I posted about the DC Checkpoint Plan a couple of days ago, and went back to check the comments left here.  Spartan would be an overstatement.  I am constrained to assume that readers of Simple Justice don’t really care much about the issue.  Fortunately, the NAACP and ACLU think it’s worth keeping an eye on.

But over at the Volokh Conspiracy, readers held stronger feelings on the subject and were less recalcitrant to express them.  One theme emerged that was quite troubling, not just because of its application to this specific law enforcement initiative, but as a general reaction to authority.

If a cop tells you to do something, just do it.

For most of us, this is assuredly the path of least resistance.  Why fight it when it doesn’t count?  As one commenter put it, unless you have a corpse in the trunk, when a cop asks to look in your trunk, show him. 

Ironic that a bunch of folks who like to fashion themselves as libertarians find the path of least resistance the wise choice.  It is, without a doubt, the easier choice.  Lets face it, let the cop have his way and we save ourselves a whole bunch of problems.  For the most part, compliance with a police officer’s direction is no skin off our nose.  We’ve got nothing to hide.  We’ve done nothing wrong.  We didn’t wake up this morning muttering to ourselves, “hey, let’s pick a fight with a cop over nothing.” 

There is, of course, one small problem with this attitude.  It has bred a society of police appeasement, which in turn has empowered police to use their authority at will, and similarly removed the basic constraints over the exercise of police power.  In other words, cops believe they can tell citizens to jump and the only proper response is “how high?”

It comes as no surprise that some people hold this attitude.  In the constant tension between law and order, many come down on the order side of the equation, believing that its necessary to give up some freedom to enjoy safety.

What is a surprise, however, is how pervasive this attitude has become, and how militant its adherents are in promoting order over law.  There is little tolerance of those who are not inclined to give up their right to be left alone, their right to assert their freedom even in the face of a police officer ordering them to do otherwise.  To these folks, the answer is simple and beyond dispute.  Just do what the cop tells you.

But this has bred widespread misunderstanding of the relative roles of police and citizens.  A non-lawyer spelled out his understanding quite well:

Maybe I’m just unusual in this regard but I was raised with the notion that one ALWAYS does what an officer tells one to do unless the officer tells one to jump under a bus or something. Maybe I’m just a sheep — I’m obviously not a lawyer since this issue would never have occurred to me to inquire into.

For me, it’s simple. He’s the police. He’s got the badge. He’s one of the good guys, presumptively anyway, until he proves that he’s not. If an officer asks me to move along or for information, I assume there’s good reason for it aside from a general desire on the officer’s part to be a bully. I think officers have a tough and dangerous job that shouldn’t require them to justify their every action to any and every citizen with which they come into contact.

Furthermore, s/he has authority to arrest people. As a general rule, I do not want to be arrested merely for refusing an officer’s request/order or for demanding that the officer justify the request/order…unless, and I stress this, I feel that I am exercising some important right: peacefully protesting at an abortion clinic, standing the required distance from the clinic, not blocking traffic or pedestrians, not hassling clients or personnel entering or exiting the clinic. Under some such situations, I tell the officer that I have the first amendment right to be there doing what I am doing and the only way he/she will get me to move is by arresting me and bodily carrying me away. But if it’s just a matter of me hanging out somewhere that is not my personal property, if an officer tells me to move along, I move. I might say, “Yes, of course officer. May I know why?” or “Sure! What’s going on?” but I’m just not that into civil disobedience for the sake of making the point that unless the officer of the law goes through chapter and verse of the relevant penal code, I have a right to do pretty much whatever I please.

So am I undermining the Constitution or something by this “Yes officer” attitude?

Undermining the Constitution might be a bit strong.  You are not, but you are enabling the officer to do so.  Walking down a public street in any city in America is not an act of civil disobedience, and the idea that it becomes so because an officer directs you to “move on” demonstrates an underestimation of your rights. 

There are a handful of offenses that involve a person’s disobedience to authority.  Failure to obey a lawful order of the police is a crime in many jurisdictions.  So is resisting arrest.  Protesting innocence didn’t do much for Martha Stewart, but that was a bit different.  The question remains, what do courts perceive as lawful behavior on the part of the police?  The answer, unfortunately, is that judges typically defer to the cops.

In the hierarchy of players in the legal game of life, cops are definitely a few rungs higher than mere citizens.  Whether it’s because they have a difficult job to do, or because citizens are presumed to deserve it should they find themselves in the dock, the word of a police officer carries are more weight than yours. 

Is this the goal James Madison hoped to achieve when he persuaded others to sign on to the Constitution?  Our forefather had a very healthy fear of authority, and would have found deference to arbitrary orders anathema.  They understood that policing was a critical component to survival of a society, but the line stopped at the point where a specific harm was involved and police were just flexing their muscles.  The latter was not acceptable, and they fought to hard to throw off the yoke of one tyrant to happily wear the yoke of another.

We should, in a perfect society, obey the directions of police, under the assumption that they would not issue directions but for a legitimate, legally cognizable reason, whether under police power or public safety.  We should be able to trust our police to know where the line of their authority is drawn, and to be as strict in enforcing the limits of their own conduct as they are in limiting ours.

The DC Checkpoint Scheme is an example of why we don’t live in this perfect society.  When law enforcement, whether as a matter of broad public policy or a matter of a lone cop’s exertion of power beyond his authority, fails to adhere to its limits, we facilitate lawlessness by acquiescing in obedience.  In the long run, the path of least resistance will turn into the road to perdition.