Page 18 - June2020 FOP Magazine

The right to disobey
We have discussed in past articles the social distancing that is occurring now throughout both the city of Chicago and the nation. There are stay-at-home orders that are
being enforced. The politicians are tell-
ing us that those orders are necessary to
ensure that the spread of the COVID-19
virus is limited. Whether or not that is true
is beyond this writer’s expertise. Many people with a lot more experience and knowledge have
reasonably argued for both positions.
No matter which camp you find yourself in, there can be
no doubt that we enter a constitutional crisis when we en- force these social distance and lockdown laws. Of course, it is always law enforcement who is asked to do the heavy lifting and enforcement. So, can a police officer refuse to enforce those laws and if so, what are the consequences?
To understand this argument, one must first address whether the government can curtail constitutional rights for the betterment of all in the first place. Currently, it appears that any attack on the legality of the laws must be made based upon specific constitutional rights. For instance, the Wiscon- sin Supreme Court held that there should be no extension of the election for absentee ballots, and the recent election was ordered to proceed as planned. The argument made was that the election should be delayed until all voters could submit their ballots by mail to avoid groups of people having contact with each other at the voting booths. The U.S. Supreme Court upheld the state court decision and narrowly reviewed the is- sue as an infringement on the right to vote, ordering that the election take place as planned.
It really was a political controversy, as members of the Dem- ocratic party wanted to delay and the Republicans wanted to proceed. Putting the politics aside, it appears that the courts are reluctant to allow the COVID-19 virus to be legally weap- onized. There have been challenges throughout the nation on other emergency stay-at-home orders, and while most have not wound their way through the legal system, it does appear that the courts have sided with allowing the infringement on constitutional rights so far — the operative words being “so far.”
With the uncertainty in the legality of these social distanc- ing laws, where does that leave law enforcement? If the laws are held to be unconstitutional, will police officers who en- force these laws be held liable? Will a police officer who re- fuses to follow the direct orders to disperse a crowd or close down a church face discipline? It’s difficult to say at this point. With a reasonable degree of certainty and through the protec-
tion of our collective bargaining agreement, the officers who follow orders should be provided with indemnification if lawsuits are brought. This is said with much caution, as it depends on the specific facts of the case. One could imagine situations where a person of rank gives a vague order to disperse a crowd, and — like many en- counters with the community — it goes sideways, and the officer is required to use force. However, an officer should generally be protected from damages if he or she is simply acting within the scope of and under the direction of
the supervisors and, ultimately, the mayor.
The second question regarding the refusal to obey a direct
order is much more complicated. Rule 6 of the Rules and Conduct of the Chicago Police Department is very clear. It expressly prohibits “[d]isobedience of an order or directive, whether written or oral.” Hence, if a police officer is given a direct order to close a religious service and he or she refuses on First Amendment grounds, that officer may very well face discipline for violating Rule 6. However, Rule 1 also states that officers should not violate any law or ordinance. Is not closing a religious service in violation of the most basic “law or ordi- nance” in existence, the First Amendment to the U.S. Consti- tution? Did we not take an oath that “I . . . do solemnly swear that I will support the Constitution of the United States, and the Constitution of the State of Illinois, and that I will faith- fully discharge the duties of the office?” Would not violating the constitutional rights of people going to church be in direct conflict with our oath of office?
Again, apologies for all the questions, but the answers are not apparent. Clearly, law enforcement officers have not only the right but the duty to disobey an illegal order. Unfortunate- ly, the law on these stay-at-home and social distancing laws is unsettled, and their constitutionality is still in question. An of- ficer who refuses to follow a direct order could argue that the order was unlawful and it would be illegal to follow it. There is an actual name for this defense. It is called the Nuremburg Defense — the defense offered by German military personnel at trials following World War II, when they claimed they were simply following orders. This did not work out very well for them, as all who tried to use this defense were found guilty.
This is not a simple issue. We have a city that time and time again has demonstrated a willingness to throw us under the bus, a city that will sacrifice us to seek the approval of many groups and interests. Law enforcement officers across the country are confronted with this very real problem in these times. Hopefully, this too shall pass. But for now, be careful and seek solace in the fact that your union, your fellow offi- cers and a few bosses will stand with you.
TIM GRACE
18 CHICAGO LODGE 7 ■ JUNE 2020