How to Protect Yourself When Disobeying an Unlawful Order
I never thought I would have to write this article, but the last week has shown me that we are in dire times. Our politicians love pitting the police against the public and our officers will be put in awkward positions. This article is not for non Law Enforcement Officers (LEO's). If you are a citizen reading this, our officers need your support. Read away. But the best thing you can do is show support for them so that they can keep their job while maintaining the constitution. For our active cops, this is for you.
https://pod.co/2acops/episode-8-disobeying-unlawful-orders
My City Asked Me to Violate the 1st Amendment
I'm speaking from experience. Several years ago, we had a group come into our city and exercise their free speech. They said awful things and the community would call 911 asking us to make them stop. We didn't. In fact, we educated callers about the First Amendment and then we left. The city was under pressure and passed a city ordinance (a misdemeanor) that said you can only practice free speech in groups of 3 or more if you were in a specific park between 4-6 PM on Wednesdays. Seriously, I'm not kidding.
They brought this up in a staff meeting (supervisors) and told us to start citing this group when they came into the city. I'm glad this happened in an open meeting with minutes being taken. I explained the constitution and that I would not partake in this and that my officers wouldn't either.
Then came the unlawful order to enforce it. Like all good cops, we ignored the order until the call came in. On the radio, I told dispatch to cancel the units and that we would not be responding. A Captain went in our place and the rest can be seen in a subsequent lawsuit.
I never thought I would find myself in a situation like this. I survived the fallout, but you need to be prepared for when it happens to you.
Know the Constitution and Case Law
Many people will claim a constitutional violation when they are arrested. I've heard people cite some crazy things, including some politicians. However, many people don't actually read the constitution. For a cop, read it and know it before you say you aren't going to not enforce a law. In the academy, we get constitutional law classes. However, it is a summation of what we need to know. It's better to read the whole thing.
You should also be a master of case law. Freedom of speech is a cornerstone of the constitution. But, there are limitations on the 1st amendment that were decided by the United States Supreme Court (USSC). It's important to know those limitations. It's not just the 1st amendment. The 4th amendment also has limitations as does the 2nd. Whether you like it or not, these case decisions were decided by the USSC, which is a part of the balance of powers. We need to know this front and back so we can refuse unlawful orders.
In my own example, the city attorney tried to say that the restriction on the 1A was lawful. I asked him for specific case law and he stated an obscure case decision out of Washington dealing with private property. Obviously this didn't apply and we quickly countered his assertion.
Simply put, know the law and be prepared to educate others whether it is your bosses or the public.
Walking Away Is a Last Case Scenario
Many citizens and some cops say, "Just walk away and quit when you are given an unlawful order." This is misguided to say the least. If every cop quit every time they were asked to do something by a superior or a politician that was against the constitution or against case law, we would have no cops. Besides, who is going to take our place? A person that is going to violate the constitution? This rhetoric doesn't help.
In my case, had I simply quit, my family would be in trouble financially and a moron that would have violated the 1A would have taken my place. This is unacceptable.
Sure, if you work in an agency that is routinely violating the constitution, you may have to before you wind up in prison too. But this is the last resort.
"Pretend Policing" to Avoid Unlawful Orders
Some officers pretend to do police work when given unlawful orders. An example would be a law being passed that says you must seize all "assault weapons." We had an assault weapons law in California where I worked. I have run across regular citizens with assault weapons and I just pretended like they weren't there. No big deal. I can always say that I didn't see them and they can't prove that I did. This is pretend policing.
My only caveat here is that you need to be careful that you can't get in trouble for lying. If you get in trouble for lying, you'll end up on a brady list and lose your job. Be smart when disobeying unlawful orders.
Document, Document, Document
My agency did come after me at one point. I was saved because I documented everything my Chief and administration did when they said stupid things. They kept me busy with the amount of nonsense that came out of their mouths.
When my agency wanted me to cite people for violating the first amendment, I made sure that I documented who was in that meeting and who said what. I also kept a copy of the meeting minutes.
Other times, my chief would make comments that violated our policy on discrimination in the workplace. One time, they even forged an evaluation saying I wrote it when in fact they altered what I wrote to be the opposite of what I had documented. I kept all copies, documented who was present for what conversations and kept a log of my conversations. It is tedious, but there is nothing more glorious than breaking this information out when you are standing in front of the man.
I literally was written up for making too many arrests. Seriously. A cop getting written up for doing his job. The supervisor said I should have been writing more tickets (I had real crime to deal with). I framed that write up and looked at it with pride. This same person went on to encourage people to violate the First Amendment in the case I mentioned above.
FOP LDF is a Must
Being a member of the Fraternal Order of Police (FOP) and being on their Legal Defense Fund (LDF) plan is a must. When the man comes after you for standing by the constitution, they will try and fire you or suspend you. Having LDF is going to help you out. I definitely took more from LDF than I put in. One bad chief hired an outside consultant to come after me at the tune of tens of thousands of dollars. My defense was costly, but I won.
Supervisors are the First Line of Defense
I was a supervisor. I know what kind of pressure our sergeants and lieutenants are under. I get it. But, you chose to get that job and it is your duty to protect your cops. When the unconstitutional orders come down, protect them and start the fight now. Don't be a lemming and just repeat an unlawful order.
For Our Citizens
For the citizens that have read this, don't be an ass by saying things like, "Just remember your oath." You think they have forgotten it? These guys are out every day protecting you and hearing that is the worst kind of statement to make. Say something like, "Thanks for having my back, I've got yours." That goes farther than anyone can fathom. Don't watch the news as they show some rogue guy that doesn't represent the other 900,000 cops in the United States. That is like me going to your work, picking out the biggest idiot you have and say he represents your work. Help these guys out. They are under tremendous stress.
Final Thoughts
Keep your head up. The average American loves you and knows how hard you are working. Know that liberal leaders are going to beat the crap out of you for the next four years. As we teeter on a war, be sure to keep up on your case law and communicate with your bosses about supporting the constitution. Communication, friendships and support will get us through this.