Wednesday, April 22, 2009

Take 'em down!

That's what the Chief of Police of Milwaukee, Wisconsin says his officer will do if some one exercises their civil rights. From Clayton Cramer:
Milwaukee Police Chief Ed Flynn said he’ll continue to tell officers they can’t assume people are carrying guns legally in a city that has seen nearly 200 homicides in the past two years.

"My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we’ll put them on the ground, take the gun away and then decide whether you have a right to carry it," Flynn said. "Maybe I’ll end up with a protest of cowboys. In the meantime, I’ve got serious offenders with access to handguns. It’s irresponsible to send a message to them that if they just carry it openly no one can bother them."
The only problem with that approach is that the Wisconsin Attorney General has said that openly carrying firearms is perfectly legal in Wisconsin.
The Wisconsin Attorney-General recently issued an opinion that because of the Wisconsin Constitution's bear arms clause, the open carrying of a firearm is constitutionally protected, and by itself, does not qualify as disorderly conduct.
So, the Milwaukee PD will put people on the ground who are conducting themselves legally. That sounds like appropriate policy, right? It sounds like a good way to get sued under a 1983 civil rights action.

According to Snowflakes in Hell,
If the City of Milwaukee wants to deal with multiple federal civil rights suits, under Section 1983 of Title 42 of the United States Code, they’re welcome. In fact, I dare him to do what he’s suggesting. I would remind Cheif Ed Flynn that Section 1983 allows a plantiff to sue you personally, not just you in your official capacity, for violation of civil rights.
As I understand the federal civil rights statutes, that's right. Once the lawsuit is filed and the state says that they told the offending officer that such conduct was legal, the state can say that the Chief was acting "outside the scope of his employment" and voila, the suit becomes an action against the individual officer. That means that any awards granted are to be paid by the individual officer. The Chief is setting himself up for a multi-million dollar lawsuit that he'll be personally responsible to pay. They can attach his retirement, his paycheck, his personal assets. The Chief may wind up subsidizing someone's ammo bills for a long, long time. Any of his individual officers who have likewise been told that certain conduct is legal, may also be sued. Individual police officers are charged with obeying the laws and reporting orders that violate the civil rights of citizens. Our oath is to the Constitution and the law, not to the bureaucracy.

The "just following orders" defense died at Nuremburg.

Of course, I'm not a lawyer, but that's my cop-on-the-ground understanding of the civil rights laws.

**UPDATE** Here's the money quote from Clayton.
I do wish liberals would get past their enthusiasm for shoving people onto the ground for exercising their constitutionally protected rights. But then they wouldn't be liberals, would they?
Well, that's not absolutely correct. My best friend describes himself as a liberal, and he and I are sometimes worlds apart on social issues. He's next door to me on the gun issue, though, so not all liberals are screaming gun-banners.

**UPDATE** Instapundit logs in on the issue.
So if you see Police Chief Ed Flynn, put him on the ground, take his wallet away, and then decide whether he’s accepted any bribes that day. If, after doing that, you think the money’s his, give his wallet back. Who cares what the law says? It’s the Milwaukee Way!
And Insty is a law professor, so he knows what he's talking about.

Hat tips to everyone concerned.


Old NFO said...

Oh man... I NEED a big paycheck :-) too bad I don't live up there...sigh... And yeah, somebody WILL sue his ass!

Rivrdog said...

This is the worst FUBAR I've seen from a Police Chief since Eddie Compass ordered his boys to disarm New Orleans after Katrina.

Isn't there even ONE officer in that largish Department who knows his Constitution well enough to realize that the chief's order is Unconstitutional?