Whatever the legislative proposal or policy issue may be, a few primary arguments are used time and time again. Like the “think of the children!” appeal, the suggestion that law enforcement officials should be given whatever tools they need to do their job is one which is frequently used. We find the degree to which it is cited to be very troubling, for it almost always comes at the expense of individual liberty.
Taken at face value, the proposal to give law enforcement the tools they feel they need to ensure public safety comes with no qualifiers; if police officers think that X will enable them to better accomplish their job, then many will emphatically agree that taxpayers should fund and provide X. Lacking any qualifiers, no recognition is made of the competing interests involved. No discussion is had as to whether X is unjust, immoral, prone to abuse, or violates liberty.
Taken to the extreme (which of course never happens with regards to law enforcement), tools and procedures that are established to supposedly pursue public safety inevitably become abused by increasing the frequency of their use, decreasing the standard with which they are applied, and broadening the types of individuals who may be subject to them. Benjamin Franklin’s recognition of this problematic trend led him to note that, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
Indeed, essential liberties are routinely “given up” through the political process and as law enforcement agencies aim to use new tools, new tactics, and acquire new powers. Utah has been witness to a number of examples proving the wisdom of Franklin’s remarks. A few such examples will help prove the point.
A recent bill, sponsored by Senator Mark Madsen, would have allowed a property owner to refuse to comply with an order to evacuate his/her property during a declared emergency. It failed in committee due to concerns amongst the Senators that it would have limited the ability of law enforcement officials to “do their job.” Senator Jones said that it would “complicate” the job of first responders to have to permit people to remain with their property if they so chose. Senator Urquhart argued that because first responders are trained to go in and help, letting people disobey their orders would cause them problems. Senator Weiler recognized that the sponsor was trying to “protect individual liberties,” saying “but I’m concerned at what cost” since in some cases a person with diminished mental capacity may refuse to be evacuated even though it’s in their best interest.
This was a simple bill. Individuals should not be made criminals for refusing an order by the agents they employ, through taxes and delegated powers, unless they are suspected of having violated the law. As individuals should not be compelled to abandon their property, then the law should have been changed to reflect that basic property right. Unfortunately, the five Senators on the committee (not including the sponsor) all disagreed, voting against the bill, and in favor of letting law enforcement officials retain their current power.
Three years ago, Representative Brad Daw sponsored a bill which gave law enforcement officials more tools to go after alleged criminals. It expanded the use of administrative subpoenas, a writ issued by a government agency to compel a person or organization to furnish information for evidence. These subpoenas, being “administrative,” are not reviewed or signed by a judge as with a warrant. In 2010 and 2011, the Attorney General’s office used this tool 570 times. Attorneys for Weber County used them 210 times, attorneys for Washington County 26 times, and POST (the state’s police academy) used them 114 times. No other county or city used this tool during those years. In each of these instances, agents of the government’s executive branch have declared themselves legally authorized to access information without needing oversight from an (in theory) impartial judicial review.
This violation of liberty is troubling and blurs a basic separation of powers. When Governor Herbert signed the bill into law, his spokeswoman said that he understood the “concerns associated” with their use, but was “not aware of specific instances of misuse of the power… and has no reason to believe misuse will occur with this narrow extension of that power.” This is entirely beside the point—the fact that government agents can demand information from a person at all, without judicial approval, is a “misuse” of the police power. Because HB150 only required a numerical report, we are unable as of yet to determine if even worse “misuse” has occurred by using the administrative subpoena.
In his recent veto of HB76, which would have allowed adults in Utah to conceal carry an unloaded weapon without a permit, Governor Herbert echoed the arguments many of the bill’s opponents used during the session. “I received dozens of letters from law enforcement agencies opposing the bill,” Herbert wrote. “From Logan to St. George, and from Price to Clearfield City, Chiefs of Police have asked for a veto of HB76S1. They see it,” he continued, “as ‘a dramatic change in Utah’s concealed carry permitting process that has been fair for the public, public safety, and concealed carry permit holders.’ I agree with that assessment.” The Governor similarly stated in an interview that he vetoed the bill because law enforcement officials “believe it helps them protect us from the bad guys.”
As we have previously explained, the right to keep and bear arms is fundamental and predates government. The current permit process, while not necessarily restrictive of that right in most cases, nevertheless violates it by requiring a permission slip prior to exercising it. Police officers throughout the state may like the system as it stands, and many have objected to its alteration as HB76 would have done, but it does not change the fact that liberty demands the system be done away with. The Governor’s deferral to the opinions of law enforcement officers in this case shows a predilection for supporting the law enforcement community’s request for maintaining or expanding the powers it feels it needs.
Last year, the legislature considered a bill which would have eliminated DUI checkpoints in the state. Police officers strongly objected to the bill, as did legislators with an affiliation to the law enforcement community. Speaking of his friends in law enforcement, Rep. Richard Greenwood, a former Utah Highway Patrol officer, said that “I don’t think we ought to be micromanaging their job. They are the experts out there.” Rep. Lee Perry, a current trooper with that same agency, said “I don’t know why you would want to take that tool away when we’re accomplishing great things in law enforcement.”
Detaining mass quantities of innocent people in the pursuit of a limited few who might be drinking and driving is a gross violation of liberty and abuse of authority, no matter what some judges may have opined in giving such a tool legal sanction. The “papers, please” approach to searching for bad guys is a hallmark of a society wherein people are presumed guilty until proven innocent, and not the other way around.
Empowering law enforcement officials with whatever tools they feel they need to identify and apprehend bad actors is problematic on its face and suggests a lack of understanding of the purpose for which legitimate government exists. If police officers are there to help protect people’s lives and property, then they cannot do so at the expense of their liberty. Any tools provided to help them do their job must at a minimum be focused only to the specific people suspected of having committed a crime; targeting innocent citizens or presuming that people in general may be guilty of violating the law belongs to the tyrannical regimes of world history, and not the republics established within this country.
Contrary to the opinion of some in the legislature, the people and their representatives should absolutely be the ones who determine which tools and powers are provided to law enforcement officials. Such agents of the government should not be a law unto themselves, nor should their every request for maintaining or expanding their power be given such deferential treatment by those in office who should primarily be focused on protecting individual liberty.