What Police Reform Can Learn from the Common Law

Anti-American, radical leftists -- including many of their elected leaders in the Democrat party -- are now out of the closet and busy trying to destroy the security of life, liberty, and the pursuit of happiness that are the cornerstones of our way of life. Those three objectives are also the foundations on which sits the American rule of law. Indeed, government is instituted to provide security for them, if we are to properly understand the Declaration of Independence and the Constitution, our paramount civil law over government adopted to legally preserve those objectives.

The leftist anarchists we are witnessing in riots, destroying property, harming people’s ability to earn a living, and even killing citizens and police, have it in for the American way of life. As Antifa and other radical, Marxist groups become exposed, it is easy to conclude that they are fomenting insurrection broader than anything to do with race relations.

With the violence and anarchy we are witnessing in Democrat-ruled cities, we now hear insanely destructive calls to defund the police. Out of this chaos, however, have come louder calls for police reform by some responsible pro-Americans. I say “louder” because until now the voices of conservatives and libertarians who have expressed concerns about police abusing power, especially Fourth Amendment rights, have been mostly ignored or downplayed.

Unlike the leftist anarchists seeking to destroy the foundations of the American rule of law, conservatives concerned about abuse of power by some police or other government officials come from a perspective of preserving the principles and God-given rights on which America was founded. Indeed, the conservative perspective for police reform comes from an enormous respect and appreciation for law enforcement officers (LEOs), who on a daily basis leave their families and homes to risk their lives for the safety and security of all of us in their communities.

One major issue about which constitutional conservatives have complained is the abuse of qualified immunity, which is judge-made doctrine whereby government officials are immune from consequences of their lawlessness. Courts have come to construe that doctrine very favorably for government officials, and that has contributed mightily to lawbreaking by government officials, not just police.

In that regard, it is useful to look back to the English common law on which key principles of the American rule of law were built. As to LEOs, the brilliant 17th Century jurist Sir Matthew Hale, in his Historia Placitorum Coronae (The History of the Pleas of the Crown), provides important guidance about the role of law enforcement officials in maintaining security and peace in our communities. The various forms of LEOs of his day included sheriffs, constables, coroners, and justices of the peace. Individual civilians had certain restricted authority to make arrests, and even the entire citizen community could be called upon to chase felons in hot pursuit under what was known as the hue and cry.

Hale addresses the roles of LEOs in making arrests whether by warrant, indictment, or on the spot with not mere causeless suspicion, but probable reason to suspect a felony had been committed. Reading this 17th Century jurist, one more clearly understands and appreciates the reasonableness of the common law governing LEOs, who often risk their lives to protect the security of the community. He clearly articulates the law as it applied to use of force during an arrest, entering buildings pursuant to warrants or in hot pursuit, and more law enforcement scenarios. His reasoning is still quite relevant today.

Hale even tracks the common law power of LEOs from the time predating Magna Carta, and notes that great charter of liberty -- which made the power of government subservient to higher civil law -- created a separation of powers for sheriffs, who previously could make indictments, not just make arrests pursuant to them.

In Chapter XI, Hale addresses the reasons why LEOs had unique protections under the law. By virtue of their offices, LEOs were empowered to make arrests of felons and suspected felons, even before conviction or indictment, and in some cases use deadly force during the arrest. LEOs were “under a greater protection of the law in execution of this part of their office” for two reasons. First, “they are persons more eminently trusted by the law” in acts incident to their duties of protecting the community. Secondly, “they are by law punishable, if they neglect their duty in it.” This latter prong meant their failure to act to protect the community resulted in their being punished, which in today’s parlance means a “duty to act.”

That second prong was an essential basis for sovereign immunity, which is a concept lost on many of today’s legal thinkers. Indeed, a 1989 ruling by the U.S. Supreme Court in DeShaney v. Winnebago County Department of Social Services said government officials have no constitutional “duty to act” to protect others, and lower courts have extended this ruling to police. Not only did cowardly deputies at the Marjory Stoneman Douglas High School shooting become the beneficiaries when a court ruled the duty to act did not apply to them, but this removal of the duty to act eliminates the second prong of the common law justification of qualified immunity for police (and, as an aside, shows there never was a basis for qualified immunity extending to non-LEO government officials sitting in offices).

LEOs faced monetary and even criminal penalties for failure to do their jobs protecting the community from the “many felons who would escape,” says Hale. As to any fleeing suspect who believed himself innocent?  He “makes himself suspect by his very flight from the known officer,” writes Hale. Use of force was authorized against those who assaulted officers during an arrest or felons who flee. But when the LEO used deadly force for lesser violations of the law such as mere trespass, “this is murder,” Hale tells us.

Hale notes that this common law of the land developed “in order to preserve the peace of the kingdom, and to suppress felons.” Almost no one denies that there have been abuses of police powers, and bad cops should be punished especially hard for abusing their unique positions of trust. But good cops, pro-police constitutional conservatives, and others seeking good faith police reforms would do well to read the common law bases of LEO law described by Sir Matthew Hale.

Image credit: SMU Con Law