consequences of that decision if his actions come to light and someone wishes to push the issue. It is not officially institutionally accepted to not take action on felonies without prosecutorial approval in any law enforcement agency I have ever dealt with. I'm not saying that is true in every case, but you could knock me over with a feather if you showed that a significant number of law enforcement agencies put it in writing that it was okay to use discretion when dealing with felonies.

ToddG, again, I think you would be hard pressed to find a Chief or Sheriff that would put it in writing for his or her troops that it was okay to use discretion with felony crimes without a prosecuting authority being involved. I'm not claiming to have first hand knowledge of every policy and procedure of every law enforcement agency in the country, it would just run contrary to what I have learned about the profession during my 20+ year career.

[David Armstrong]

David,

The executive decides the constitutionality of laws all the time. For example, since its passage, the War Powers Resolution has been disregarded by almost every president. Each president has claimed that the reason for not following the law was its unconstitutionality. Since this is likely a non-justiciable issue, the executive's constitutional decision is effectively binding.
Which sort of proves my point. For debate purposes only, let us assume that Nixon said it was unconstitutional, Ford said it was constitutional, Carter says yes, Reagan says no,, and so on. So is the law constitutional only every other election?? Congress has said it is, the executive has said it isn't? who is right, and why? What has been decided, other than that the Pres has ignored the resolution?


Where does the Constitution say that the judiciary is given the sole power to interpret the constitutionality of laws? The Constitution itself doesn't allocate this power to any specific branch.
While not specific, Article III is generally recognized as granting the power of judicial review. And I think anyone can interpret the law any way they want. My objection is the idea that the executive has the right to determine constitutionality.

[David Armstrong]

if I'm understanding you, you're saying that le may decline to enforce the law for various reasons, but the constitutionality of the law is not a valid reason to do so?
I'm saying LE may and does decline to enforce the law for a variety of reasons, some good IMO, some bad IMO. Deciding that a law is unconstitutional and should never be enforced based on that decision is bad IMO, and goes beyond the authority of the police. LE is to enforce law, not make law based on how each officer feels. That essentially means there is no law.

[ToddG]

Which sort of proves my point. For debate purposes only, let us assume that Nixon said it was unconstitutional, Ford said it was constitutional, Carter says yes, Reagan says no,, and so on. So is the law constitutional only every other election?? Congress has said it is, the executive has said it isn't? who is right, and why? What has been decided, other than that the Pres has ignored the resolution?

Your example is no different than if the Warren Court said it's unconstitutional, the Burger Court said it was, the Rehquist Court said it wasn't, and now the Roberts Court says it is. You can say stare decisis but many Justices have demonstrated repeatedly that they're willing to throw that principle to the wind when their personal political beliefs are contrary to precedent.


While not specific, Article III is generally recognized as granting the power of judicial review. And I think anyone can interpret the law any way they want. My objection is the idea that the executive has the right to determine constitutionality.

It is generally recognized by the general public and the courts.

You would be hard pressed to find a definitive formal statement from either the Article I or Article II branches of government that conceded the point. They have historically recognized the tradition of courts in that role, but have not committed themselves unequivocally to SCOTUS's final rule. As joshs pointed out, the War Powers Act is a great example.

[David Armstrong]

Mr Armstrong, if you had a supervisor who wanted to, could he have charged you with failing to take proper police action?
I suppose a supervisor could take whatever action he wanted. Whether he would have any success is a different question.


I'm not saying it doesn't go on, in fact I know that it does. What I am saying is that the officer is personally taking on the consequences of that decision if his actions come to light and someone wishes to push the issue. It is not officially institutionally accepted to not take action on felonies without prosecutorial approval in any law enforcement agency I have ever dealt with. I'm not saying that is true in every case, but you could knock me over with a feather if you showed that a significant number of law enforcement agencies put it in writing that it was okay to use discretion when dealing with felonies.
That is a completely different issue. I doubt that you will find many agencies that will put it in writing that it is OK for officers to use discretion when dealing with misdemenors, yet we all know that happens with some regularity.


ToddG, again, I think you would be hard pressed to find a Chief or Sheriff that would put it in writing for his or her troops that it was okay to use discretion with felony crimes without a prosecuting authority being involved. I'm not claiming to have first hand knowledge of every policy and procedure of every law enforcement agency in the country, it would just run contrary to what I have learned about the profession during my 20+ year career.
I'm not Todd, but I'll give you a true example. You catch a couple out parking, in flagrante delicto. She is 16 and he is her 19 year old boyfriend and prom date. They are both good kids from good families, no record or problems with either of them. The boy has just been caught in the process of committing the felony of statutory rape under the law at the time. You going to make an arrest?

[ToddG]

I'm saying LE may and does decline to enforce the law for a variety of reasons, some good IMO, some bad IMO. Deciding that a law is unconstitutional and should never be enforced based on that decision is bad IMO, and goes beyond the authority of the police. LE is to enforce law, not make law based on how each officer feels. That essentially means there is no law.

David -- While you were an officer, if your state passed a law instructing all police officers to arrest any black person on sight and deliver them to a slave camp, would you have complied?

[David Armstrong]

Your example is no different than if the Warren Court said it's unconstitutional, the Burger Court said it was, the Rehquist Court said it wasn't, and now the Roberts Court says it is. You can say stare decisis but many Justices have demonstrated repeatedly that they're willing to throw that principle to the wind when their personal political beliefs are contrary to precedent.
Actually, there is a difference, as the judiciary has that right AND as a result the law is settled until the judiciary rules otherwise.

You would be hard pressed to find a definitive formal statement from either the Article I or Article II branches of government that conceded the point. They have historically recognized the tradition of courts in that role, but have not committed themselves unequivocally to SCOTUS's final rule. As joshs pointed out, the War Powers Act is a great example.
Yes, it is a great example....of my point. We cannot say with any certainty at this point in time if the War Powers Act is constitutional or not. When/if the Court rules on it, there won't be any question.

[David Armstrong]

David -- While you were an officer, if your state passed a law instructing all police officers to arrest any black person on sight and deliver them to a slave camp, would you have complied?
No, but that is a result of a conflict with my personal morals. If you were an officer in 1942 and a law was passed instructing you to arrest all Japanese persons and deliver them to an internment camp, would you have complied?

[Le Français]

Yes, it is a great example....of my point. We cannot say with any certainty at this point in time if the War Powers Act is constitutional or not. When/if the Court rules on it, there won't be any question.

Sure there would still be a question, because at any moment, the Court could reverse the prior decision. So, essentially, if you consider the Court to be the "final arbiter" of what is constitutional, then you never know for sure whether or not a law is constitutional, only that it is considered constitutional (or not) now.

[David Armstrong]

Sure there would still be a question, because at any moment, the Court could reverse the prior decision. So, essentially, if you consider the Court to be the "final arbiter" of what is constitutional, then you never know for sure whether or not a law is constitutional, only that it is considered constitutional (or not) now.
I think that is true of all law, only that they are considered the law "now". They can be changed at any time. Yet we don't seem to have a problem knowing that they are the law or what the law is. Is there any question that murder is against the law? Or is there any question that traveling 60 in a 55 zone is against the law? No question about that, is there?

[MDS]

I'm saying LE may and does decline to enforce the law for a variety of reasons, some good IMO, some bad IMO. Deciding that a law is unconstitutional and should never be enforced based on that decision is bad IMO, and goes beyond the authority of the police. LE is to enforce law, not make law based on how each officer feels. That essentially means there is no law.

I'm having a hard time parsing you. Are you saying that officer discretion is fine, sometimes, depending on the officer's motivation? For example, if a particular arrest seems unfair at the time, like a couple of good kids harmlessly committing a felony, then it's OK with you for the officer to decline enforcement. But if the officer chooses to decline enforcement based on the officer's opinion that a law is unconstitutional, then that's not OK with you.

Is it fair to say that you think cops are generally competent to act on their judgment as to the fairness of a particular arrest at a particular time, but they're not competent to act on their judgment as to the constitutionality of a particular law?

[David Armstrong]

I'm having a hard time parsing you. Are you saying that officer discretion is fine, sometimes, depending on the officer's motivation? For example, if a particular arrest seems unfair at the time, like a couple of good kids harmlessly committing a felony, then it's OK with you for the officer to decline enforcement. But if the officer chooses to decline enforcement based on the officer's opinion that a law is unconstitutional, then that's not OK with you.

Is it fair to say that you think cops are generally competent to act on their judgment as to the fairness of a particular arrest at a particular time, but they're not competent to act on their judgment as to the constitutionality of a particular law?
I'm saying discretion is fine when used correctly. Theoretically it is done on an individual basis and done for the purpose of providing the greatest good. I realize that sometimes it might be done for other reasons and that the good can be debated, but thta is a nice summary. If I decide a law is unconstitutional and therefore can not be enforced that is not discretion, and is beyond my authority as an officer as I am now acting in place of the legislature or the judiciary. In fact, If I think a law is unconstitutional and I observe you, another officer, arresting someone for violating that law don't I have an obligation to intervene and prevent you from making the arrest??:confused:

[Le Français]

In fact, If I think a law is unconstitutional and I observe you, another officer, arresting someone for violating that law don't I have an obligation to intervene and prevent you from making the arrest??:confused:

Of course not. You could use your discretion and decide not to act. :cool:

[David Armstrong]

Of course not. You could use your discretion and decide not to act. :cool:
But if I use my discretion to intervene...??:)

[Le Français]

I think that is true of all law, only that they are considered the law "now". They can be changed at any time. Yet we don't seem to have a problem knowing that they are the law or what the law is. Is there any question that murder is against the law? Or is there any question that traveling 60 in a 55 zone is against the law? No question about that, is there?

Do you then view constitutionality as a purely subjective thing? A law can be constitutional now and unconstitutional tomorrow, with nothing changing but the opinion of a Supreme?

If the USSC ruled in favor of a law allowing police officers to enter homes and search for contraband without PC or even RAS, would you consider that law to be constitutional?

[David Armstrong]

Do you then view constitutionality as a purely subjective thing? A law can be constitutional now and unconstitutional tomorrow, with nothing changing but the opinion of a Supreme?
Yes, that is the way the law is set up.


If the USSC ruled in favor of a law allowing police officers to enter homes and search for contraband without PC or even RAS, would you consider that law to be constitutional?
That was the law for most of our time as a nation, and yes, of course it would be constitutinal under the law. My consideration would be rather irrelevant. There are plenty of laws out there now that I consider to be unconstitutional, but the Constitution doesn't care too much what I think.

[MDS]

I'm saying discretion is fine when used correctly. Theoretically it is done on an individual basis and done for the purpose of providing the greatest good. I realize that sometimes it might be done for other reasons and that the good can be debated, but thta is a nice summary. If I decide a law is unconstitutional and therefore can not be enforced that is not discretion, and is beyond my authority as an officer as I am now acting in place of the legislature or the judiciary.

No confusion here, I'm now clear on what you're saying. The choice isn't between "officer discretion" vs "enforce every letter of every law at all times like a robot" - I think we all agree that officer discretion is important. The distinction you're trying to present is whether a LEO should exercise discretion and decline to enforce a particular law based on his opinion that that law is unconstitutional. That's a fair question, but I have the impression that a lot of folks on here had a hard time understanding your position and are debating things you never meant to say or imply....


In fact, If I think a law is unconstitutional and I observe you, another officer, arresting someone for violating that law don't I have an obligation to intervene and prevent you from making the arrest??:confused:

These questions are all way outside my lane. I'm just trying to clarify the debate in my own head, hoping to learn something. That said, my ignorant opinion is that it all depends, it's the sort of thing you have judge on a case by case basis, and that's why officer discretion is so important. Let me turn the question around on you: if you saw another officer about to arrest a couple of good kids harmlessly making out in a car and thereby committing a felony, would you feel an obligation to intervene?

[Le Français]

There are plenty of laws out there now that I consider to be unconstitutional...

Why do you consider them to be unconstitutional?

[RoyGBiv]

Do you then view constitutionality as a purely subjective thing? A law can be constitutional now and unconstitutional tomorrow, with nothing changing but the opinion of a Supreme?
Old & Busted: http://en.wikipedia.org/wiki/Presser_v._Illinois

New Hotness: http://en.wikipedia.org/wiki/McDonald_v._Chicago

+10 Internets for catching the movie reference

[David Armstrong]

but I have the impression that a lot of folks on here had a hard time understanding your position and are debating things you never meant to say or imply....

That happens fairly often, whihc is why I often chant the mantra of "discuss what I said, not what you think I meant to say" or similar.

The distinction you're trying to present is whether a LEO should exercise discretion and decline to enforce a particular law based on his opinion that that law is unconstitutional.
I think using discretion based on individual acts and needs is fine. I think saying "I won't ever enforce this law because I disagree with the law" is wrong because it is outside the officer's authority.

Let me turn the question around on you: if you saw another officer about to arrest a couple of good kids harmlessly making out in a car and thereby committing a felony, would you feel an obligation to intervene?
I would probably intervene, although I don't know that I would feel any particular obligation to do so.

[Le Français]

Old & Busted: http://en.wikipedia.org/wiki/Presser_v._Illinois

New Hotness: http://en.wikipedia.org/wiki/McDonald_v._Chicago

+10 Internets for catching the movie reference

Yes, I'm aware of this concept. I'm trying to determine if there's a point at which Mr. Armstrong would say, as others have said, "I consider this law to be unconstitutional, despite the Court's opinion to the contrary".

For example, if Congress passed a law that stated "A well-regulated militia not being necessary to the security of a free state, the right of the people to keep and bear arms shall be infringed", and the USSC ruled that it was constitutional, would Mr. Armstrong then consider this law to be constitutional? Or is there a point at which he would for himself determine the constitutionality, in the face of a Court that clearly contradicted the Constitution?

[David Armstrong]

Why do you consider them to be unconstitutional?
Because in my opinion the Court ruled incorrectly, and perhaps the dissent has the better argument. Tennessee v. Garner comes to mind immediately.

[JV_]

The best way to get a bad law repealed is to enforce it strictly.

—Abraham Lincoln

[David Armstrong]

Yes, I'm aware of this concept. I'm trying to determine if there's a point at which Mr. Armstrong would say, as others have said, "I consider this law to be unconstitutional, despite the Court's opinion to the contrary".
I believe I've already made that clear: "There are plenty of laws out there now that I consider to be unconstitutional..."
I'm not arguing there are unconstitutional laws. My point is that thinking it is OK for LE to decide to enforce or not enforce law based on their personal belief is a really bad idea.

[SeriousStudent]

Old & Busted: http://en.wikipedia.org/wiki/Presser_v._Illinois

New Hotness: http://en.wikipedia.org/wiki/McDonald_v._Chicago

+10 Internets for catching the movie reference

Will Smith to Tommy Lee Jones, Men in Black II.

We now return you to your previous debate, already in progress.

[Drang]

Just to confuse things further... :cool:
The city or county council says that the city or county is a "refuge" and Federal immigration laws shall not be enforced.
Is that right? Is it legal? What do you do?

Or, how about this: The city or county is NOT a refuge, Federal immigration laws ARE supposed to be enforced, but you know that busting Senor Gonzales for being an illegal will result in you getting no further cooperation from the Hispanic community. (Or Mr. Abdi and the Somali community, or Mr. Vojnich and the Ukranian community...)
What do you do?

[t1tan]

Will Smith to Tommy Lee Jones, Men in Black II.

We now return you to your previous debate, already in progress.

Ford P.O.S.

:D

[Le Français]

I believe I've already made that clear: "There are plenty of laws out there now that I consider to be unconstitutional..."
I'm not arguing there are unconstitutional laws. My point is that thinking it is OK for LE to decide to enforce or not enforce law based on their personal belief is a really bad idea.

Just to be clear, then: Your position is that, even if you see a law as being clearly unconstitutional, legally speaking the Court has the final word, and nothing could lead you to consider your opinion to legally trump the Court's.

Your position, then, rests on the principle that the Constitution grants the Court ultimate power over determining constitutionality.

If my above summary is correct, I think yours is a respectable position with evidence to back it up.

[David Armstrong]

Just to be clear, then: Your position is that, even if you see a law as being clearly unconstitutional, legally speaking the Court has the final word, and nothing could lead you to consider your opinion to legally trump the Court's.

Your position, then, rests on the principle that the Constitution grants the Court ultimate power over determining constitutionality.

If my above summary is correct, I think yours is a respectable position with evidence to back it up.
That pretty much covers it. Thanks for the accurate summary.