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A.O. Kime Articles:

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Rule of Law or Shotgun Rule?

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Arbitrary arrests and the precariousness of the rule of law in America

(5th edition - Dec 2010) by A.O. Kime
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Definition: the rule of law “implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.”

Engineered laws and violation triggers

While the ‘rule of law’ sounds like a great concept, in theory enabling everyone to know exactly where they legally stand at all times, in theory freeing one from worry about unwarranted and arbitrary prosecution, this idealistic concept is now facing a profusion of ‘engineered laws’ which prevents it from becoming a reality.

Although an ad hoc term, ‘engineered laws’ is intended to describe those laws which have a lot of creative legalese designed to cover a gamut of situations... as if using a shotgun approach. While once laws were simple instruments, clear-cut and precise as to what would constitute a violation, singularly, therefore narrow in scope, that isn’t the case anymore. Gone are the days of the Law of the Twelve Tables (external website), the legal code of ancient Rome codified under Justinian... simple, yet clear.

Gone too is the golden age of the 18th century when men believed a single sentence could describe a law completely as demonstrated in the Bill of Rights. Today's shotgun approach to law enforcement, with laws designed to hit you with something, anything, threatens to make the rule of law no more than an unfulfilled idealistic dream.

The rule of law becomes meaningless when laws are engineered to be flexible… laws which can cite dozens of circumstances whereby an arrest can be made… let's call them ‘violation triggers'. It's like arming lawmen with shotguns.

With so much leeway given law enforcement officers, whereby one cannot turn around without being technically in violation in some manner, creates a judgment-call situation and that flexibility is reminiscent of the arbitrary justice from the Dark Ages… or a police state. When discretion enters the picture as to whether or not an arrest should be made, or charges filed, then the 'rule of law' evaporates.

While justice isn't determined in societies without involving judgment, right or wrong, the lion's share should belong to the courts. However, in the last 40-50 years an unhealthy amount of this responsibility has found its way back into the hands of law enforcement.

Threatening and intimidating or shotgun rule?

Under Arizona law, simply yelling at somebody without taking any other ‘hostile’ action, can be legally construed as ‘threatening and intimidating’ and opens the door whereupon an arrest can be made. Although a ridiculous condition, the ‘can be’ part is the point, where the main problem lies. Under Arizona law there exists nearly a dozen instances whereby one could be charged for threatening and intimidating. With the legalese used to describe these instances, it can cover almost everything imaginable… giving excessive latitude to the police officer’s discretionary powers.

While it is unlikely charges would be filed against a person for simply yelling at someone, the point is… charges might, or might not, be filed. Arbitrary... no? As we all know, the option of whether or not an arrest should be made belongs to the police officer, except... where does ‘option’ fit in the rule of law? The term ‘rule of law’ certainly doesn't suggest 'flexibility'. If options and flexibility fit, then the concept (as a theory) isn’t sound.

In order for the rule of law to become an actuality, laws must (or should) be strictly enforced... of course, hopefully only occurring when laws are fair and reasonable. It's to know exactly where the lines in the sand are drawn in order to avoid arrest. That is exactly what the plebeian class of ancient Rome wanted... which the Law of the Twelve Tables provided. For criminal law, it would require simple laws without the verbiage which can broaden their scope. While generally the long-winded legalese in civil law is designed to clarify, clarification in criminal law, as it is now written, amounts to latitude.

The rule of law was envisioned to create a situation whereby 'law' can be enforced judiciously, but with the ability to put half the population behind bars... it's another animal. As things stand, it's going in that direction. In the 1970s, there were roughly 200,000 prisoners nationwide, today there are over 2,000,000. This 'latitude' is to blame.

It seems clear; legal instruments with discretionary latitude resemble 'guidelines', not laws. Laws should be specific and the less specific they are; the less they can be described as laws. They become guidelines and since guidelines are intentionally vague, they can cover a broad range of circumstances. In the end, it amounts to arbitrary justice. There is a great danger in having laws not narrowly specific. It’s a great danger to justice… perhaps the greatest danger.

The rule of law and democracy

When politicians go about espousing the rule of law to other countries as if it exists in America, it's only partially true. It only exists in business matters. Curiously, it is also insinuated that the rule of law can only exist within a democracy. It isn’t true. The dedication to the rule of law can occur in any type of government… even within a dictatorial regime. Any differences would be in a country’s dedication to the principle.

What, pray tell, is the difference between arrests without legal grounds (truly arbitrary, as in Mexico), and arrests with legal grounds when a violation can be found within almost any circumstance?

While Mexican police officers will often arrest anyone on a whim, whether they broke any law or not, being a completely arbitrary arrest, it really isn’t any different in America. From merely a personal dislike for someone, a police officer has within his arsenal all sorts of ammunition whereby an arrest can be legally made. While a tiny 'infraction' doesn't often led to an arrest, it can and does happen. One's respectful attitude towards the police officer often makes the difference, not necessarily how far one crossed the line. No matter how you slice it, it smacks of 'arbitrariness'.

But should respectfulness really be part of the process? Does it somehow separate guilt from innocence or deserving from undeserving? Seemingly in the opinion of most police officers, it does. Getting thrown in the slammer for merely sassing the police is clearly 'revenge'.

Dirty looks in a police state

In Arizona, if someone makes a pass at your girlfriend, boyfriend, husband or wife, don’t even give them a dirty look… it's also considered ‘threatening and intimidating’. You'd be subjecting yourself to possible arrest. Don’t keep visible your old psychedelic bong from Woodstock as a souvenir either, if it has any traces of marijuana, even from the 1960s, you could be possibly arrested for possessing drug paraphernalia. Or, if you admitted to a police office that you have smoked marijuana in the last 7 years, you could be arrested. While such arrests are only a possibility… that’s the point. The fact these laws are dumb is another matter.

If by chance an officer can find no reason to arrest you initially, then there are other ways the police can utilize the law. For example, if you are stopped because of a broken taillight and refuse the officer’s request to search your car, you will possibly be (probably be) arrested whereby an officer can search your car in order to ‘inventory’ your possessions. As a consequence of their 'inventory findings'… from a legal standpoint it’s the same as if found by a legal search (having a warrant). It’s just their little way of getting around having to obtain a search warrant… except that’s the rule of law of a police state.

The officer could also claim your grandmother in the back seat is a 'known prostitute' and you, therefore, a pimp. Even talking to a 'known prostitute' is considered a crime... certainly grounds to stop and question you further. But known to whom? Is it expected to be common knowledge?

Having once served on a county Grand Jury, it's all been seen. In America today, only the comatose can avoid the looming chance of a possible arrest.

So, in the event you are not arrested for yelling at someone… is it simply a matter of getting away with something? Should you be thankful? Or should ‘yelling’ be a condition at all? After all, to yell at someone is quite common and most often justifiable. It's also a healthy way to let off steam. Even grandmothers yell. At any rate, we shouldn’t have to rely on a policeman’s good judgment because when we do, then the rule of law does not exist.

A law simply stating "threaten not bodily harm" (or similar) is all that is needed. Anyone involved would know when it occurred. It can't, however, be pre-determined by legalese. If not supported by evidence or third party testimony, it is one of those cases "you'd have to have been there'' to fairly determine. The excessive conditions as set forth in today's laws merely offer 'excuses' for an arrest.

But the scope of 'threatening and intimidating' is like is more like a hand grenade. Even a departing-from-the-scene boisterous statement "we'll see about that!" can cause an arrest even if only threatening a lawsuit. It actually happened. So, was this considered a genuine threat... on a par with picking up a hammer? Or was it about intimidation because of the boisterousness... that one can't express anger? Or did he just look intimidating? But what is intimidating... size, facial expression, voice, stance, anger, beard? Whatever the officer wants... it's open season.

The rule of law a deterrent to the business of law enforcement

As arrests continue to skyrocket putting a serious strain on courts and prison systems, legislators should know excessive latitude is the cause. Eliminating it would not only serve justice, but it would greatly trim their budget deficits. With the vast number of prisons being constructed, one might easily suspect it is now America's biggest 'growth industry'.

While law enforcement does indeed play the role of 'protector', exactly as advertised, likewise the courts and prisons do exactly what is said of them, we rarely hear the rest of the story... what other things they do or don't do, what other things they are or aren't. The greatest thing going unsaid is that they are also 'businesses'... after all, their jobs depend entirely on 'customers' (crime). Since the extent of latitude afforded police officers would greatly affect the amount of business, thus every single job in the judicial system, their opinions on this matter would naturally be bias. It would be a great mistake for legislators not to take this into account.

Since earlier legislative sessions apparently weren't concerned about the ramifications from such 'liberalism', it would seem the whole matter needs to be re-examined... although to do so is to ignore history. Opinions on the rule of law can be found in a thousand places including Plato' Statesman and Laws, the Magna Carta and Thomas Paine's Common Sense (1776). However, there is little historical information on 'police discretion' since it really wasn't addressed in America until the 1950s, previously considered a taboo subject. Since the two cannot be disentangled, in some way it would be addressed.

While it's likely most opinions favor the need for police discretion, perhaps often seen as a 'necessary evil', there seems sufficient evidence the excessive latitude now afforded isn't working. Although there is no known study, an impossible task, the practices during the 1940s-1950s 'seems' to have worked best. A graph, if one existed, would likely show justice was at an all time high.

Such a graph would only tell us the effectiveness of police training up until the early 1960s however... about the time the structure of laws began to change. Having more flexibility (more 'violation triggers'), the current laws would have caused a change in police training which, it seems evident, caused the downturn in 'responsible discretion'. While for decades law enforcement was making admirable progress, it was legislative irresponsibility which caused the reversal. Behind the scenes, of course, were the lobbyists misguiding everyone.

Despite the arguments, there'd still be people who'd say it’s not possible to get away from the reality of the present situation... that it isn’t possible to create laws which are simple, without latitude, and still empower the police to enforce the intent. In those cases, they haven't yet considered police could exercise better judgment if left alone... out from under the umbrella of excessive legalese. After all, since the intent of any law is always simple, so too should be the approach. The likelihood the intent will be properly served is increased. As it is, it is lawyer legalese trying to make the calls based on presumptions. The variables in a field operation make detailed instructions impractical and thus a hindrance.

Presumptuous instructions not only pressures good cops into making poor decisions but they provide the bad ones with excuses (for an arrest). Since decency (good cops) would repel such an atmosphere - to quit or never join the force - it increases the percentage of bad cops.

In criminal law, simplicity is the only way to make the rule of law a reality. The wider the scope of a particular law (shotgun effect), makes further away the reality. Conversely, the narrower the scope and more defined the target, the closer the reality.

Police discretion

Police discretion has other faces however... a University of California - Davis report (1969) cited the following reasons for non-arrest:

Police believe the legislature did not desire full enforcement. Instead, they believed the politicians were making symbolic statements, expressing an ideal, or appearing to be tough on crime. Some (community standard) statutes are full of ambiguity, and some old statutes need to be taken off the books. Other laws may carry penalties that the police think are too severe.

While technically (theoretically) discretionary powers and the rule of law can't coexist, as a practical matter the police should (must) have at least some discretionary latitude. However, the overly-broad and ambiguous laws of late have greatly increased this latitude and the likelihood of arbitrary justice. Today, armed with discretionary powers effectively unlimited in scope, too much depends on the officer and his disposition. The dangers of unlimited discretionary powers were recognized centuries ago and the very reason the concept 'rule of law' was conceived. It was first introduced in the Magna Carta (A.D. 1215)... but lately with the dangers being brushed aside, as if not real, is evidence that history has been forgotten.

The act of considering whether justice can be better served (or not) through broad police powers is to re-invent the wheel. History has already spoken. While there is always the chance arbitrary justice will be administered even under the most perfect system, legislatures continue to increase that possibility. If, however, most legislators believe a police state is the most efficient way to administer a society, and the current laws suggest they do believe it, then they should at least admit it. Of course, no legislator would admit being un-American.

If a country reaches a point in jurisprudence, as America has, whereby there was no conceivable need to declare 'marshal law' anymore, that fully-enforcing the existing laws would suffice, then the afforded latitudes are too much. The clamor for 'efficiency' in law enforcement, which really amounts to 'expediency', is of a logic that history has habitually repelled.

A.O. Kime

Last modified: 03/07/16