This article is reprinted with permission from Calibre Press
By Jim Glennon
Governors in 42 states have declared edicts restricting constitutionally protected and inalienable rights; an edict that two months ago would have been unimaginable and unquestionably illegal. Even perhaps treasonous.
But each of these governors actually has the authority to “suspend” these rights according to their respective states’ constitution. At least for a while.
And these governors are implementing these restrictions on liberty with the best of intentions; protecting the people of their states from COVID-19.
So, just like that, it has become illegal for people to stand close to each other. It’s criminal to walk in some parks, to skateboard, to play basketball, tennis, have a catch between father and son in a public area and for mothers to gather in playgrounds with their toddlers.
Where the proverbial rubber meets the road is when these restrictions are ignored. For at the inevitable conclusion of these hastily enacted – and as we have discovered – incredibly inconsistent restrictions is the unavoidable: Enforcement.
Citation, arrest, citation, arrest. And most often for things that are not in any statutes or criminal codes.
Take a midnight ride alone for your sanity? Citation.
Paddleboard alone in the Pacific Ocean? Arrest.
And citizens are reacting. They are upset, confused, and challenging the purpose and legality of these new restrictions. They are citing the Constitution and Bill of Rights.
My point here is not to disagree with the social distancing guidelines or question the authority or best of intentions of the governors. I’m pointing out the reality that the police are the ones who find themselves in the unenviable positions of enforcing edicts that restrict basic behaviors and unalienable rights.
And because they are human beings and American citizens and have been trained concerning the law and legal parameters, many find themselves also upset, confused, challenging the purpose and legality of these new restrictions and citing the Constitution and Bill of Rights.
These are undeniably tenuous and confusing times.
Pushback
While agreeing that there is an emergency and that measures must be taken to limit the deadly impact of the pandemic, four Michigan sheriffs have publicly declared that they will not “strictly” enforce the COVID-19 restrictions imposed by Governor Gretchen Whitmer. Why? They believe her restrictions are inconsistent, unduly rigorous and overstep her authority as it pertains to constitutional freedoms.
“Each of us took an oath to uphold and defend the Michigan Constitution, as well as the U.S. Constitution, and to ensure that your God-given rights are not violated. We believe that we are the last line of defense in protecting your civil liberties,” wrote the sheriffs in a press release.
Chiefs of police have told me they don’t necessarily agree with their own governors’ decisions and are having a difficult time figuring out exactly how to deal with rule-breakers. They’re struggling with what they should tell their officers to do.
Attorney General of the United States Bill Barr has stated that governors have the right to impose “temporary and reasonable restrictions” on citizens’ rights in an emergency. But as of a few days ago, he has also said that governors who have over-used their authority and unduly infringe on Constitutional rights could cause his department to pursue legal action against them.
Now the protests have begun in numerous states. Regular people, otherwise law-abiding citizens, are in most cases peacefully protesting and making their concerns and displeasures known to their state governments.
Many pundits, media personalities and even politicians have condemned the protesters using terminology that includes Nazis, killers, morons and even terrorists. Facebook announced it will not allow people to promote protest events – “dangerous misinformation,” its founder says. Some governors are livid and demand compliance.
One government official justifying the arrest of a protester declared that protesting against the government concerning perceived overreach is “non-essential activity.”
This has only filled many protesters with more resolve. More protests are planned. More people will attend.
And who will find themselves in the middle of this mess and get summoned to deal with anxiety-riddled people protesting and ignoring social distancing?
Consider, for a moment, what this is doing to the average cop.
It Falls to the Police
A friend of mine – smart, career cop and commander – contacted me on social media and said, generally, “Police officers do what they are told whether they like it or not. They enforce laws. They have to.”
I respect my friend but there is a problem: It isn’t that simple.
Police officers do more than enforce. A lot more. They are members of a community and contrary to the police haters, they use something called “discretion” all the time. They aren’t legalistic. They think, they consider, they look at the totality about the people they are dealing with at the moment. They don’t cite every violation, arrest every rule-breaker.
They are also accustomed to enforcing well-established laws they understand and support. They trust that the law was enacted, after appropriate legal debate, and for the good of society. They are trained in understanding the “elements of offenses” that constitute what is a law.
But right now?
I had a conversation with an officer from a major city and his frustration was palpable: “I believe what they are telling us to do is completely unconstitutional. Asking people for identification to see if they reside on the block where they’re walking – there’s no way that’s legal and, in the end, when this is over, it’ll be the cops who will be getting sued and being blamed for the heavy handiness. A stereotype we’ve been working hard to overcome.”
This is not a solitary view in the profession.
Another officer recently said to me, “These politicians are telling us that we need to almost abolish the Constitution, which is the opposite of what we’ve been taught and practice. They’re telling us to trust them. They want us to believe that they know what is best.”
“Yeah, but the governors have the constitutional authority to enact temporary restrictions and laws,” I responded.
“Bottom line, I don’t trust them. Look at what they were saying about all of this just two months ago. ‘Trust us, we know the science about this virus. It’s not transmitted human to human. It’s no more contagious than the flu. Go to parades, restaurants, the theatre.’ Now, these same politicians are telling us, ‘Trust us, we know the science about this virus. We know exactly what we are doing. Social distancing is the key. Only essential businesses can remain open.’ But there is no recognizable consistency in what all of that means. Now I have a sergeant who is all over us about enforcing social distancing. Does he think I’m going to arrest a guy playing catch with his son in the park? I have to ask a group of people sitting in their front yards for IDs to find out if they live there? Yeah, I’m not doing any of that.”
Still another told me that after showing up on a shots fired call - where shots were fired - there was a group of people standing around talking about what just happened. Minutes later his sergeant showed up and the first thing he said to the officer was, “Hey, those people aren’t social distancing.”
Both of these officers also spent time talking about how before this crisis they didn’t much trust those sergeants and now they trust them even less.
It Comes Down to Trust
Chief Ed Delmore of Gulf Shores, Alabama, who has one of the most beautiful, and currently closed, beaches in the country, explained his philosophy: “We advise and educate, then we warn, then if necessary, we issue a citation and if worse comes to worst, we will arrest. Imagine trying to keep people off of those beaches. Americans, many who are older, who moved to the area specifically to walk on those beaches, being stopped from doing so? But it has to be done.”
So how many arrests has Chief Delmore seen so far?
None. No arrests solely for refusal to adhere to the current unlegislated rules and laws concerning walking barefoot on the sand.
Why?
Trust!
Trust the citizens have for the police department and trust officers have in their bosses in Gulf Shores. The bosses who are asking officers to enforce counterintuitive laws that they themselves are having trouble understanding and may completely disagree with at that moment.
Trust: It’s tenuous at best at the national macro level, but officers live in the micro. The level where they live, where they have to deal with people, decide and enforce.
Leadership & Trust
The weather is getting better and the parks, swing sets, running paths and beaches are closed. People only have so much patience and it’s running out. They are now outside mixing, mingling, entertaining, partying and ignoring social distancing.
All of them? No, but enough to put a whole bunch of pressure on the average police officer charged with enforcing these edicts in communities where many of them live.
Leadership is the key here. After studying effective leaders for more than 30 years and recognizing that they come in every shape, age, gender and race, I realize that the best of them all have one thing in common: They’re trusted by those in their charge!
Some observations for those in positions of managing police officers: If your people trusted you before the pandemic started, then they’ll stick with you now, even when faced with new rules that are contrary to all that they know. They will trust that you’ll help navigate this mess. In turn, remember that you will have to trust them as they make very tough decisions out on the street. You’ll have to back them up if they use discretion and decide not to enforce because it was the best way to handle a particular situation.
In contrast, if, when this started, you didn’t have the trust of those in your charge, then you’re going to have a terrible time over the next several weeks, if not months. If they don’t trust you and are suspect of the temporary legal parameters and enforcement mandates, it’s going to be rough.
Finally, line-level leaders are going to be forced to make very tough decisions going forward. If the lockdown continues, citizens – people who have been law-abiding all of their lives – will begin to challenge authority. Then what? Mass arrests?
Finding the balance between enforcing and not enforcing is going to be an issue. Strict enforcement of these temporary laws is rife with problems. Forcing officers to suddenly forego discretion and become legalistic during these scary and confusing times may set back police and community relations for years. Internally, it may destroy teams and relationships.
Leaders must lead! Get out on the street. Engage with the community as well as your officers. Take a pulse of what they are feeling. Talk to them. Address their confusion. Buy them lunch. Ask about their families.
Support them when they make the tough, and ultimately correct, decisions.
Leaders must listen! That’s how you develop and maintain trust. Your officers are your greatest resource. Listen to them. The ones who are out there, they know a thing or two. They have the pulse of the community.
And remember, they are more than enforcers. They are ambassadors.
Trust is the key.
About the author
Lt. Jim Glennon (ret.) is the owner and lead instructor for Calibre Press. He is a third-generation LEO, retired from the Lombard, Ill. PD after 29 years of service. Rising to the rank of lieutenant, he commanded both patrol and the Investigations Unit. In 1998, he was selected as the first commander of investigations for the newly formed DuPage County Major Crimes (Homicide) Task Force. He has a BA in Psychology, a Masters in Law Enforcement Justice Administration and is the author of the book “Arresting Communication: Essential Interaction Skills for Law Enforcement.”
