At 2:45, Malone explains the First Rule of Law Enforcement which has been used ever since to justify increasingly arbitrary and abusive actions, all in the name of officer safety.
Most recently, two blawgers whom I really admire discussed the issue in separate blawg posts. (For the uninitiated, a blawg is a “slang term used to describe an online blog that is written by lawyers, or one that is focused on providing legal-oriented content.” Blawg, Webopedia, http://www.webopedia.com/TERM/B/blawg.html, (Vangie Beal, ed., last viewed Oct. 10, 2014)). For now, I don’t consider this a blawg as I am not a lawyer, but both U.S. District Judge Richard Kopf and N.Y. criminal defense attorney Scott Greenfield write excellent blawgs, Judge Kopf at Hercules and the Umpire, and Mr. Greenfield at Simple Justice.
Mr. Greenfield has posted in the past about the First Rule, and he spoke about it again, at “Due Deference and the Vignette.”
Knowing that judges may have George Amos vignettes of their own, some police officers invoke his memory when there was no actual fear, to get away with conduct for improper purposes. They play the judge. They lie. They justify it because they are the good guys, and the end justifies the means. They justify it because the mutt of a citizen deserves it anyway. They play the fear card because they can.
He has it exactly right, only it is not some officers, it is most officers. For example, in the below video (at 2:10), the officer tells the person stopped that he needs to “put the phone down, it’s an officer safety issue.”
This is not an officer safety issue, it is a control issue with the officer. She told the individual to stop doing something and he declined to do so. She knows that it is not a weapon, she already identified it as a phone. At 7:05, another officer arrives and makes it very clear that this is not an officer safety issue, it is a compliance and control issue, by informing the individual that when an officer tells you to do something and the individual doesn’t do it, it is obstruction.
In another example, from Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009), a deputy makes a stop of a person who he has reasonable suspicion may be committing or about to commit a burglary. There is no doubt in my mind that from the facts the deputy does have reasonable suspicion, but Baldwin does not want to identify himself to the deputy. So the deputy handcuffs Baldwin and searches him for his ID, claiming that he was in “fear of his life.” Both the state district court and the court of appeals buy this story, and it is appealed to the Texas Court of Criminal Appeals.†
The State argues that Deputy Smith handcuffed appellant based on “officer safety.” “Officer safety” is a legitimate purpose. However, the need for handcuffing and the threat to officer safety must not be imagined or objectively unreasonable under the particular circumstances. Nor may it be done simply because a citizen declines an officer’s request to see his identification.
There is way too much deference given to the deputy in this case by the trial court judge and the intermediate appellate court judges. All of them accepted the deputy’s bullshit until the Court of Criminal Appeals.
Judge Kopf wrote an excellent post on what happens to one’s perspective when an officer is killed. I understand completely what that type of event does to one’s perspective. At the first police department I worked at, in a one year period, seven officers lost their lives in the line of duty, five to gunfire and two who were killed pursuing a stolen vehicle. It made me very conscious of officer safety and of what I needed to do to survive. I believe in the First Rule of Law Enforcement, but I also believe that our citizens have that same right to go home at the end of their day. I believe that an officer who uses “officer safety” as a way to skirt constitutional requirements as to arrest, search, and seizure has overstepped and needs to be held to account.
At the very least, we suppress the illegally seized evidence and if necessary, let the defendant walk. We don’t give the officer the benefit of the doubt merely due to his badge.
†In Texas, the Court of Criminal Appeals is the highest appellate court for criminal cases, the state Supreme Court does not have criminal jurisdiction.