Author: Charles N Braun II, Attorney at Law
This writer has been practicing law for the last 44 years with a heavy emphasis on handling police legal issues of all types as well as teaching public servants how the law applies to their particular responsibilities.
In America there is only one profession that uses the word “law” in it’s professional name sake - American Law Enforcement. This fact has critical meaning as it implies that everything a police officer does must be sanctioned and authorized by the law. To state it alternately, a police officer can only perform in his/her daily duties what the law specifically allows. No other nation in history has been built so monumentally upon the notion of “law and order”, and upon the very unique concept that the enforcers of the law cannot themselves, violate the law.
Looking at history, two of the earliest sets of laws created by humankind was the Code of Hammurabi (a Babylonian writing created from 1755-1750 BC containing a total of 282 rules) and the various laws created in the Old Testament including the Ten Commandments as given by Moses. In the Old testament the word “law” comes from the Hebrew word “Torah” meaning instruction.
In America, the law in the year 2021 has grown to be much more voluminous than both the Code of Hammurabi and the Old Testament combined - many times over. This makes the task of a law enforcement officer very challenging. With three separate branches of government (legislative, executive, and judicial) and three levels of government (federal, state, and local) the law making in America is a never ending process. A professional officer not only has to have a good working knowledge of the laws that control his/her actions but it is equally important to stay current with the ongoing changes in the law (new laws, amendments to laws and repeal of laws). Easier said than done. Despite this great challenge, the U.S. Supreme Court has made it quite clear in the case of Harlow v. Fitzgerald, 457 U.S. 800 (1982) (one of the most important civil liability decisions ever made regarding all public officials including American Law Enforcement) that when police officers are sued under federal/constitutional law claims that they are only entitled to the defense of qualified immunity. The officers sued in defense must show that their actions were OBJECTIVELY REASONABLE as measured by CLEARLY ESTABLISHED LAW. If the officer can demonstrate this, usually the officer being sued wins by summary judgment without going to trial. If this cannot be shown, then the case will usually proceed to a full jury trial. Thus, given this process, one can easily conclude that knowing and following the law is the single most important requirement for law enforcement officers.
The ideal legal protocol for every American police officer involves a four step process:
1. Find the law that applies to the specific actions wanted to be taken by the officer (this can be done by self study, attendance at training programs that discuss the law as it relates to that planned activity, or by seeking professional legal advise from a local prosecuting attorney, a PD legal advisor or other attorney); 2. Develop a strategy for making sure that the officer’s planned actions from a practical standpoint will reflect the legal mandates; 3. After the planned activity is actually completed do a quality control type review to correct mistakes or make improvements to the officer’s actions the next time this type of activity is done; and finally, 4. The officer must take steps to insure that he/she stays current with any and all changes in these various laws used thru the passage of time.
In an effort to simplify this process, this writer has reduced American law into just six different sources or types of laws that need to be constantly monitored by an officer:
1. Federal and State Constitutions. Police academies across America are excellent at explaining what sections of the U.S. Constitution (which in the U.S. Legal System is the supreme law for all Americans including law enforcement) apply to the police; but remember, your individual state also has a constitution and this state constitution can give citizens in that state even greater legal protections regarding police activity. While most state constitutions merely mimic the federal constitution, there is a growing trend around the country where state court decisions using their own state constitution are choosing to more tightly restrict their state/local police actions when compared to the minimum police standards established at the national level.
2. Federal (Congress), State (general assembly), and local (county, city, town, and townships) legislative bodies. In this source for the law, one will find the law via statutes/ordinances which create both the criminal and traffic codes.
3. Federal, State, and local judiciary. All American officers must obey U.S. Supreme Court police cases as well as the decisions by the Federal Court of Appeals that oversees your state (for example the States of Indiana, Illinois, and Wisconsin are controlled by the U.S. 7th Circuit Court of Appeals). In addition, officers of course must comply with the police cases decided by the appellate courts in their individual state as well as any individual trial court decisions where the officer or his/her PD is a named party to.
4. Federal and State duly promulgated regulations made by the executive branch with the CFR (Code of Federal Regulations) being the most important. During the Covid crisis we are also seeing an increased use of “Executive Orders”, a process that will ultimately be reviewed in great detail in court cases.
5. Management/employer authority over employees. As long as PD agency heads are complying with the above 4 sources for American law, then they are free to tightly regulate the conduct of the employee officers, which is done primarily via the creation of written directives commonly called PD SOPS.
6. Collective bargaining (union) contracts and individual employment contracts. If these exist within a particular law enforcement agency, these requirements must also be honored by both PD management and the rank and file employees.
While the American legal scene for police is intricate beyond belief, at least it is good to know that there are only six different types of laws that the “law” enforcement officer needs to monitor and comply with.