December 11th, 2008

Breaking the Law to Enforce the Law


photo credit: So Cal Metro

If police officers are charged with upholding and enforcing the law, does that also grant them the authority to break it? If so, to what extent may an individual perform an illegal act to punish another individual for doing the same? And are there some illegal acts that are permissible to be broken in the name of upholding the law, while others are not?

I believe it goes without saying that those who enforce the law should apply the law in equal measure and force to themselves. Short of this standard of justice, how is the average citizen to have any confidence in and respect for the law when those who are charged with upholding it exclude themselves from its restraint?

Examples of this abound, but the easiest one to discuss is the situation where a police officer exceeds the speed limit in his vehicle in order to pull over and cite somebody who was seen exceeding the speed limit himself. Are law enforcement officers somehow exempt from this (malum prohibitum) law? If so, from where do they derive this authority, and to what situations, if any, does it not apply?

Recently, many Americans have become increasingly frustrated with the government for pursuing actions that would be blatantly illegal and immoral if pursued by individuals. The dichotomy of power and increasing division in accountability bleeds through our culture and fosters a sense of distrust in those who are supposed to be upholding the law. But there needs to be a distinction between breaking the law for other purposes, and breaking the law in order to enforce it.

It is this latter idea which is worse in my mind, for it is lawlessness masquerading as justice. Any individual who raises himself above the law—for whatever reason—is dangerous, but those who do it in the name of enforcing and upholding the very law they are breaking are worse, if for no other reason than their hypocrisy.

When did we ever (implicitly or otherwise) give our law enforcement officials authority to bend and break the rules?

31 Responses to “Breaking the Law to Enforce the Law”

  1. Yin
    December 11, 2008 at 11:42 am #

    With the specific example of speeding police officers, I’m curious what (if anything) you would suggest in its place. How is a reckless speeding driver, who is endangering the lives of the drivers around them to be caught if the police officer isn’t allowed to match his speed?

    If my house was on fire, I would hope that a firetruck would be speeding and running red lights in order to get here as fast as possible! Wouldn’t you?

  2. Connor
    December 11, 2008 at 11:49 am #

    This is part of the background in why I posted this: there are certain malum prohibitum laws which we commonly agree (as you point out) are okay to be broken in certain circumstances.

    Another one: if I see somebody have a heart attack on the other side of the intersection, should I be punished for jaywalking or running into traffic if I try to quickly run over and help?

    In most circumstances, a law enforcement officer would likely not write up somebody in this situation—but they can, and no doubt have many times. If I’m pulled over for speeding while rushing to the hospital because my wife is in labor, should the cop write me up or not?

    I think that with these malum prohibitum cases, as long as they don’t negatively affect anybody else and there is an emergency involved, then we should be justified in breaking them (since, by their very nature, these actions are only against the law because the government says so—not because they are moral evils).

    I guess the main point of my post is to figure out where, if any, the line is drawn in where it is acceptable to break the law to enforce it. I certainly favor going after reckless and endangering people in order to secure everybody else’s safety. But where does it stop, if at all? Does the police officer who is able to ignore traffic laws soon entertain the notion of disregarding other ones as well?

    One might hope that law enforcement officials would exercise some restraint in this matter, but if the power is in their hands to rise above the law, it’s important to question where that behavior legally stops.

  3. Brennan
    December 11, 2008 at 12:39 pm #

    The line was drawn here luckily!

    http://obrag.org/?p=1326

  4. Skie
    December 11, 2008 at 12:40 pm #

    One thing I remember from my law class is how often the word “reasonable” or “reasonably” was used in official legal definitions. What struck me of course, is that seems fairly arbitrary, and does not not bring with it any absolute boundaries.

    In many cases, the “reasonable person” standard is very useful. We deem it reasonable for a government military to posses nuclear weapons, yet we would find it totally unreasonable for an individual to posses the same.

    But the lack of any absolute standard does leave room for abuse–and I think that’s what you are referring to here. I think the Patriot Act is a clear example of this.

    However, unless we remove the word “reasonable” from our legislation and replace it with Pharisaical nit-picky this-and-thats for every imaginable condition that a citizen may encounter, and then enforce it gestapo style, I’m afraid there’s no easy way around it.

    And if a police officer is really to be no different that a citizen, or the government is to have no more authority than the people, will that not lead us down the path of anarchist vigilantism?

  5. Brennan
    December 11, 2008 at 12:51 pm #

    They should have authority over the people. But that power is derived FROM the people. So as long as you have our disenfranchised society, the lines will always be blurry… That is, till Martial Law.

  6. Connor
    December 11, 2008 at 1:04 pm #

    And if a police officer is really to be no different that a citizen, or the government is to have no more authority than the people, will that not lead us down the path of anarchist vigilantism?

    The government only has the moral authority to use the powers that we the people inherently possess and have delegated to it. I’m able to defend myself and my property, and so I can delegate that power to another person. It’s not anarchy that results from using only the authority we have been given;rather, freedom is maintained.

    So police officers aren’t reduced to the level of only defending themselves (an individual right), but instead can use the authority they’ve been granted to defend all of us (the employees of the police force), since we have delegated our individual and sovereign authority to another body of individuals.

  7. Justin
    December 11, 2008 at 2:29 pm #

    Isn’t this what “The Dark Knight” was all about?

  8. JHP
    December 11, 2008 at 2:39 pm #

    Isn’t the line drawn in law or in the official law enforcement code of conduct or something like that? In other words, maybe the law says that a policeman can speed in order to enforce the law. I don’t know though. Maybe the people have given them that authority. I’d also guess that other exceptions are built into the law. Sorry, I don’t have time to look this stuff up.

    I understand your argument and question, but it sounds a little unrealistic to be able to draw a specific line. We have to separate theory and idealism from reality. There are cases when it is justified to break the law, but you can’t define each and every one in the law.

  9. Jeff T.
    December 11, 2008 at 3:44 pm #

    Connor, this is a question right at the heart of legal positivism vs. natural law. For example, you said:

    I think that with these malum prohibitum cases, as long as they don’t negatively affect anybody else and there is an emergency involved, then we should be justified in breaking them (since, by their very nature, these actions are only against the law because the government says so—not because they are moral evils).

    Because traffic laws are designed by people for practical and pragmatic purposes, it seems reasonable to assume that people can revise and even disregard those laws for prudential purposes (such as in the protection of human life, or otherwise). They are simply enforced convention. Legal positivism claims that all civil laws are like traffic laws: human inventions, designed to meet human goals.

    However, other laws, such as the prohibition against cruel and unusual punishment, don’t seem like a human invention. It seems to be based in a higher morality that humans didn’t invent. It would seem wrong to violate the prohibition against cruel and unusual punishment (perhaps torture) for prudential purposes.

    You question is one that legal philosophers have asked for a long time: where do we draw the line? How do we know which is which?

  10. Reach Upward
    December 11, 2008 at 5:03 pm #

    JHP is correct. The ability of police to do things like exceed the speed limit is codified by many governmental entities. Often there is a reasonableness clause, as Skye noted. While this does provide some incentive for abuse, the public is not left without recourse, since remedies can be pursued under criminal or civil statute (or both in some cases).

    There is a problem in situations where governments try to exempt themselves from any liability, offering no recourse to the public. The areas of law where those issues exist must be fixed to prevent unchecked abuse.

  11. Kelly W.
    December 11, 2008 at 8:44 pm #

    Cops speed because they can get away with it. Cops speed because other cops and corrupt judges cover for them. They don’t speed because they are chasing someone. That “someone” is speeding because a cop is speeding.

    I have learned by sad experience that when any cop gets a little authority, he will immediately begin to excercise unrighteous dominion.

  12. Danika
    December 11, 2008 at 10:17 pm #

    Good comments so far and I agree with them. I’ll just add a short clarification here. Speaking as a policeman’s wife…they have plenty of laws to follow. In Salt Lake they are only allowed to use lights and sirens together in case of life or death emergency. They are not allowed to do high speed chases. Just to name a few.
    Sometimes people get mad when they flash their lights and go through red lights because they think they just don’t want to wait but if you ever see that happen please know that they’re on their way to an emergency.
    The city council usually directs the police department on what to focus on and the police force does have laws specific to it’s agency.
    I can also say that at least 1/4 of the policemen that are on the Salt Lake force are pro-gun rights, pro-Constitution, and their eyes “have been opened” to future events.
    They are controlled by city council and therein lies most of their problems.

  13. Jeremy Ashton
    December 12, 2008 at 7:30 am #

    All men having power ought to be distrusted to a certain degree – James Madison.

    I am more distrusting of policemen that speed and violate man-made legislation than I am of other individuals who do so.

  14. Brian Duffin
    December 12, 2008 at 11:13 am #

    As someone who volunteers with law enforcement, I see first-hand the need for officers to have a certain amount of latitude. For instance, speed limits.

    How quickly do you want officers responding to a fight or shots fired call? If someone is breaking into your house, do you want the officer to drive the speed limit and stop at every light? Or do you want him to activate his lights and sirens and expedite his arrival by exceeding the posted speed limit?

    In Arizona, by statute, officers are allowed to exceed the posted speed limit within certain guidelines. They are not, however, exempted from using due care and caution in how they drive and are not shielded from the consequences if they fail to exercise due dare and caution. Police officers go through specialized driver training that gives them the skills necessary to drive in emergency situations.

    Anyhow, I will get off my soap box. I see a lot of other replies that address this issue.

  15. vontrapp
    December 12, 2008 at 11:25 am #

    Re #3,
    That article, while a little alarming, I don’t think says anything about the current discussion, nor about any line to be drawn. That man clearly wasn’t acting out of any authority as a police officer. Maybe he used a police issued gun and maybe there are rules about that. But as a pro gun rights, I would have to say, barring other evidence, that this has nothing to do with misbehaving police and everything to do with self defense. Sure, he could have shot out the tires instead, but he probably felt genuinely threatened. After all, this crazy drunken lady is following him around and actually causing physical damage to his property and potentially to himself and his wife. Whether he exceeded his authority to protect himself remains to be determined in court, and it has nothing to do with the fact that he is a police officer.

    As for enforcement officials breaking the law to enforce it, of course there’s a line to be drawn. That line is at the law itself. I don’t place any police officer above the law, and I don’t think anyone should, themselves or anyone else. It would be interesting if there in fact was no provision codified to allow officers to speed in order to pull over a speeder. One could potentially bring suit against the officer to the effect that “sure I was speeding but the person that charged me is no more innocent than I, so to be fair…” Kind of a counter suit thing. Personally I believe that such exception are in fact codified and are part of the law, hence no law is being broken, but rather followed. I could indeed be wrong, as I really am clueless in this area. I’m simply operating off of common, possibly propagandized knowledge.

    Finally, all that said, I think it’s of utmost importance, as other comments have pointed out, that such codified exceptions to the law are very carefully constructed. We do not want a too vague provision to be grossly abused, or to have an entity codify itself into immunity. If there is trouble drawing a line, I would err on the side of the law that’s being enforced rather than on the loose exception side.

  16. Adrien
    December 12, 2008 at 11:53 am #

    In the case of the speeding police officer or other emergency crews, they have sirens that must be activated in order to exceed the speed limit, allowing other drivers that the emergency vehicles are not driving with the flow of traffic.

    My brothers and I have been debating this question lately. One of my brothers recently witnessed an act of violence and actually thought there was a high probability that one of the participants had a firearm. My brother was on his way home from hunting and had ample firepower with him. The question was, if someone pulled out a firearm and threatened another person, is it ethical to stop that individual with the same means?

    In Arizona, if you draw a weapon on someone, it is only legal to do so if you feel there is an imminent danger and presumably you would be returning fire in this case (if you fail to do this, it can be concluded that there was no imminent danger to do so). Secondly, if you shoot somebody because your life was at risk, you may only do so with the intent of using lethal force. Otherwise, it can be concluded that said force with a firearm was excessive because there wasn’t a credible threat to use the firearm.

    So, do you use a firearm to kill somebody that is about to kill somebody else? This would be breaking the law to prevent someone from breaking the law.

  17. Clumpy
    December 14, 2008 at 3:04 pm #

    I’m with Jeff on the distinction between procedural law and universal moral law. Still, if a policeman doesn’t have a demonstrable reason for violating a law then he’s as guilty as a citizen because he did it for personal reasons rather than as part of his protection.

  18. FunAdvice
    December 16, 2008 at 2:58 pm #

    I wonder this every single time a cop passes in front of me, speeding, without using his blinker. Then he will often flash his lights simply to go through the red light ahead.

    /sigh.

  19. yfz450
    March 28, 2009 at 8:06 am #

    205 southbound keeping pace with a car in front of my car,
    we are cruising about 75 mph in a 60, and boom there is a stater in the median leftside mind you. The stater is under the shadow of the bridge. He is parked, like a vehicle with a flat. What does the solid yellow line represent on the leftside of the freeway. I was always told a solid yellow means you can’t cross. So was he breaking the law by parking on the left side of the freeway in the center median, over the yellow line. Let me now.
    Thanks.

  20. xplore
    June 2, 2009 at 3:41 pm #

    I have a situation along a similar line. In my case the law enforcement agency is in violation of a state statute they are supposed to enforce. Would they be in criminal jeopardy in that instance or is there case law that exempts them?

  21. gary fortier
    October 22, 2009 at 12:31 pm #

    If someone has been stealing something for 13 years and then stops shouldn’t the pollice do something when they find out about? Our local police say “NO”, they’re not doing it anymore and it only cost $6000. Our city administrator concurs of course. Does anyone have a solution?

  22. Alan
    December 6, 2009 at 12:57 am #

    Poor example. You should have used the fact that most police officers feel they have the right to speed far faster than even the average speeder even without their emergency lights on.

    We have all seen it happen, and more than once a year for most drivers. The lights and siren as the warning of this driving by them for them to uphold the law that others break, but to break those laws without an emergency is illegal and inexcusable.

  23. Brian
    December 26, 2009 at 7:31 pm #

    Re:: Skie (reasonable) – I’ve been a jurist for two criminal trials, and have some understanding of the history and need of a jury by peers (FIJA, also). In the judge’s instructions to the jury, each one (granted, it’s scripted somewhat) tells us, the jurors, to make our decision based strictly on the law (and other things, but they aren’t the point). The jury doesn’t (in my cases) prescribe the penalty, and in some instances the penalty is automatic for the crime.
    So, to avoid the appearance of ‘Gestapo style’ enforcement of the law, a jury of peers is drawn up but forced to draw the line at the letter of the law (which will always be wanting), after which the state prounounces judgement and penalty.
    Where legal procedure is designed to protect the law abiding citizen, it is used to free otherwise obviously-guilty parties (technicalities, to the laymen).
    Reasonableness is not left to the people. Reasonableness is tightly bound by the letter of the law (excepting legislators, of course).
    I don’t disagree with the speeding cop or one who crosses the solid yellow line in the course of enforcing the law, but traffic enforcement is a small example of trampling one’s rights compared to what the jury system was supposed to be (not to mention our Glorious Leaders and the Constitution).

  24. m
    January 4, 2010 at 6:26 pm #

    One point about the speeding discussion, why do so many policeman that are speeding, not using their lights when speeding and if the reason being used is to get to an emergency or call of sorts in a hurry then why do they stop at lights and wait until the green to procede and begin speeding again. The best one I know of is witnessing first hand as two off duty officers entered a vehical with open beer and quite a few travellers for the ride, one of these officers being a relative. I can assure you much of this sorte of thing goes on along with the old flashing of the badge to get out of a binde when need be. I completely understand they have a thankless and often nasty job but do not agree with them charging people for breaking the law and then breaking the same laws themself.

  25. Dan
    February 15, 2010 at 10:51 am #

    Police and other emergency responders can usually disregard speed and other traffic laws by the utilization of emergency signals stipulated by state statute. However, can they break other laws while in the act of investigating or upholding the law. For instance, can a police or traffic officer park illeagly in order to catch speeders?

  26. Kelly W.
    March 13, 2010 at 8:09 am #

    Dan, years ago I observed that very thing – – an officer that was obviously and blatantly speeding between red lights. He’d fly past me at around 10 mph above the posted limit, just to stop again at the next light. Since he was stopping at each light, I easily caught back up to him again by NOT breaking the speed limit, and I wrote down his license plate number. The next day I wrote a letter to the editor describing what had happened and the license plate number of the offending officer’s car was published for all to see. The day after publication, the police chief called me up on the phone to get further details from me . The Chief says this particular officer had a history of exercising unrighteous dominion, and my complaint wasn’t the only one. The officer was fired. This shows that Connor’s article about showing proof of an officer’s disgressions are a key way to countering the cops’ unrighteous dominion. I encourage anyone witnessing such acts by corrupt cops to document it and get it into the public eye.

  27. Manny
    March 31, 2010 at 3:31 pm #

    “ALL ANIMALS ARE EQUAL
    BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS.”
    -George Orwell (from Animal Farm)

  28. jimmy
    October 22, 2012 at 12:13 am #

    A cop is no more entitled to break the speed limit than anyone else–except when lights/siren etc are utilized. As soon as a cop or fire truck or ambulance exceed the speed limit they are obliged to turn on their flashy lights and or siren.

  29. davE
    January 23, 2013 at 12:34 pm #

    “Equal protection UNDER THE LAW.” United States of America Constitution.

  30. Matheus Grunt II
    November 29, 2013 at 12:56 am #

    Speeding is not a crime, just so everyone knows. All it is is some made up numbers that a bureaucrat made up to control us and make money off of us to fund the state. The cops do what they want because they’re not held accountable. They break the law for a living, and what I mean by the Law is the Constitution. They do not support nor uphold the Law of this Land at all. They vigorously violate the Constitution/Bill of Rights in the name of enforcing illegal codes, non-laws & statutes and then we’re expected to comply or we get bashed in, raided, killed, injured, jailed or worse. The cops, well, they don’t have to do anything right, they got their buddies to cover them most of the time & the courts being corrupt, protect them too.

  31. Chuck
    March 21, 2014 at 3:43 pm #

    I agree with Matheus. The police manufacture infractions just to make themselves feel superior to the rest of us and if you question their authority you will almost always find your civil rights violated. In New York the police have the stop and kiss policy meaning the police can stop and frisk anybody they want without probable cause as long as at some point during they kiss that person on the cheek or LIPS! That right there should show you how much the police and government cares about your rights. And the government isnt going to stop it from happening. They have already started looking at people who disagree with the way they run the country as a potential terrorist. If they see you as a potential terrorist they can detain you as long as they want. So in my opinion there should be a limit to the bending and breaking of laws for everyone to follow. No person is above the law and the repercussions of their actions.

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