California’s recent decision to repeal a nearly 150-year-old law, the Posse Comitatus Act, has led to some general outrage. Conservative pundits, such as Graham Allen, have complained that the decision was politically motivated and directed at law enforcement. Said Allen, “That’s fine… As long as they pass a law that cops don’t have to take a call to help any of them!” He ended his tweet with a perfunctory “#BlueLivesMatter.”
What Allen and many others fail to understand is that this law is an example of criminal codes that are woefully out of date and are contrarian to existing legal precedent and American values. A “posse law” primarily takes the concept of a “duty to rescue” and makes it compulsory. Duty to rescue, however, has been struck down repeatedly by the courts, for both private citizens and public agents, including law enforcement.
As early as 1898, the case of Buch v. Amory Manufacturing Co. determined that a property owner has no legal obligation to prevent harm to a trespasser, concluding that while a moral duty to protect may exist, there is no basis for an enforceable duty. The 1907 case of the People v. Beardsely reiterated the distinction between “moral” and “legal duty,” noting, “…if such efforts should be omitted by anyone when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society.” Only a few states still have existing laws on the books, which primarily refer to a “duty to assist,” essentially meaning reporting crimes or calling 911 during emergencies.
Such precedent applies equally to law enforcement. In 1981, the case of Warren v. District of Columbia affirmed that law enforcement officials only have a general duty to serve the public, but not a specific duty to protect an individual, barring any existing special relationship. This precedent was reaffirmed as recently as 2018 when a US District Judge threw out a lawsuit filed by students from Marjory Stoneman Douglass High School. The lawsuit argued that both school officials and law enforcement, specifically Deputy Scot Peterson, failed to act, resulting in greater loss of life during a shooting. The same precedent was cited; Peterson, the Broward County Sherriff’s office, nor school officials had any legal duty to protect the students and faculty.
American’s Traditionally Reject Compulsory Service
Compulsory service has long been a point of contention in the United States. The Declaration of Independence explicitly listed, as one of many grievances towards the British Government, “[The King] has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.” This forceful conscription inevitably led to the War of 1812.
The Draft Riots during the Civil War and protests and draft-dodging during the 20th century have shown our general disregard for the power of the government to press anyone into service. There is also the Thirteenth Amendment to consider, which forbids slavery and involuntary servitude, apart from criminal punishments. The Thirteenth Amendment has been used in arguments against military conscription, and the same case could be made with regards to law enforcement or any measure of public service.
The moral arguments behind assisting those in immediate need, or even in danger, are perfectly valid and one who chooses not to act may assuredly be ostracized. But these moral arguments do not translate well into law. Every person possesses an innate right to self-preservation, which is what allows us to protect ourselves from assault. This right also prompts us to be discerning when it comes to situations that may put us in danger. For law enforcement, we may also exercise our judgment with regards to what laws we may be assisting in enforcing, much like jury nullification.
You are more than welcome to assist law enforcement. You are also more than welcome to refuse; the courts will have your back. But to suggest that such a decision would be “anti-cop,” reflects a gross misunderstanding of our history and America’s tradition of resistance to authority. So, to those who may wish that officers refuse to protect someone who has refused to assist officers as if it were a plague upon their house, the point is moot. They may not come to their aid anyway. Or yours.