Mises Wire

Why Police Cannot (and Will Not) Protect Our Rights

It would seem that most people on the planet have seen the viral video of Alex Wubbels, the nurse at the University of Utah Medical Center, being arrested by police officer Jeff Payne because she insisted on following state and federal law, along with hospital protocol, regarding Payne’s demand that he be permitted to draw blood from a car accident victim. Not surprisingly, most viewers have reacted with outrage and after the incident became public, the Salt Lake City Police Department placed both Payne and his lieutenant, James Tracy (who ordered the arrest), on paid leave.

Pretty much everyone agrees on this one point: Payne and his boss at the very least violated department policy and probably broke the law. Whether or not they are punished is another matter.

In releasing the video during a press conference last week, Wubbels said that while she was grateful for the overwhelming support she received and for the apologies given her by the Salt Lake police chief and the city’s mayor, she called for “more training” for police officers to keep them from violating the law. Would be that Payne and his lieutenant engaged in this outrageous behavior simply because they had lacked proper “training.”

We have been down this road many times. The idea that government is supposed to protect our “inalienable rights” (in the words of Thomas Jefferson’s eloquent Declaration of Independence) is woven into our mystical political fabric, but instead of protection, governments hand out abuse, lots of abuse. While the vilification that Payne and his police allies presently are receiving is well-deserved, the real problem is not people like Payne, nor will firing him – as much as his superiors need to do it – will solve any fundamental problems with government agents abusing everyone else.

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No, the real problem is that we are like Charlie Brown every October, who believes that this time Lucy van Pelt will not jerk the football away just before the hapless Charlie is about to kick it. We train police officers to obey the law, write “protect and serve” on the sides of squad cars, and then watch helplessly as police rampage through our communities, shooting innocent and unarmed people, stealing their property via “asset forfeiture,” and killing their pets as an added bonus.

Let us look at the situation in Salt Lake City. Despite the fact that the police knew from when Payne arrested and brutalized Wubbels that he had acted illegally (the video of the entire incident makes that point clearly), the authorities did absolutely nothing until the video was broadcasted around the world. Yes, the police chief and mayor were “outraged” (their words) by what happened, yet their people had known about what happened and were quite satisfied with their non-response – until having their hand called. Suddenly the local district attorney wanted a “criminal investigation,” yet prosecutors had shown no interest until the general public saw firsthand their “public servants” at work.

No, we are being given the ubiquitous dog-and-pony show in which officials are shocked, SHOCKED! that one of their own would do such things, but they promise to “fix” the problem. Of course, all of us are aware at some level that what we are seeing is little more than a rehearsal for the next round of police abuse in which their supposed public overseers once again will express “shock” over what they have seen and are apologizing profusely to the next victims. And so on.

While all of us would like to “fix” whatever problem exists with police abuse, in reality it is just as impossible to rectify the situation as it is for Lucy to keep the football on the ground. It won’t happen because it cannot happen. Although we want government that actually protects our “inalienable rights,” we always will get the Jeff Paynes instead of the Thomas Jeffersons.

I am not making a cynical statement, nor is this a clarion call for people to “take back” their governments. The hard reality is that governments will not and cannot protect our rights, and it has little or nothing to do with education or one’s personal commitment to life, liberty, and the pursuit of happiness for others.

For all of the talk about “the policeman is your friend,” or that police allegedly “serve the public,” police forces are little more than the muscle arm of the state. They act as revenue collectors (although most of the revenue they collect through traffic tickets goes directly to police coffers) but their most important duty is to enforce the numerous rules that governments impose on citizens.

Far from protecting the “inalienable rights” of citizens, the police generally violate those rights – in the name of a utilitarian view of “fighting crime” and (of course) “keeping us safe.” Try reciting something from the Bill of Rights to a cop that is trying to force you to do something against your will – even if you are not suspected of having broken the law – and you will find quickly that the officer is visibly angered by your assertion of your rights.

This is not something that “more training” will cure. Most problems regarding police brutality are not the result of a lack of “training,” but rather are the result of the police officer representing a government body that is demanding submission.

Far from the Jeffersonian ideal of being the protector of our “inalienable rights,” governments today are progressive rule-making bodies. Rules tied to protecting our rights are prima facie evident, such as laws against theft, assault, and murder. We don’t need governments to tell us that these actions are wrong; indeed, there are laws against them precisely because everyone recognizes their wrongness and people do not object when governments declare murder to be illegal.

Very little of what governments do today have anything to do with protecting citizens. Instead, governments impose numerous burdens upon others by telling them what they can eat, what they can say, what plants are permissible to ingest and which are not, and how we are to interact with others when we engage in economic exchange and production. In earlier days, before the Progressive Era brought about a sea change in how Americans view government and how governments interact with citizens, criminal law revolved around the legal doctrine of malum in se, which means that an illegal act, such as murder, is wrong in itself. Today, the vast number of “crimes” that land people in prison are based upon the legal doctrine of malum prohibitum, which says an act such as smoking marijuana is wrong only because a governing body says it is wrong.

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The distinction is vital because “crimes” committed under malum prohibitum often are acts for which all parties involved gave consent and no one was harmed. People charged with such crimes are lawbreakers only because the authorities say so.

As famed attorney Harvey Silverglate wrote in his book, Three Felonies a Day, there are thousands of laws, both federal and state, in which anyone that transgresses them can end up in jail. Almost all police officers will enthusiastically enforce these laws, even if some of them believe the laws to be unjust. (The typical response to the injustice claim is: “I’m just doing my job.”)

Indeed, after Payne violently arrested Wubbels and shoved her into a hot police car (making her wait in the sweltering heat), Tracy, who ordered the arrest told Wubbels that “Your policies are getting in the way of my law.” In other words, the cop believes that whatever he says is the law, no matter what courts and legislatures might say.

People with such mindsets – and they are legion in police departments – have no intention of protecting the rights of anyone but themselves. The so-called Policemen’s Bill of Rights, which is little more than a get-out-of-jail-free card for police who break the law, is an affront to any kind of rule of law, because it provides legal protections to government employees that are not available to ordinary citizens.

It is safe to say that most police today – and most politicians, frankly – see the rights of due process enshrined in the Bill of Rights not as rights that police need to protect, but rather as barriers to “good police work.” Officer Payne wanted a blood sample, and he was going to get a blood sample no matter what the law or medical procedures might be because that was his job, and if the rights of citizens clash with what the police see as “doing their jobs,” they will ignore the rights of individuals every time.

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