The Power of the State vs. the Power of Love

by Robert Higgs on October 30, 2013 ~ Mises.org

For thousands of years, philosophers have argued that society must invest great power in the rulers because only great power can hold back the forces of evil — violence, plunder, and disorder. They have often conceded, however, that this solution has a down side: powerful rulers may themselves resort to violence and plunder.

In any event, society’s positive, productive forces always resided within the people themselves. All the genuine peace, cooperation, production, and order the society enjoyed sprang from them. So the state was never a solution to a problem the people could not solve for themselves, but itself a problem masquerading as the only solution to problems whose real solutions already lay close at hand, if they existed at all.

Given that wealth destruction undermines social well-being, how did it come to pass that the state — an institution based on violence and plunder — has overridden peaceful cooperation as the dominant factor in social life virtually everywhere on earth? Although this simple question requires a complex answer, we know that the rulers have used fear — of themselves and of other dangers known and unknown — to terrorize the people and convince them that they are incapable of providing security, that only the state can provide it. First through fear alone, then through complementary religion, and ultimately through complementary ideology, the people’s convictions were twisted into forms compatible with the rulers, the priest/ideologists, and the military elite’s living at the expense of the plundered masses, who were kept in line more by false beliefs than by raw force.

So it remains today. Is any feasible alternative conceivable?

Hardheaded people mock the idea that “love is the answer” to the people’s dire situation. They insist that evil forces and evil men are afoot in the world, men who care nothing for love and seek only vile ends, and that such malevolence can be fended off effectively only by meeting it with adequate force and violence. Thus does the perceived “security gap” fuel a race to the bottom in which the ostensible protectors become more and more indistinguishable from the evil men who allegedly seek to hurt us. By meeting evil only with the rulers’ upward ratcheting force and violence and their upward ratcheting suppression of our liberties and our means of self-protection, the ultimate goal — a social environment of real security and peaceful cooperation — recedes ever farther from realization.

Jesus declared, “Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you” (Matthew 5:43-44). Of course, people — even most Christians, no doubt — will say that this admonition, however lovely it might sound in a sermon, is utterly impractical, that behaving in accordance with it would leave us entirely at the mercy of those who seek to harm us. Perhaps it would.

Yet, here we are, inhabiting a world divided in countless ways by mutual misunderstandings, hatreds, and yearnings for vengeance. Because each society is subject to a state whose own interests are served by keeping this vicious pot boiling, we have no prospect of ever breaking out of the endless cycle of evil, violence, and retribution. In the process, the whole world forgoes the immense blessings that would flow from mutual cooperation, peace, and tolerance.

Individuals may rest their personal lives on love and thereby find the peace that seemingly evades all philosophical and sociological understanding of social affairs. Whatever wise men and women may know and practice in their own lives, however, essentially Hobbesian analysis holds the great thinkers in its iron grip, and those who recommend love are dismissed as muddle-headed and simplistic. Yet, to repeat, here we are, inhabiting a world made no better by our hanging on the words of the greatest political philosophers, statesmen, and international-relations experts. In their view, the state is a given, and their analyses take for granted its nature and conduct. Perhaps this point of departure is their root error: that they readily accept what most needs to be challenged.

So long as the state exists, with its intrinsic violence, plunder, and insolence, and we seek solutions to our pressing social problems through it or in its dark shadow, we are doomed not to second-best or third-best solutions, but to make-believe solutions that are, at best, momentary rest stops on the road to our worsening degradation and ultimate demise. Destruction is what states do (or threaten to do); it is the nature of the beast. As technological changes augment state powers, the culmination of this terrible sequence may be our absolute annihilation.

Love turns us in the opposite direction. It seeks to build up, whereas the state seeks to overawe and kill in the service of the self-interested elites who control it at the expense of the people at large. Love has no need to flex violent muscles or seek vengeance time and again. Love intends the good of the other for its own sake, not as a means toward the end of one’s own aggrandizement. Love is patient and long-suffering; power is impatient and easily provoked.

Love does not keep score; international rivals do so in numerous dimensions. Love leads to inner peace and cordial relations with others, whereas the state remains always at war, if not against other states, then certainly against its own subjects, on whom it preys ceaselessly in order to sustain itself and to gratify the rulers’ insatiable ambitions for personal acclaim and unchecked power.

Hardheaded people will say, of course, that in socio-political life, love just doesn’t work. In sharp contrast, they insist, power in the hands of the rulers does work. And indeed it does. That’s the trouble.

Just say no (to the police)

INTRO

One of the main powers that law enforcement officers carry is the power to intimidate citizens into voluntarily giving up their rights. Police are trained to believe in their authority and trained to perform their interactions with private citizens with confidence. It is their job to deal with problems and they learn to manage uncomfortable situations through strength. Most people, when confronted by police get a mild panic reaction, become anxious, and try to do whatever they can to minimize the time spent with the officer. Because of the imbalance of power between citizen and officer, when a law enforcement officer makes a strongly worded request, most people consent without realizing that they are giving up constitutional protections against improper meddling by the State in the private affairs of citizens.

A common situation is that of the traffic stop. A person is pulled over for a real or perceived vehicle violation and, after checking the driver's license and registration, the officer asks the driver if they have any weapons or illegal drugs in their car. When the citizen answers "no", the police officer asks (in the strongest language he can without demanding) to check that for himself. "Then you wouldn't mind if I took a look in your trunk." or "Why don't you step out of your car." Most people acquiesce to the 'requests' because they don't realize they have the right to say no.



WHY YOU HAVE TO SAY "NO" CLEARLY

The Federal Supreme Court has ruled that as long as the police do not forcean individual to do something, the individual is acting voluntarily, even if a normal person would feel very intimidated and would not reasonably feel they could say no. (see Florida v. Bostick, 1991) If you do what a policeman tells you to do before you are arrested, you are 'voluntarily' complying with their 'requests'.

Unfortunately police will often try to push citizens to accept a search, to the point of ignoring when you say "no". Its important to say very clearly "I do not consent to a warrantless search." Or "This is a private event/home/place, you may not enter without a warrant." Don't simply answer questions about searches with a simple "yes" or "no". See this case where drug police asked a confusing question and claimed they misunderstand the answer "yes" to mean they could search (October 24, 2000. Gregg County CODE officers, defendant Dockens, judge Steger, federal court, east district Texas).

Until you say "No, I don't think I'd like to do that." you are cooperating as a peer with the law enforcement officer who is trying to make the world safer. When you say "no" to a request by a police officer, you are asserting your lawful rights as a private citizen. If the officer demands you comply, then in most cases you have little choice. Usually, however, the officer is likely to try to convince you to comply voluntarily. Until and unless you say "no" and stick to it, the police don't even need any real authority to tell you what to do.



WHAT A POLICEMAN CAN MAKE YOU DO

What a Law Enforcement Officer (LEO) can demand of a citizen depends heavily on the context of the order. Most generally, police are allowed by the courts to act as any reasonable private citizen would. They may ask questions, look through windows that they happen to be near, walk or drive in public areas, etc. Without a warrant or any suspicion of illegal activity, they are allowed to interact with other citizens, but they have a limited amount of authority to demand compliance, search, or detain people or things.

In highly volatile or dangerous situations, a LEO's authority to require compliance is much higher than in non-threatening contexts. The Supreme Court has ruled (with Terry v. Ohio being one of the primary cases) that the police are allowed to protect themselves from potentially dangerous people or situations. Under the umbrella of "concern for safety" or "search for weapons" the police have wide latitude to do what they want and to order citizens to comply with their demands.

The Terry v. Ohio case created the "weapons search", "terry search", or "terry pat" exception to the 4th Amendment 'probable cause requirement' for searches. The court ruled that if a police officer "[has] reasonable cause to believe that [someone] might be armed" they can require they submit to a quick patdown. What this has meant is that it is now standard practice to pat down anyone that a LEO wants to, without the need for arrest, probable cause, or even suspicion of a crime.

Many police use weapons pats as a way to intimidate and harass citizens, since it is a power the courts have allowed them to use with little justification. Often a LEO will find something during their patdown which is clearly not a weapon which they would like to see, but this is beyond their Court-approved authority (see below ).

Also under the 'concern for safety' umbrella, police are given wide latitude by courts to ask individuals to comply with simple non-intrusive commands such as "stand over there" or "wait here for a moment", but the line between order and request becomes very fuzzy when an officer starts telling people where to go unless the situation is volatile / dangerous. There are many stories of two (or more) individuals confronted by police ( one example ) whom the police intentionally separate to try to intimidate or to compare stories. This is generally a 'fishing' maneuver which would not fall under the 'concern for safety' umbrella. ( see below )

During a stop for a traffic violation, police have the power to demand a proper driver's license and other state-required documentation (registration, insurance). In most [ed-all?] states they also have the power to demand sobriety tests [ed - do they need reasonable suspicion of intoxication ?]. The courts have also given police the power to frisk a driver based on the Terry v. Ohio decision (the police should have some reason to think there is danger) and some decisions have even allowed an officer (with no suspicion or cause) to search the area around the driver's seat. [ed-citation for this?]

When a private, law abiding citizen encounters police, the amount of intrusion a Law Enforcement Officer is allowed to demand is limited. Some areas have laws against "disobeying a police officer" or "obstructing an officer from their duties", but the bounds of what officers can reasonably require someone not suspected of any other criminal activity in a peaceful situation have not been clearly drawn by the courts. If someone interferes with a police officer engaged in an arrest or investigation, police tend to have very little patience and will quickly threaten or implement detainment or arrest. Generally, courts give police wide latitude in executing their duties and disobeying a "reasonable" direct order from an officer could be prosecuted in most jurisdictions.

As an encounter proceeds, the police gather data that they can use to formulate 'reasonable, articulable suspicion' or (stronger) 'probable cause' that the individual has contraband or is involved in a crime. As the level of suspicion rises, so does the LEO's authority to intrude into a person's affairs. Once the level rises to 'probable cause' to believe that there is contraband in a vehicle, the Supreme Court has made some very disturbing decisions allowing the police broad power to search in certain cases, including the power to search closed containers without a warrant. (see United States v. Ross, 456 U.S. 798 (1982) )

In a recent decision (Wyoming v. Houghton, April 1999), the Supreme Court ruled that even passengers' belongings, if left in the car, may be searched thoroughly if the driver is suspected of a crime.

In most states, you are not required to identify yourself or show the police your ID (unless you are in a vehicle). We have been unable to confirm that in Nevada that police try to charge people with obstruction of justice for people who refuse to identify themselves to police. However, if you choose to identify yourself, you are required to tell the truth. It is a crime to lie to federal police agents and it is a crime to give false identification to police in many areas [ed- find a cite for this?].

The Supreme Court has said: "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146 (1972).

If you want to avoid long and unpleasant interactions with police, do not give them any reasons to suspect you of criminal activity. Courteously decline to participate in 'fishing expeditions' or any other actions you do not wish to perform.

Police may search you 'incident to arrest': after or while arresting someone, police are allowed to search the body of the person being arrested. Recent decisions by the Supreme Court have also allowed the police to do exhaustive searches of any vehicle the arrestee was in and any containers therein. The Supreme Court held "that the police may examine the contents of any open or closed container found within the passenger compartment, 'for if the passenger compartment is within the reach of the arrestee, so will containers in it be within his reach.'" 453 U.S., at 460 (footnote omitted). See also Michigan v. Summers, 452 U.S. 692, 702 (1981).

In Pennsylvania v. Mimms, 434 U.S. 106 (1977), the Supreme Court "held that police Officers may order persons out of [463 U.S. 1032, 1048] an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous."



WHAT A POLICEMAN CAN NOT MAKE YOU DO

• Police are not allowed to frisk for anything except weapons. If, during a weapons pat, an officer discovers something 'suspicious' you don't have to show it to them.
  
  Although the police have been given a lot of leeway to 'check for weapons', the Supreme Court has ruled (in the key decision Minnesota v Dickerson, 1993) that a weapons search may not be used as a pretext for a more general search. In Minnesota v Dickerson, a man was stopped coming out of a 'notorious crack house' and was patted down in a 'Terry Stop'. The officer noticed something in the man's pocket which he said 'felt to be a lump of crack cocaine in cellophane'. He reached in the defendant's pocket and found some crack-cocaine. The Supreme Court ruled that in order to determine whether the item was crack or not required a further, unwarranted search was necessary which was not acceptable by 4th Amendment standards.
  
• Police are not allowed to search everyone (see Ybarra v. Illinois, 444 U.S. 85 (1979). In Ybarra v. Illinois, a man was patted down in a bar where the police were arresting a bar owner for selling heroin. An officer identified "a cigarette pack with objects in it" in the man's pocket during the pat down and decided to search Ybarra. The High Court ruled that the officer overstepped his authority by searching everyone in the bar, even though they had a warrant to arrest the bartender and search the bar for evidence of drug sales.
  
  A common situation where police attempt to search many individuals without probable cause is a raided party. Sometimes police tell people to 'empty your pockets' or they pat everyone down as they are leaving or they target a few people based on appearance for a full blown search. Most raids on parties are done without a judge-issued warrant and are based on noise complaints, city ordainances about event sizes, etc. In these cases, most searches will be citizens 'voluntarily' complying with requests except in the case of violence, extreme intoxication, or obvious criminal activity. Be polite and considerate of the difficult job the LEO's have, but do not consent to any warrantless search and do not offer information to the police regarding any criminal activity they suspect you of.
  

HOW TO SAY NO

So, when a policeman says "Empty your pockets for me?" or "Why don't you step over here for a moment?" What does a reasonable, law abiding citizen say if s/he doesn't want to? Unfortunately there may be no simple answer to this. Because of the nature of most police-citizen interactions, tensions can be high and LEO's may interpret any dissent as hostility or 'suspicious behaviour'.

1. Stay Calm. Speak calmly and slowly and don't be surprised if the officer becomes irritated, angry, or belligerent. Move slowly.
2. Ask Questions. One way to Say No is to ask questions in return: "Is that a request or an order?" "Am I under arrest?" "Am I free to go?" "Why do you want me to *whatever*?" "Am I a suspect in a crime?"
3. Say No. Another way to Say No is to very clearly say no: "No, I would like to leave." "No, I do not consent to any warrantless searches." "You do not have my permission to search me / my car / my belongings."
4. Defuse Tensions. Do everything you can to defuse the tensions and seem peaceful. If an LEO thinks you might be dangerous, the courts have ruled that they have a greater authority to force you to comply.
5. Do not Resist. Do not Argue with a Cop. Do not Touch a cop. Don't Run. Don't complain or threaten an officer legally.
6. Comply when Required. Knowing when you are required to comply can be difficult (see What You Must Do and What You Don't Have to Do ) The moment an LEO pulls a gun, do what they say. If they make you do something through force, your Constitutional Rights are not as important as staying healthy and alive. You can challenge the arrest in court if your rights are violated.
7. Give the Cop a Break. Remember that police have a very difficult job to do and most cops are doing their best to try to keep their communities safe. When it comes to dealing with unusual or strange individuals or confronting drug issues, officers (and many people in the world) make some bad snap judgements. But most cops think of themselves as the Good Guys, so try to let em know you're on their side.
8. Ask for a Lawyer. As soon as its clear you will be arrested, ask for a lawyer and then keep quiet. Police will try to get you to talk. Don't.

CAN SAYING NO GET ME IN MORE TROUBLE?

The short answer to this is, of course, yes and no. A lot is dependent on your rapport with the individual officer(s). Saying No to a police officer should be done gently to avoid enraging them so you don't get beaten up. Saying No to a warrantless search may cause a police officer to harass you further to try to get you to comply. Saying No, however, is always the best idea when it gets to the point of arrest and prosecution. It is never in your interest to cooperate with the police in helping them collect evidence against you. If you do say No and a policeman searches anyway, evidence can sometimes be suppressed (thrown out). If you agree to a search, you have no grounds to dispute the evidence.

It is common to have an officer 'ask' forcefully first and if the suspect gives any indication of saying No, they threaten to arrest them and take them to the station. They say things like "if you don't open your trunk/pocket/whatever for me, I can arrest you and we can open it up down at the station". Often officers will imply that if the suspect cooperates, the cop will go easier on them. While it is true that a police officer controls whether you are arrested or not, very few police officers will overlook anything illegal they find in a search (including very small amounts of cannabis).