DICTA. September 2021

YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law

COPS AND THE CONSTITUTION It was three o’clock on a frozen winter morning. I was warm in bed.

I was awakened by a woman’s scream. Or was I? It was probably just a dream, nothing to call the cops about, so I rolled over and closed my eyes.

Then came another scream. And another. From the apartment directly above mine.

I dialed 911. The dispatcher asked for directions. I realized that it would be difficult to find my apartment in a neighborhood of cookiecutter townhouses. So I turned on the porch light and opened the front door. Did I mention that it was freezing outside? Like ten degrees below zero? My thick robe suddenly seemed remarkably thin.

In minutes, a sheriff ’s cruiser appeared, moving fast. I flagged it down.

There was only one deputy.

He spoke briefly with me, confirming what I had heard. Then he told me to go inside. As I did so, he began to knock with his left hand on the door to the upstairs apartment. With his right hand, he undid the strap holding his gun in his holster and rested his palm on the weapon.

I checked on my four-year-old son, wondering what was going on upstairs, waiting for the sound of gunshots. As I stood there, I was struck by the contrast between what I had done that night and what the cop had done. When I called 911, I had been, at best, a good citizen. That cop was a hero. I was warm and safe. The cop had walked through the arctic night directly into harm’s way.

That incident was not my only positive interaction with law enforcement. More than thirty years ago, I watched my brother give a commencement speech at the FBI Academy. He had graduated first in his class of new Special Agents. He was one of only a handful of students in the history of the Academy to have garnered a perfect score on the Bureau’s physical fitness test. I must admit, I popped a few shirt buttons.

During his decades-long career, my brother investigated everything from midwestern street crime to the Oklahoma City bombing. He repeatedly traveled to war zones to investigate terrorism, although he could say precious little about that. Typically, I would get a call letting me know that he was “going away” for a few months. Only when he returned, with a deep tan and long beard, would he tell me where he’d been.

Perhaps it was inevitable that I would eventually teach cops about the Constitution, which I’ve done for several years now at the Center for the Constitution at James Madison’s historic home, Montpelier. One of Montpelier’s partners is—you guessed it—the FBI, which brings in police officers from around the country, and, indeed, the entire world. I’ve taught literally hundreds of law enforcement officials, from the guys who ride motorcycles to the top cops in several foreign countries. One of my students was the Chief of Police of Hong Kong.

One thing all these cops share is a treasure trove of great stories, which they tell with great relish and (ahem) colorful language. They also share a commitment to the Rule of Law. They have sworn to uphold it, to defend it, if necessary, with their lives. Consequently, they have a genuine thirst for constitutional knowledge. Several have told me, “I wish someone had explained this to me when I was starting out.”

So do I. For while I believe the work I do with Montpelier and the FBI is valuable, it would be even more effective if it happened during a cop’s initial training, before she’s out in the community.

Such early training might have prevented one particularly disturbing aspect of the January 6 Insurrection: Some members of the mob were police officers themselves. Recently, two cops from Seattle, Alexander and Caitlin Everett, who are married to one another, were fired for breaching the police barrier at the Capitol and lying about it afterward.1 Their dismissal was undoubtedly appropriate, but I have to wonder whether their participation in the Insurrection was based less upon evil intent than ignorance of their constitutional duties. Did they somehow think that what they were doing was patriotic?

Many insurrections apparently did. United States District Judge Amy Berman Jackson recently told a convicted rioter, “You called yourself and everyone else patriots, but that’s not patriotism. Patriotism is loyalty to country, loyalty to the Constitution, not loyalty to a head of state. That is the tyranny we rejected on July 4.”2 Did the Everetts and other cops in the mob share this perverse definition of patriotism? I suspect so. But it didn’t have to be that way.

Perhaps I’m biased, but, as an educator, I believe a solid grounding in the Constitution could discourage such misguided thinking in the future. If you work with cops, please give me a call, and we’ll talk about it.

Oh, and that reminds me: I love cops. Most cops are good. Most cops are heroes, including that Sheriff ’s deputy who answered my 911 call on that cold winter’s night. In case you’re wondering, he was fine.

And he was considerate enough to let me know, before he left, that the woman upstairs was fine, too. She was not screaming in fear or pain, but in the (ahem) throes of passion. So, a happy ending all around. And, no doubt, the deputy’s story has found its rightful place in the great repository of cop lore.

“2 Seattle cops who were at US Capitol in January are fired,” Associated Press, August 6, 2021, available at: https://apnews.com/article/seattle-police-reform-da9 8b06a9245d496204bf13e7b32ca90.

“Judge to Capitol riot defendant: ‘Patriotism is loyalty to country, loyalty to the Constitution,’” CNN, August 4, 2021, available at: https://www.cnn. com/2021/08/04/politics/amy-berman-jackson-capitol-riot-defendant-patriotism

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Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.

September 2021

DICTA

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