There Is No “Officer Safety” Exception To The Constitution.

In an extraordinary article in Law and Order, a police management magazine, a point that has been made here innumerable times has finally been made in black and white: There is no “officer safety” exception to the Constitution.

Via ExCop-LawStudent:

The article, No “Officer Safety” Exception to the Constitution, Charles Huth, Jack Colwell, and Randy Means, Law and Order, Jan. 2015, is very clear that officer safety has gone too far.  They state:

A number of law enforcement agencies are currently under fire for their patterns and practices of “stop and frisk.” This is only the present manifestation of what has been for decades a national epidemic of illegal police practices rationalized by the mantra “officer safety.” Frisks are not supposed to be the rule in Terry-type stops; the rule would be no frisk. The same is true for handcuffing subjects and placing them in the back of police cars. (emphasis added)

ECLS notes that this doesn’t come from some criminal-loving cop hater, but from some of the most respected voices in the law enforcement community.

Huth is the past President of the National Law Enforcement Training Center* and a Captain with the Kansas City, Missouri Police Department.  After the Eric Garner death, Huth was on CBS News showing the difference between an arm-bar chokehold and the much safer lateral vascular neck restraint (LVNR).  Colwell retired from the KCMOPD after 29 years and is the co-author of Unleashing the Power of Unconditional Respect with Huth, a program for increasing officer connection with the community and decreasing confrontations.  Finally, Means is a partner at The Thomas & Means Law Firm, and has a long history as a police legal advisor, and risk management at the IACP.

As the authors note, law enforcement involves a heaping dose of “law.”  While police have an unfortunate tendency to both be simultaneously ignorant of law, while claiming that their every whim is the law and citizens either comply or suffer the consequences, there is actual law that has been almost entirely ignored by police.

What the authors fail to note, of course, is that judges have been overwhelmingly complicit in the “officer safety”-trumps-law-no-matter-what meme.  Yet, there is no constitutional authority for such a view.

So, where does one find the officer safety exception to the Constitution? Generally speaking, it doesn’t exist. Generally, the rights of the people trump the rights of an officer to be guaranteed a safe outcome in dangerous situations.” (emphasis added)

This. The pervasive attitude of shoot first, just in case, has cost too many innocent lives.  Yes, there are dangers to being a cop.  You knew that going in, and surely pound that home every chance you get in your demand for respect.  The respect you refuse to show others.

If the choice is between feeling safer by violating someone’s Constitutional rights or taking calculated risks while honoring our oath, the pledge we made when our badges found their home on our chests  is supposed to win every time.

The fact that this article comes from respected voices in the law enforcement community, and appears in a police magazine, is huge.  Maybe, just maybe, enough blood has been needlessly spilled that even the cops are beginning to realize that the First Rule of Policing is unsustainable and fundamentally wrong.

Sure, cops should make it home for dinner alive.  But so should everyone else.  The public is not fodder for police fear, with a bullet or beating just to be sure that it’s them, not the cop, who might be harmed.

But merely saying the obvious isn’t sufficient, not by a long shot.  As ECLS notes,

I can tell you that this is not the way that officers are being trained.  I can tell you that this is not the way that most officers on the street view it.

Perhaps this will have an impact in both the training, and more importantly, the attitude of cops on the street, that the lives of non-cops are not expendable so that their lives are safe.  The Constitution provides no right to the First Rule of Policing, and there is no justification for cops, who make the choice of taking a job that has the potential for danger, to shoot first just because they’re perpetually scared.

But it’s not just the cops who need to learn the law. More important is that judges, who have no excuse whatsoever for not understanding that there is no constitutional right to officer safety, to end using it as an excuse for cops to kill, to violate the Fourth Amendment, and to wave off police abuse as if it can’t be helped.  Or worse yet, that the safety of cops is more important than the safety of anyone else.

It’s time for judges to stop enabling this fiction that costs innocent people their lives.  Cops do not get a free pass on harming people and violating their rights just by uttering the officer safety mantra.  Judges need to remember that the Constitution exists to protect us from the government.  The “officer safety” exception to the Constitution doesn’t exist, and it’s time for judges to do their job and protect everyone, not just the cops.


19 thoughts on “There Is No “Officer Safety” Exception To The Constitution.

  1. John Burgess

    The article says, “We are not soldiers fighting a war….” I wonder if this is a result — an unintended consequence — of veteran hiring preferences for LEOs? I do understand the why and wherefore for veteran preferences and generally have no issue with it.

    But the law enforcement community might be better off without it. The military are not the police and the military mindset should not be confused with a law-enforcement mindset. The military has good reason (usually) for an us-them dichotomy. That should not be the way police view their universe. Yet preferential hiring of former military seems to encourage the merging of the two, usually to the detriment of citizen rights.

    I don’t pretend that veteran preferences are going to disappear in hiring LEOs. But perhaps more attention might be paid to the re-ordering of priorities in the minds of LEOs.

    1. SHG Post author

      I doubt it has anything whatsoever to do with veteran preferences. Indeed, most observers note that combat vets make far less “macho” cops, as they’ve seen real fighting and don’t need to stake their manliness on beating up their own citizens. Rather, that’s a reference to the over-militarization of police, the “us v. them” attitude that has become pervasive in law enforcement where they see themselves as soldiers in a war on crime, and treat the public as if they’re all enemies.

      1. SHG Post author

        Nor would the mayor be able to show the PBA how much he loves them and that they should love not hate him in return.

      2. Troutwaxer

        Veterans are also trained to follow “Rules of Engagement,” which are military orders which instruct them on when and how they may fire their weapons. I don’t know how much real-world relevance this might have to policing, but I think it’s worth noting.

        1. SHG Post author

          It is worth noting. Most vets talk about the restraint they showed overseas, and more importantly, how treating the locals with respect made their lives safer and more pleasant. Rules of engagement were taken seriously by all involved in the military, and the point has been driven home my many veterans here that they would never get away with behaving the way cops treat their fellow citizens here.

          1. Not Jim Ardis

            “Rules of engagement were taken seriously by all involved in the military”

            Because if they don’t, and if they violate the ROE, then they end up being brought up on charges and punished…

            Which the cynical might notice is fairly different from how the police are treated…

    2. ExCop-LawStudent

      John, the soldier mindset doesn’t come from the veterans.

      It comes from the “War on Drugs” and “War on Crime” labels put out there by politicians, and adopted by police officers who have no idea what being a soldier really is. Most of the vets I knew thought it was BS.

  2. DDJ

    “The fact that this article comes from respected voices in the law enforcement community, and appears in a police magazine, is huge.” Yes, but not in the way you mean.

    This article is damage control; pure and simple.

    Their collective tits are fixing to be in the national wringer and they’d prefer the “policing” themselves to having the Legislative Branch trim their wick.

    1. ExCop-LawStudent

      I doubt that it is damage control. They have been pushing for officers to be less confrontational for years. In 2011, they put out a video on training officers to be less confrontational, and it is linked at the second block quote above, at the word “program.”

      I would be the first (and have been, many times) to criticize the police for applying a bandaid to a gaping wound that needs stitches and surgery. This isn’t the case here.

      Had you read the links and done a bit of research, you would have seen that, instead of automatically assuming that the police have crappy motives. That attitude is as much a part of the problem as the one held by most of the cops. It just propagates the problem.

      1. SHG Post author

        In fairness, I suspect there are some big attitudinal gaps here that warrant individualized attention. There are enlightened cops in supervisory roles, and the street cops who see the problems, and then there are the ones from top to bottom who see no problem at all.

        As you know better than anyone, cops are no more one-dimensional in attitude than any other occupation, but the culture tends to promote conformity to the lower, if not the lowest, common denominator.

  3. Alice Harris

    Right on, professor. It is the rare judge who will recognize the lack of such an exception and make the correct ruling.

  4. KC Law

    I know you don’t permit links and this comment is subject to deletion, but are you referencing this Chip Huth?

    Or the one who had this to say after a car chase through an apartment complex parking lot?

    I once cross-examined one of his fellow TAC officers about their unit’s practice of doing warrantless sweeps of residences for officer safety. Here’s the end of the exchange.

    Q Okay. So as a matter of course you go in the house, you secure the people, and you sweep to make sure that your officers stay safe; is that correct?
    A True.

    Chip must have had an awakening.

    1. SHG Post author

      I took ECLS’s perspective on Huth, and other perspectives (including the links) are welcome. Maybe he turned over a new leaf?

    2. ExCop-LawStudent

      Same guy, but apparently he’s been promoted twice in the last 8 years, since the show aired. According to the information I have, he’s a captain now and a watch commander.

      I don’t have an issue with what Huth said after the car chase either. They had information that an individual wanted for murder was in the vehicle, they tried to stop him prior to the chase, and he fled. Any police department in the nation would have chased that car, and the statements made afterward are understandable. They weren’t inappropriate either. A vehicle pursuit of a violent felon gives the officer a major adrenaline dump as a matter of simple physiology. It’s also what cops are supposed to do, to catch violent felons.

      Also, a protective sweep of a residence is allowed under the constitution, as I’m sure you’re aware. I’ve done it or had it done countless times, depending on the exact facts. It’s not unusual nor is it illegal or unethical.

      I don’t see anything here that would change the point made in the article. Nothing in the links showed anything that was unconstitutional or unlawful, nor was excessive force used or alleged.

      1. SHG Post author

        Tut, tut, tut. Let’s not hijack this wonderful post and turn it into a heated discussion of Huth’s SWAT history or the proprieties of protective sweeps.

        Focus. Stay on topic. Don’t walk toward the bright light.

    1. SHG Post author

      My no vid rule notwithstanding, that was one hell of a video and it stays in. I applaud what you’re saying and what you’re doing, as I have long believed that the change of culture has to come from within. Based on what you’ve written, you guys are the models of what cops should aspire to be. Thanks.

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