Is it a cops duty...

[Tgace]

...to arrest someone for every violation of a law he/she comes across?

Here in NY there is much division over the NY SafeAct. Many LEO's, including the Sheriff of my County are against it. The Sheriff has gone so far as to have gone on record stating he will not enforce it.

http://www.wivb.com/dpp/news/erie/sheriff-cuomo-at-odds-over-safe-act

Which has supporters of the law screaming that it's the Sheriffs duty to enforce ALL laws on the books.

Is it?

Adultry is "on the books":

http://law.onecle.com/new-york/penal/PEN0255.17_255.17.html

§ 255.17 Adultery.

A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.

Adultery is a class B misdemeanor.

Should he have "no choice" but to enforce that one too?

What about the DA? Is he obligated to prosecute EVERY violation of the law? Obviously not:

http://gunssavelives.net/blog/gun-l...rested-under-ny-safe-act-for-2-extra-bullets/

My opinion? I think that if there is a VICTIM there needs to be an arrest. If someone is robbed, raped, stolen from, injured, harassed...or if someone is doing something reckless that could result in the same..than there HAS to be an arrest regardless of the cops opinion of the victim or offender. If one drug dealer kills another you HAVE to work a murder case and make an arrest.

If a cop comes across a violation like 2 extra rounds in an otherwise law abiding citizens pistol magazine? Someone with no criminal history seen target shooting with a rifle having a (gasp!!) flash hider and bayonet lug? Or yes...even simple user level drug possession? I can see some discretion being allowed...

What this boils down to is people wanting THEIR laws enforced at all times but allowing a "pass" on others. I wonder how many of these "HE HAS TO ENFORCE THAT" types would be saying the same thing if the Sheriff said he would no longer charge simple marijuana possession anymore???

 

[Steve]

I think that there's a middle ground between absolute, zero tolerance enforcement of every law and going on record as saying you will not enforce a law. We don't have the money or staffing in most areas to blanket the county with sufficient police officers that would allow every violation to be cited. It's unreasonable to believe that we could enforce every single law, every single time.

So, we should put our money where it will do the most good, allocating resources where we have the greatest need. But making a judgement call about a marijuana possession is not the same as a Sheriff stating that, as far as he is concerned, the law no longer applies in his county. One is a reasonable and understandable reality. The other is an abuse of power and takes onto the Sheriff the authority that only Congress lawfully holds.

I'm all for trusting our cops to be reasonable, and I think we have way too many stupid, unenforceable laws on our books. I'm also for ending prohibition. But I'd be against any local Sheriff or Police Chief who said, "Weed's as good as legal in my county/city, because I disagree with the law and won't enforce it."

 

[Tgace]

Whats your opinion on the Adultry law? We never charge it..

Is a silent but implicit "we wont enforce that law" different from a formal statement of the same?

 

[DennisBreene]

Adultery is not considered a"fault" in divorce proceedings in most states. Another indicator that legally the state considers it out of it's realm of concern.

 

[cdunn]

Well, that depends. Your adultery law may still be on the books, but Lawrence v. Texas probably invalidated it. No really knows, though, until there's a test trial. You probably do have a duty to make a best-faith effort at enforcement.

 

[Tgace]

Hypothetical...

I arrest someone with an illegal handgun and he has more than 7 rounds in the magazine. I charge the "illegal possession of a weapon" but do not charge the SafeAct section for the number of rounds in the magazine...am I wrong? Am I obligated to charge every single possible section of law?

 

[Tgace]

Adultery is not considered a"fault" in divorce proceedings in most states. Another indicator that legally the state considers it out of it's realm of concern.

Actually...it is a "fault" here in NY.

http://cityroom.blogs.nytimes.com/2008/03/21/is-adultery-a-crime-in-new-york/

Several City Room readers this week have pointed out that adultery is still, technically, a crime in New York State.
Section 255.17 of the state penal law states, “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is a class B misdemeanor.” A class B misdemeanor is punishable by up to 90 days in jail or a $500 fine.

In reality, of course, the law is rarely enforced. About a dozen people have been charged with adultery since the early 1970s, most of them upstate. (Most of the charges were dismissed, or apparently were dropped after the defendants pleaded guilty to other charges.)

While no one is really at risk of being jailed for adultery, adultery still has tremendous significance in family law, said Alton L. Abramowitz, another divorce lawyer.

Adultery is one of three principal grounds for divorce in New York State, along with abandonment for a period of more than a year (or abandonment in the form of refusal to have sexual relations) and cruel and inhuman treatment, which includes both mental and physical cruelty.

 

[Tgace]

The point Im trying to get at is that the longer I work in this field the more apparent it becomes that laws become "dead" without court action through 3 main routes.

Cops don't arrest for it.

Prosecutors won't prosecute it.

Juries won't convict for it.

Which happens in various configurations all the time......the only real difference in this Sheriffs case as I see it is that he's outright saying it when the law's ink is still wet.

Not that I'm implying that any of this is right or wrong..it just IS.

 

[Steve]

Whats your opinion on the Adultry law? We never charge it..

Is a silent but implicit "we wont enforce that law" different from a formal statement of the same?

I think that it's along the lines of "Don't Ask/Don't Tell" in that it's a pretty good indication that the law needs to be rescinded and probably a necessary first step. We are seeing this with marijuana in many States, for example. But a silent implication is not a vocal declaration. In other words, I would have the same problem if a Sheriff went on the news and said, "In my county, we will not enforce this law." Whatever that law might be.

On the other hand, we need to clean things up a little bit and rescind laws that are ineffective or unenforceable. But that's a different issue.

 

[Steve]

Hypothetical...

I arrest someone with an illegal handgun and he has more than 7 rounds in the magazine. I charge the "illegal possession of a weapon" but do not charge the SafeAct section for the number of rounds in the magazine...am I wrong? Am I obligated to charge every single possible section of law?

I would say that you are not obligated to charge every single possible section of law. As I said in my first post, isn't there a middle ground between this zero tolerance position you are framing and the other extreme, which is for a public servant to essentially abandon his duty to enforce the law?

 

[Tgace]

Is not enforcing A law the same as not enforcing the law?

I seem to recall getting a number of "thanks" on a post here when I mentioned that I don't arrest ALL kids I find with a joint. Am I not enforcing the law when I do that?

Just to be clear I'm not implying that I personally refuse to enforce the SafeAct...if I come across an instance where someone "needs" to be locked up and all I have is an extra round in a magazine thats one thing. Charging it against against some clean cut/law abiding guy as the only offense? Well....

 

[Steve]

Is not enforcing A law the same as not enforcing the law?

I seem to recall getting a number of "thanks" on a post here when I mentioned that I don't arrest ALL kids I find with a joint. Am I not enforcing the law when I do that?

Just to be clear I'm not implying that I personally refuse to enforce the SafeAct...if I come across an instance where someone "needs" to be locked up and all I have is an extra round in a magazine thats one thing. Charging it against against some clean cut/law abiding guy as the only offense? Well....

Let me try saying it a different way. I think cops should have some latitude to make decisions on the ground, so to speak. And I'm glad that you have that leeway.

But that is different from a formal, institutional policy of non-compliance. Essentially, in my opinion, when an entire police organization formally declares that they will not enforce some laws and will enforce others, they have essentially gone rogue.

 

[Drasken]

They scream that cops must enforce all laws, but I wonder if they'd say the same thing if pulled over and a cop tells them "Normally I would only give you a warning your tail light is out. But I have to enforce all laws so I am writing you a ticket for driving with faulty equipment"

Personally I think that it is good a cop can use their judgement. Otherwise every cop would be a hard *** and people would hate it.

 

[billc]

I think outside of your being too busy and having to make a decision of arresting someone for having more than 7 bullets vs. letting him go to respond to another call then the you should arrest him.

Cops don't arrest for it.

Prosecutors won't prosecute it.

Juries won't convict for it.

The only valid point of letting someone go for a stupid law would be the jury. If the law is on the books, a good faith effort needs to be made to enforce it, then leave it up to the jury, and the voters to correct it.

I remember when Walter Williams, a PH.D. in economics filled in for Rush, he spoke to the jury issue and here is a quote I found by him on the issue...

[SIZE=+1]I was summoned for jury duty some years ago, and during voir dire, the attorney asked me whether I could obey the judge's instructions. I answered, "It all depends upon what those instructions are." Irritatingly, the judge asked me to explain myself. I explained that if I were on a jury back in the 1850s, and a person was on trial for violating the Fugitive Slave Act by assisting a runaway slave, I would vote for acquittal regardless of the judge's instructions. The reason is that slavery is unjust and any law supporting it is unjust. Needless to say, I was dismissed from jury duty.[/SIZE]

Walter Williams, 11 July 2007

 

[billc]

Here is an example...

http://legalinsurrection.com/2013/0...osecute-man-for-having-9-bullets-in-magazine/

But Dean will not be prosecuted (h/t GunPoliticsNY):

The Columbia County District Attorney is making good on a promise not to prosecute a man arrested under the SAFE Act.
DA Paul Czajka told NewsChannel 13 he would not prosecute Gregory Dean Jr.
Dean was pulled over earlier this month after police say the light over his license plate was out.
Police say he also had a gun in his car.
While they say it was possessed legally, it had nine rounds of ammunition, which exceeds the state’s new limit of seven rounds.
​

Czaika said he might prosecute others under the SAFE Act, saying each case would be judged on the merits, and he denied taking a sweeping stand against the law.
Nonetheless, the arbitrary designation of 7 bullets in a 10-round magazine as a legal threshold demonstrates the absurdity of the law as applied in real life.

 

[Bob Hubbard]

...to arrest someone for every violation of a law he/she comes across?

Yes. Also, all cops should be required to know the -entire- legal code, and should be held liable for all incidences where they make a mistake.


I look forward to my WNY law enforcement pulling people over and citing them for NOT dismantling their cars at intersections and firing in to the air to alert horses of their presence.





The alternative is to trust officers judgement and remove the thousands of outdated laws still on the books.

 

[arnisador]

I see a difference between allowing a particular LEO professional judgment--I'll let this one pass--on the one hand, and nullification at the organizational level--we're having a work stoppage on a particular law--on the other hand. The former is beneficial, the latter undermines the legislative process. This does happen at the federal level when the pres. declines to enforce (part of) a new law, but I see that as a different, balance-of-powers issue. The police are not there as a check and/or balance on the state legislature. Adultery is a red herring: No reasonable D.A. would prosecute it today (though I think one recently did try in VA).

 

[DennisBreene]

Actually...it is a "fault" here in NY.

http://cityroom.blogs.nytimes.com/2008/03/21/is-adultery-a-crime-in-new-york/

For the record; I said in most states.

 

[DennisBreene]

Yes. Also, all cops should be required to know the -entire- legal code, and should be held liable for all incidences where they make a mistake.


I look forward to my WNY law enforcement pulling people over and citing them for NOT dismantling their cars at intersections and firing in to the air to alert horses of their presence.




The alternative is to trust officers judgement and remove the thousands of outdated laws still on the books.

I believe the same law was on the books in Virginia years ago. I always wanted to try that to see what the response would be.

 

[ballen0351]

I see a difference between allowing a particular LEO professional judgment--I'll let this one pass--on the one hand, and nullification at the organizational level--we're having a work stoppage on a particular law--on the other hand. The former is beneficial, the latter undermines the legislative process. This does happen at the federal level when the pres. declines to enforce (part of) a new law, but I see that as a different, balance-of-powers issue. The police are not there as a check and/or balance on the state legislature. Adultery is a red herring: No reasonable D.A. would prosecute it today (though I think one recently did try in VA).

The question i have is I swore an oath the the state and federal constitution if a law is passed that I believe is a violation of either I have a duty not to enforce it. In this case these departments have decided the law unconstitutional. I do it on a local level. We had a banning list for our housing authority I personally refuse to enforce it because I don't believe the city should have the power to ban a person from visiting family or friends. Eventually the courts agreed with me when the ACLU got involved and the banning list we had with 1000s of names was declared illegal and was thrown out. Same thing in my opinion as this. Or another example is the housing authority staff will call and ask us to search peoples houses for drugs or weapons and they always show me a lease that says they have the right to search an apartment at any time. I always refuse because I don't believe a lease supersedes the Constitution.