In the West Coast’s constant string of efforts to keep the police officers of a community away from their community, California had decided to try to revoke consent searches. To try to understand the reasons for this effort, one must enter into the mind of the Utopian politician or activist who thinks that the police are always the enemy and people, including suspected lawbreakers, should be left alone.
To be sure, there is a fundamental right to go about one’s business with minimal government interference. As Justice Brandies once put it “The makers of the Constitution conferred the most comprehensive of rights and the right most valued by all civilized men—the right to be let alone.” We also understand the concept of our “social contract” between the public and its governance, first postulated in the 16th century wherein some personal freedoms are subrogated for the protection of all.
These protections, without which our freedoms would be limited by those with physical and economic power, are in turn limited by the Constitution and the laws instituted by elected representatives of the people. If the reader will indulge a few more sentences of our civics lesson, it is clear that throughout history, both in the U.S. and any civilized nation or tribe since man gathered in social units, one of the first functions of community governance is the exercise of police power. Whether appointed as a career or as an obligation of able-bodied citizens subject to action from the hue and cry of a night watchman, there have always been peacekeepers empowered by law.
Importantly, a concept at risk of being forgotten, our American law enforcement is predicated on the principle that the people are the police, and the police are the people. Most prominently articulated by Sir Robert Peele, the founder of the London Metropolitan Police whose Peelian principles are a model for modern policing, it means that every citizen has an obligation to act as a peacekeeper.
Part of that principle is embodied in laws that still exist in most states that require a citizen to obey a request from a police officer to assist in an emergency. The old west’s Sheriff’s Posse is another example. The common law concept of a citizen’s arrest is still active in most jurisdictions. Notably, a concept forgotten by those antagonistic to the very existence of police agencies is the requirement in every U.S. jurisdiction that a citizen must submit peaceably to a lawful arrest.
As we examine the series of recent legislative and policy decisions that contradict years of acceptable police practice, it is clear that rather than strengthening communities to engage in peace-keeping, the gulf between the responsibility of citizens and their appointed protectors has widened. Efforts to eliminate citizen’s arrest laws, stand your ground laws, and constant efforts to limit citizens’ right to possess firearms all move toward making only the official agent of the government as peacekeepers.
Further reducing proactive police interactions are laws that prohibit police from pursuing suspects, removing reasonable use of force tools, eliminating qualified immunity (but only for police, not prosecutors, judges, or politicians), legalizing jay-walking, legalizing narcotics use and possession, making felonies into misdemeanors, eliminating stops for traffic violations, and now California’s efforts to prohibit its citizens from consenting to a search by law enforcement.
The debate on the merits of California’s proposal is unfolding but Assembly Bill 93 would eliminate consent as a valid search by a law enforcement officer. The first answer to defend against unwanted police searches is to answer “No” when an officer asks permission to search one’s car, person, or home. No new law is needed. If the officer is relying entirely on the person’s consent, then no lawful search can proceed and the person’s refusal cannot be a factor in establishing legal grounds for the search.
A search based on articulable facts that give an officer probable cause may proceed without consent, with a preference for obtaining a warrant if circumstances allow. But Assemblyman Isaac G. Bryan, the author of the bill, thinks the police shouldn’t be asking for assistance in investigating matters, and citizens shouldn’t be answering. Bryan is an outspoken advocate of defunding the police and diverting money from law enforcement. It is one thing to distrust police as a political stance, but this bill distrusts citizens and takes away their right to participate in lawful police investigations. The proposal is not merely an insult to law enforcement, it is an affront to the very nature of community peace-keeping and individual responsibility.