2020 has been an unprecedented year by any measure, from our suffering from a global health pandemic to the national reaction to the murder of George Floyd by Minneapolis Police Officer Derek Chauvin. During these unprecedented challenges, numerus state and local officials are appearing to use the George Floyd Protests and COVID-19 pandemic to ignore the rule of law and seemingly change laws they don't agree with by simply not enforcing them. Local officials' use of draconian executive orders amid the coronavirus outbreak followed by an immediate refusal to enforce these orders (and a myriad of standing laws) during protests and riots following the Floyd murder arguably violates the law and endangers the public.
Many argue that the policies and orders of state and local authorities who shut down businesses and took action against law-abiding business owners through the COVID-19 pandemic while allowing thousands of protesters into the streets in defiance of social distancing orders, curfews, traffic laws and serious crimes is a prime example of selective enforcement. The worst example of these double standards come from D.C. Mayor Muriel Bowser's refusal to rein in protests to district attorneys in New York and Philadelphia refusing to prosecute protest and riot-related crimes; while simultaneously going after police officers who were forced to defend themselves during uncontrolled riots.
The worst example, by far is the Seattle Mayor's ordering police and National Guard troops to withdraw from a busy area of the city; which is now under the control of armed protesters who are declaring it an "Autonomous Zone." This area, which protesters call the "Capitol Hill Autonomous Zone" (CHAZ) spans over six blocks in an expensive, arts-heavy area adjacent to downtown Seattle where the Seattle Police Department's East Precinct is located. The Mayor's order for police to withdraw from the area has left the precinct abandoned since Monday, June 8, leaving thousands of people in this area without police protection. Allegations of extortion, destruction of property and assault have been surfacing from CHAZ throughout the week since the occupation began.
While most Americans are of good character, not every person obeys the rule of law because of their character. For people still unfortunately in a cycle of criminality, the fear or shame of punishment, arrest, fines or imprisonment are needed for compliance with laws. Fair and apolitical law enforcement is therefore needed to deal with both individual violators but also as a necessary reminder to society that a free civilization cannot exist without legality and public order.
In the modern world, we call such prompt, uniform, and guaranteed law enforcement "deterrence," from the Latin meaning "to frighten away." One protester who disrupts a speech is not the problem. But when that protester is encouraged, hundreds to thousands more appear. With that, comes laws and responsibilities that cannot be dismissed away by claiming all "protests" are an "exercise of First Amendment rights." When these protests limit other's rights to free speech, to live and travel freely as they see fit; they have crossed the line into illegality. Worse, when seemingly minor laws like protesting without a permit, obstructing traffic and curfew violations are left unenforced, then others are emboldened to commit serious violations like assault, arson and destruction of property.
Furthermore, the use of "legislation by nonenforcement" by left-leaning politicians has been allowed to continue at a detriment to public safety for years. This was best illustrated with the election of far-left, lax-on-crime prosecutors and the establishment of "sanctuary cities" who forbid cooperation with federal immigration enforcement agencies. The widely-held belief that a local politician can refuse to enforce laws they don't agree with, without offering the necessary case law or legislation to change those laws, has now been legitimized by inaction by state and federal authorities. Thus, this problem is now metastasizing like a cancer in 2020; in where a state health secretary can order nursing homes to accept highly contagious COVID-19 patients (while simultaneously removing her own mother from a nursing home), while tacitly allowing thousands of protesters to gather in her state's largest city without the enforcement of social distancing.
Even in Washington, D.C., when I served on a Metropolitan Police Civil Disturbance Unit, there were limits to how law enforcement tactics could be politicized. Our units directed crowds, assured safety by funneling them through marching routes and kept conflicting groups from confrontations. However, we always knew the line — and knew to shift from the role of chaperones to riot police once crowds started to lose control.
Recently, it appears that law enforcement chiefs aren't upholding their duty to refuse unlawful orders issued by the elected prosecutors, mayors and governors above them. In many jurisdictions, it is a crime to fail to take police action and in others the simple act of failing to report a crime is in itself, a crime. Furthermore, by ordering them to allow acts of criminality to be committed, these officials may be committing crimes themselves. Disturbingly, many of the elected officials who are creating reckless policies that selectively enforce laws based on political and social beliefs are doing so in the name of fair and equal justice; at the risk of delegitimizing public support for this necessary movement as a result.
What is clear in speaking with legal experts is that both President Trump and state officials need to hold state and local leaders accountable for their unlawful policies.
In seeing if this was legally feasible, I spoke with Sid Baumgarten, an attorney and retired New York Guard Brigadier General who served as an Assistant Mayor of New York during the 1977 blackout and ensuing riots. Gen. Baumgarten said, "In 1957, President Eisenhower sent the 101st Airborne to Arkansas to protect the rights of African American students to attend Little Rock schools. President Trump can and should use his authority to use federalized troops to protect the rights of the citizens of Seattle."
When asked if local officials may be criminally liable for failing to uphold the law, Baumgarten said, "These local politicians will almost certainly claim some sort of qualified immunity that they are ironically trying to strip from their own law enforcement officers currently. However, the events of the past month have shown many instances where Trump could have [Attorney General] Barr look at charges if not civil suits for these officials."
For the citizens forced to live in cities where the protection of the law is currently unequal, intervention by state and federal authorities couldn't come soon enough.
A. Benjamin Mannes, MA, CPP, CESP, is a Subject Matter Expert in Security & Criminal Justice Reform based on his two and a half decade career on both sides the criminal justice system. Mannes served in both federal and municipal law enforcement in though the 9/11 attacks, D.C.-area sniper task force, homeland security exercises and natural disasters. Mannes' work in D.C. led to personal encounters with the D.C.'s unlawful personnel actions, unconstitutional gun laws and criminal justice inequalities, which led him to become an advocate for public integrity. Thereafter, Mannes served for nearly nine years as the Director, Office of Investigations for North America's largest medical board, as a Chief Compliance Officer, consultant, expert witness, nonprofit board member and political adviser. Read A. Benjamin Mannes' Reports — More Here.
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