The officer's mask: Anonymity, state power, and the corrosion of democratic accountability

“ It is not a liberty that I have, but a power. That a landlord has a right of re-entry on his tenant does not mean that in re-entering he does the tenant no wrong, but that by so doing he effectively terminates the lease. [182]
A power may be defined as ability conferred upon a person by the law to determine, by his own will directed to that end, the rights, duties, liabilities, or other legal relations, either of himself or of other persons. Powers are either public or private. The former are those which are vested in a person as an agent or instrument of the functions of the state ”

“ It explicitly declares that the objects of your association are, “the protection of the person and property of its members, and to assist the civil authorities in the enforcement of law.” The wisest and greatest of Americans said that this government of ours was a government “of the people, by the people, for the people.” In this country, all power, all authority, is vested in the people. They make and unmake laws. He, therefore, who derides or disregards law, is not contemning or defying a despot or an autocrat—he is antagonizing the sovereign power of the people. ”

“ Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. ”

“ One of the most essential and challenging jobs in America belongs to our law enforcement officers. The men and women who safeguard our lives and property every hour of every day are true heroes. They must be physically fit, well-versed in criminal law and procedure, skilled in the use of weapons and other technologies, adept at communicating, leading, and problem-solving, and able to make split-second decisions in life-or-death situations. ”

“ By the President of the United States of America
A Proclamation
Despite the dangers they face while patrolling our Nation's cities, neighborhoods, and highways, America's law enforcement officers continue to serve with commitment and distinction every day. They put themselves in harm's way to safeguard our fellow citizens, and their dedication to the rule of law is essential to maintaining a just and orderly society. ”

“ Police officers, it has been said, are the soldiers who act alone. But we can't let them be alone. The community must honor their service, respect their example, obey the laws they uphold, and walk beside them. ”

“ A law enforcement officer performing his official duties cannot be required always to be in uniform or to wear his badge of authority on the lapel of his civilian clothing. Nor need he be required in all situations to proclaim himself an arm of the law. It blinks the realities of sophisticated, modern-day criminal activity and legitimate law enforcement practices to argue the contrary. ”

“ Its men and women hide behind a million masks; no man looks beneath the mask his neighbour wears, for he is interested only in that which he sees with the least possible effort: the surface. He sees his neighbour but he knows him not. He keeps his own mask in place and wanders among the millions, secure in the thought that all other men are as casual as he,—and as charitable.
From time to time the newspapers come forward with stories that amaze and interest those of us who remain, and always will remain, romantic and impressionable. ”

“ “It has been the one song of those who thirst after absolute power that the interest of the state requires that its affairs be conducted in secret.... But the more such arguments disguise themselves under the mask of public welfare the more oppressive is the slavery to which they will lead.... Better that right counsels be known to enemies, than that the evil secrets of tyrants should be concealed from the citizens. They who can treat secretly of the affairs of a nation have it absolutely under their authority; ”

“ The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. ”

“ A legal person is as incapable of conferring authority upon an agent to act on its behalf, as of doing the act in propria persona. The authority of the agents and representatives of a corporation is therefore conferred, limited, and determined, not by the consent of the principal, but by the law itself. It is the law that determines who shall act for a corporation, and within what limits his activity must be confined. Any act which lies beyond these legally appointed limits will not be imputed to the corporation, even though done in its name and on its behalf. ”

“ History is not without examples of the outlawry of certain political, religious and economic beliefs and the relentless prosecution of those who dare to entertain such beliefs. And history has a way of repeating itself. It therefore takes no stretch of the imagination to picture law enforcement officers arresting those accused of believing, writing or speaking that which is proscribed, accompanied by a thorough ransacking of their homes as an 'incident' to the arrest in an effort to uncover 'anything' of a seditious nature. ”

“ The extralegal power and authority of leaders over voluntary organizations of men throughout a community who are banded together in order to press their interests at the expense of other interests, and who go to the utmost verge of the criminal law, if they do not claim immunity from it, while obeying an authority which acts in secret and without responsibility, is a phenomenon which shows the inadequacy of the existing State to guarantee rights and give security. ”

“ Violation of state law there may be. But from this no immunity to federal authority can arise where any part of the Constitution has made it supreme. To the Constitution state officials and the states themselves owe first obligation. The federal power lacks no strength to reach their malfeasance in office when it infringes constituti nal rights. If that is a great power, it is one generated by the Constitution and the Amendments, to which the states have assented and their officials owe prime allegiance. ”

“ In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not in any case surrendered as a slave? And might it not be well at the same time to provide by law for the enforcement of that clause in the Constitution which guarantees that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States"? ”

“ The Federal Government would become the only law enforcement agency with effective power to compel testimony in exchange for immunity from prosecution under federal and state law. These considerations warrant some elaboration.
Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. ”

“ One FPD officer estimated that about a quarter of the Ferguson community distrusts the police department.
A growing body of research, alongside decades of police experience, is consistent with what our investigation found in Ferguson: that when police and courts treat people unfairly, unlawfully, or disrespectfully, law enforcement loses legitimacy in the eyes of those who have experienced, or even observed, the unjust conduct. ”

“ The law, which on its first appearance presented itself as a compendium of customs useful for the preservation of society, is now perceived to be nothing but an instrument for the maintenance of exploitation, and the domination of the toiling masses by rich idlers. At the present day its civilising mission is nil; it has but one object, to bolster up exploitation. ”

“ As usual, the popular intelligence has stolen a march upon the men of books. It has already put together the philosophy of this history, and is busy laying down its essential landmarks. Law, in its quality of guarantee of the results of pillage, slavery and exploitation, has followed the same phases of development as capital; twin brother and sister, they have advanced hand in hand, sustaining one another with the suffering of mankind. In every country in Europe their history is approximately the same. ”

“ Its character is the skilful co-mingling of customs useful to society, customs which have no need of law to ensure respect, with other customs useful only to rulers, injurious to the mass of the people, and maintained only by the fear of punishment.
Like individual capital, which was born of fraud and violence, and developed under the auspices of authority, law has no title to the respect of men. Born of violence and superstition, and established in the interests of consumer, priest and rich exploiter, it must be utterly destroyed on the day when the people desire to break their chains. ”

“ Thus, the protection of exploitation, directly by laws on property, and indirectly by the maintenance of the State, is both the spirit and the substance of our modern codes, and the one function of our costly legislative machinery. ”

“ Socialists know what is meant by protection of property. Laws on property are not made to guarantee either to the individual or to society the enjoyment of the produce of their own labor. On the contrary, they are made to rob the producer of a part of what he has created, and to secure to certain other people that portion of the produce which they have stolen either from the producer or from society as a whole. ”

“ As we understand it, the Government’s case on rational connection is that, at this time of public danger when the use of face covering is prevalent among vandals and violent protesters, for the purposes of law enforcement, investigation and prosecution, police officers have a heightened need to see a person’s face in order to verify his or her identity not only during assemblies or processions but also in public places. ”

“ For law enforcement and judicial officials handling cases of organized crime and their close relatives, protective measures may be adopted, such as personal protection and the prohibition of certain persons from having contacts with them. ”

“ Such official cannot so justify when acting under an unconstitutional enactment of the legislature. So, where the state official, instead of directly interfering with tangible property, is about to commence suits which have for their object the enforcement of an act which violates the Federal Constitution, to the great and irreparable injury of the complainants, he is seeking the same justification from the authority of the State as in other cases. The sovereignty of the State is, in reality, no more involved in one case than in the other. ”

“ The act to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting, by the use of the name of the State, to enforce a legislative enactment which is void because unconstitutional. ”

“ Sir Frank Tarleton, what does this mean? My step-father was murdered, and you know it. You are trying to hush up the case, I suppose, because some of the people involved in it are so high up that the police want to let them off. There seems to be one law for the rich and another for the poor. It’s the high-up people, the people with titles, who are the worst. I’ve seen those numbers in the diary, and I can guess pretty well what they mean. They’re the guilty patients, the ones who were in his power, [135] and had the greatest motive to murder him. ”

“ It effectively takes away the protection of the Fourth Amendment against unreasonable searches from those who are placed under lawful arrest in their homes. Small, minute objects are used in connection with most if not all crimes; and there is always the possibility that some fruit of the crime or some item used in the commission of the offense may take the form of a small piece of paper. Using the subterfuge of searching for such fruits and instrumentalities of the crime, law enforcement officers are now free to engage in an unlimited plunder of the home. ”

“ The Law Governing Uses of Deadly Force by a Law Enforcement Officer The federal criminal statute that enforces Constitutional limits on uses of force by law enforcement officers is 18 U.S.C. § 242, which provides in relevant part, as follows:
Whoever, under color of any law,...willfully subjects any person...to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime] . ”

“ Hence those cases do not supply an authoritative guide to the problems under § 20 which seeks to afford protection against officers who possess authority to act and who exercise their powers in such a way as to deprive a person of rights secured to him by the Constitution or laws of the United States. It is one thing to deprive state courts of their authority to enforce their own laws. It is quite another to emasculate an Act of Congress designed to secure individuals their constitutional rights by finely spun distinctions concerning the precise scope of the authority of officers of the law. ”

“ In the absence of clear direction by Congress we should leave to the States the enforcement of their criminal law, and not relieve States of the responsibility for vindicating wrongdoing that is essentially local or weaken the habits of local law enforcement by tempting reliance on federal authority for an occasional unpleasant task of local enforcement. ”

“ Generally state officials know something of the individual's basic legal rights. If they do not, they should, for they assume that duty when they assume their office. Ignorance of the law is no excuse for men in general. It is less an excuse for men whose special duty is to apply it, and therefore to know and observe it. If their knowledge is not comprehensive, state officials know or should know when they pass the limits of their authority, so far at any rate that their action exceeds honest error of judgment and amounts to abuse of their office and its function. ”

“ The significant question, rather, is whether law enforcement officers and those entrusted with authority shall be allowed to violate with impunity the clear constitutional rights of the inarticulate and the friendless. Too often unpopular minorities, such as Negroes, are unable to find effective refuge from the cruelties of bigoted and ruthless authority. ”

“ In conducting criminal proceedings, the people's courts, people's procuratorates and public security organs shall divide responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of the law. ”

“ Where fundamental law obtains, a portion of the civil power becomes latent, and only a diminished remainder is left free in the hands of the person or persons who are there said to rule. Such person or persons are not the adequate ruler of the State, as they have not the full power, but the people, with whom rests the latent authority to cancel certain laws, are to that extent partakers in the sovereignty. Where there is agreement of the whole people, great and small, no part of the power remains latent, but all is set free. ”