What if a Police Officer is Wrong...

[Resha Caner]

There are probably all sorts of things that are legal today to which the Founders would have objected. But they would have agreed that police should not have the right to impose their opinions as being law. The only authority that a police officer is supposed to have is that which is granted to him/her under law.

You sort of illustrated my point in that you seem to be cherry-picking which FF opinion to highlight in the process of committing the authority fallacy. So, I'll repeat the question: Why does it matter what the FF wanted?

 

[Archivist]

You sort of illustrated my point in that you seem to be cherry-picking which FF opinion to highlight in the process of committing the authority fallacy. So, I'll repeat the question: Why does it matter what the FF wanted?

It matters because the FF did not want a police state. Do you? Remember I am not speaking about valid orders from an officer, I am speaking about those few officers who exceed their authority and violate the law. Do you think that is acceptable behavior on their part.

 

[Resha Caner]

It matters because the FF did not want a police state. Do you?

The form of the state doesn't really matter to me as long as its benevolent and seeks to be God-pleasing.

But either you're avoiding my point or not yet understanding it. Do you think a police state is bad just because the FFs said so? Or do you think it's bad because of what it would do to you?

 

[Archivist]

The form of the state doesn't really matter to me as long as its benevolent and seeks to be God-pleasing.

But either you're avoiding my point or not yet understanding it. Do you think a police state is bad just because the FFs said so? Or do you think it's bad because of what it would do to you?

No, a police state is bad becasue it violates the rights of the individual. The Founding Fathers obviously recognized this. Police should not have the right to do whatever they please, they must operate within the limits of the law.

 

[SoldierOfTheKing]

I'm a former St. Tammany Sheriff deputy, so I bring my own experience and opinion to this subject. A law enforcement officer should be no different than a soldier in the U.S. military. The UCMJ (Code of Military Justice) says a soldier may refuse to carry out an illegal, or immoral order of his superiors. In fact, a soldier who commits an illegal act claiming he was "following" orders is not immune from prosecution. That was pretty much established during the Nuremberg Trial of Nazi war criminals. IMO police who follow illegal orders, are no different than those Nazis.

An illegal order means an order to do something illegal. The order given by the police in the story in the OP was not illegal. It would not have been illegal for those women to put their tops back on.

 

[Archivist]

An illegal order means an order to do something illegal. The order given by the police in the story in the OP was not illegal. It would not have been illegal for those women to put their tops back on.

Incorrect. A police officer violates the law when he/she orders someone to cease doing something that they have every right to do. The order was illegal because the New York courts have held that women have the right to go topless anyplace that men can go topless.

If a police officer walks into a restaurant and says "I don't want you black folks in a restaurant where I'm eating, so I am ordering you to get out or I will place you under arrest," that is an illegal order because he has no right to issue such an order.

 

[Resha Caner]

No, a police state is bad becasue it violates the rights of the individual. The Founding Fathers obviously recognized this. Police should not have the right to do whatever they please, they must operate within the limits of the law.

First, my original point was that the FFs are irrelevant in terms of contemporary issues in NYC. I don't know of any who are still active in government.

Second, technically a police state is a form of government where the police have been nationalized and are controlled by a civil authority. Specifically being a police state doesn't determine whether or not they are abusive, though the term is often used in a pejorative sense (as you have). Regardless, a few officers who were uninformed about local ordinances on nudity in no way constitutes a "police state". That's a gross exaggeration.

Third, the police do have some leeway in advocating for public safety. Having a right does not mean that right exists under all conditions. Had the presence of those women caused an escalation, the police have the authority to act to contain the situation.

Finally, the NYC ordinance is just stupid. So, where does civil disobedience fit into your scheme? Authoritative conscience is another vein of civil disobedience.

 

[Archivist]

First, my original point was that the FFs are irrelevant in terms of contemporary issues in NYC. I don't know of any who are still active in government.

And I never said that the reason people should ignore illegal police orders is beacsue of the Founding Fathers. I offered Franklin's words as an example of how much emphasis has been placed on individual rights going back to our nation's founding.

Second, technically a police state is a form of government where the police have been nationalized and are controlled by a civil authority. Specifically being a police state doesn't determine whether or not they are abusive, though the term is often used in a pejorative sense (as you have). Regardless, a few officers who were uninformed about local ordinances on nudity in no way constitutes a "police state". That's a gross exaggeration.

What local ordinance are you talking about? I have not referenced any local ordinances in this thread.

Third, the police do have some leeway in advocating for public safety. Having a right does not mean that right exists under all conditions. Had the presence of those women caused an escalation, the police have the authority to act to contain the situation.

So if a gay couple are holding hands in public a police officer can order them to stop if he/she thinks it is causing an escalation? If a black couple walks into a bar a police officer can order them to stop if he/she thinks it is causing an escalation? That's the country in which you want to live.

Finally, the NYC ordinance is just stupid. So, where does civil disobedience fit into your scheme? Authoritative conscience is another vein of civil disobedience.

What NYC ordinance?

 

[SoldierOfTheKing]

Incorrect. A police officer violates the law when he/she orders someone to cease doing something that they have every right to do.

That wasn't the question. The question was what an illegal order was, specifically under UCMJ. An order to do something illegal, so that following would itself be illegal.

Under military law, when your superior tells you to do something, you do it without delay. If you think that your superior is wrong, you do it and take it up with him later.

 

[Archivist]

That wasn't the question. The question was what an illegal order was, specifically under UCMJ. An order to do something illegal, so that following would itself be illegal. Under military law, when your superior tells you to do something, you do it without delay. If you think that your superior is wrong, you do it and take it up with him later.

Incorrect. The following is from A Duty to Disobey All Unlawful Orders by Lawrence Mosqueda, Ph.D.:

"The Uniform Code of Military Justice (UCMJ) 809[890].ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ."

The complete article can be found here: http://www.omjp.org/ArtLarryDisobey.html

 

[Resha Caner]

So if a gay couple are holding hands in public a police officer can order them to stop if he/she thinks it is causing an escalation? If a black couple walks into a bar a police officer can order them to stop if he/she thinks it is causing an escalation? That's the country in which you want to live.

No "slippery-slope" arguments, please ... race cards, etc. I stated the type of leadership I would like to have: benevolent and seeking God. No amount of rules is going to achieve that.

And what is the God-pleasing action in your example? Affirming the nudity or discouraging it?

What NYC ordinance?

I meant the NY state law you mentioned. My mistake. But to the question: if the law violates the conscience of the police officer, what actions do you think they are allowed?

 

[RDKirk]

You are to always to follow the policeman's directions at all times. These matters are to be settled at the police station, or in court. It keeps you from being arrested, charged with resisting arrest, man handled, beaten, or shot. Depending on the situation.

Yeah, that's what they told us when we were in the Philippines under Ferdinand Marcos. The law was whatever the Philippine Constabulary standing in front of you said it was.

But that was before such things as body cameras and cell phone cameras.

 

[RDKirk]

An illegal order means an order to do something illegal. The order given by the police in the story in the OP was not illegal. It would not have been illegal for those women to put their tops back on.

Yes, let me second this.

This has gone through the courts and is now what is taught to soldiers:

Under the UCMJ, an "illegal order" is an order to do something inherently illegal in itself. A question of authority, for instance, does not make an order illegal in the military.

Let's say that I as a junior soldier heard the unit commander tell my captain, "Have all the men paint those rocks white." Then the commander walks away and the captain orders me to paint the rocks red. That is not an "illegal order" because my painting the rocks red is not inherently illegal in itself, despite the fact that the captain had been ordered otherwise. The captain may be punished for disobeying orders, but I won't be.

 

[RDKirk]

Incorrect. The following is from A Duty to Disobey All Unlawful Orders by Lawrence Mosqueda, Ph.D.:

"The Uniform Code of Military Justice (UCMJ) 809[890].ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ."

The complete article can be found here: http://www.omjp.org/ArtLarryDisobey.html

You don't understand. That article keeps using the term "lawful order" and you don't understand that "lawful order" doesn't mean what you want it to mean.

"Lawful order" is not a matter of an individual soldier's constitutional interpretation. It is simply: "Is there a specific law explicitly prohibiting me from doing that specific act?"

If no such specific law exists explicitly to prohibit that specific act, the order is not an "illegal order."

 

[stephen583]

What they taught me at the police academy in Baton Rouge, is that a private citizen has as much authority as a commissioned police officer does, except a private citizen can not make a misdemeanor arrest, whereas a commissioned officer can. Anyone can make a citizen's arrest if they see a felony being committed. That's the law.

If I saw a police officer execute a handcuffed man with a gun shot, would I pull out my own gun and arrest him ? Absolutely. The last I heard, murder is a felony. I'd do it in a heartbeat, and I'd use his own handcuffs on him. I'd make darn sure I had it on video though.

 

[stephen583]

Under the UCMJ, an "illegal order" is an order to do something inherently illegal in itself. A question of authority, for instance, does not make an order illegal in the military.

What would you do if your superior officer ordered you to speed up and plow your Humvee through a bunch of children on the street, because slowing down would make the entire convoy vulnerable to ambush ? Would you be disobeying a lawful order if you slowed down ? I'm curious about this, because this really happened to a soldier in Iraq who later related the story to me. To put it lightly, the guy was a mess. All I could do was pray with him.

 

[SoldierOfTheKing]

What would you do if your superior officer ordered you to speed up and plow your Humvee through a bunch of children on the street, because slowing down would make the entire convoy vulnerable to ambush ?

Without derailing the thread, the answer is that a tactical convoy doesn't stop for nothing, for precisely that reason. If civilians get in its way it's on them, or in the case of children, on their parents. Nothing in international law says that military convoys have to stop just because there are civilians on the road. I remember that convoys were ordered not to throw candy to children when passing by, just to prevent this situation from coming up.

 

[stephen583]

Without derailing the thread, the answer is that a tactical convoy doesn't stop for nothing, for precisely that reason. If civilians get in its way it's on them, or in the case of children, on their parents. Nothing in international law says that military convoys have to stop just because there are civilians on the road. I remember that convoys were ordered not to throw candy to children when passing by, just to prevent this situation from coming up.

I'm afraid they'd have to court martial me. I wouldn't be able to live with myself. The soldier I mentioned earlier, said he was ordered to pick the flesh out of the waffle treads of his Humvee when he returned to camp. Honestly, from the pain this guy was in, I'd be surprised if he's still alive today.

 

[RDKirk]

Without derailing the thread, the answer is that a tactical convoy doesn't stop for nothing, for precisely that reason. If civilians get in its way it's on them, or in the case of children, on their parents. Nothing in international law says that military convoys have to stop just because there are civilians on the road. I remember that convoys were ordered not to throw candy to children when passing by, just to prevent this situation from coming up.

I would point out, too, that the Law of Armed Conflict (the military codification of the Geneva Conventions as they apply to soldiers) does not stop military necessity--it does not stop the war. A lot of civilians tend to think it does, both on the pro- and the con- sides.

For instance, if the enemy uses civilians as shields while shooting at US soldiers, the LOAC does not prevent those soldiers from shooting through the civilians to strike back at the enemy. In such a case, the onus of guilt falls upon the enemy for using civilians as shields. If the enemy puts children on the road to slow a convoy down to be targeted by mortar fire, the LOAC does not require the convoy to slow down.

 

[jacks]

because under New York state law women may go topless anyplace that men can go topless

I'm still reeling from this part.