Mimesis Law
19 August 2017

Arlington, Texas Police: “Our Officer Safety Comes First…”

September 23, 2016 (Fault Lines) – This is a recurring theme among police, and for that matter, many judges: the feeling that officer safety comes first, before the rights of anyone else. So I was looking through YouTube and came across a video of some Texas Open Carry activists and their interaction with a couple of officers from the Arlington, Texas Police Department. In that video, a female officer said “our officer safety comes first” and followed it up with:

But guess what, we come first. Our safety comes first…

At that point, one of the activist, Kory Watkins, interrupted and stated that she was wrong, that

You come first? You come first? No, no, no, no. My liberty and freedom come first.

I’m not all that fond of Watkins. I find him too confrontational with the police. He is among those who have found a loophole to the open carry, where Texas law permitted the open carry of a cap-and-ball revolver if it was made before 1899 or a replica of a gun made before 1899. So Watkins and his entourage would show up to police scenes wearing Uberti and Pietta remakes of Colt 1860 Army revolvers, Colt 1861 Navy revolvers, and Remington 1858 Army revolvers. And as long as they didn’t use revolvers that held self‑contained cartridges, they were legal, and for the most part Arlington police left them alone.

I am extremely impressed with Arlington PD; they are one of the few departments in the nation that require a bachelors degree to even apply for a position with the department. Only the Lakewood, Colorado police have more officers with bachelors degrees than Arlington. The APD academy is 1,280 hours, almost twice the state requirement of 643 hours, and officers have to complete the full 32-week academy to be sworn in as an officer. A recent chief had a Ph.D. degree. A law school classmate of mine is in their academy right now, using her J.D. as a police officer. They are an outstanding police department and should be emulated in many ways.

This attitude about officer safety is not one of those ways. Watkins was exactly right when he confronted the officer. His freedom and liberty do come first, and are more important than officer safety. The officer was just dead wrong.

As has been pointed out before, many times, there is no officer safety exception to the Constitution. I understand their thought process; I used to think the same way. Seth Stoughton, a law professor and former police officer pointed out a quote from PoliceOne that I had heard and believed a variant of when I was a cop.

Remain humble and compassionate; be professional and courteous — and have a plan to kill everyone you meet.[1]

If you are in the mindset that you are at war, and you have to be prepared to fight for your life at any second, it makes sense. But as has been noted several places, there is no officer safety exception to the Constitution. Law and Order magazine stated it perfectly:

So, where does one find the officer safety exception to the Constitution? Generally speaking, it doesn’t exist. Generally, the rights of the people trump the rights of an officer to be guaranteed a safe outcome in dangerous situations. This can be an uncomfortable truth, but to ignore it is to operate in a virtual reality that only exists in one’s own mind. The truth is law enforcement is a hazardous undertaking and there is nothing that can be done to eliminate all of its physical risks.

If the choice is between feeling safer by violating someone’s Constitutional rights or taking calculated risks while honoring our oath, the pledge we made when our badges found their home on our chests is supposed to win every time.[2]

In other words, if it comes to a question of violating someone’s Constitutional rights or officer safety, we may want to look at Patel v. Texas Department of Licensing, which stated it pretty clearly.

Recently, in the landmark case Riley v. California, prosecutors, citing concerns for officer safety and preserving evidence, insisted they did not need a warrant before searching an arrested suspect’s smartphone. The Court unanimously rejected the prosecutors’ excuses, making clear that justifications for burdening constitutional rights must be concrete, non-imaginary concerns “based on actual experience.” The Court held there was no real and documented evidence that warrantless searches were necessary to protect officers.[3]

So Watkins was right in this case, the liberty of the citizen comes first.

But I can guarantee you that the officers at the scene don’t believe that. They are going to continue to believe in the First Rule of Policing until they are forced to adopt a different perspective.

It is up to us, all of us, even the ones who are too confrontational and maybe a little nutty, to force the police to acknowledge that the rights of the citizenry come first. Of course, in many cases, it is only those who are too confrontational and nutty who will stand up and say something. The rest of us just sit there and take it.

[1] Seth Stoughton, Law Enforcement’s “Warrior” Problem, 128 Harv. L. Rev. F. 225 (Apr. 10, 2015), http://harvardlawreview.org/2015/04/law-enforcements-warrior-problem/, citing John Bennett, How Command Presence Affects Your Survival, PoliceOne.com (Oct. 7, 2010), http://www.policeone.com/Officer-Safety/articles/2748139-How-command-presence-affects-your-survival.

[2] Charles Huth, Jack Colwell, and Randy Means, No “Officer Safety” Exception to the Constitution, Law and Order Magazine (Jan. 2015), http://www.hendonpub.com/law_and_order/articles/2015/01/no_officer_safety_exception_to_the_constitution.

[3] Patel v. Tex. Dep’t of Licensing, 469 S.W.3d 69, 114 (Tex. 2015), citing Riley v. California, 574 U.S. ___, 134 S. Ct. 2473 (2014).

3 Comments on this post.

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  • Scott MacQuarrie
    23 September 2016 at 1:34 pm - Reply

    The “Remain humble and compassionate; be professional and courteous…” quote is paraphrase of General James Mattis’ advice to Marines in Iraq.

    • Greg Prickett
      23 September 2016 at 3:51 pm - Reply

      It predates Mattis by at least 20 years. The first version I heard was in the early 1990s, which was “treat everyone as if they were a millionaire, but have a plan to kill them.”

      Over the years, I heard dozens of variations of that theme, including the present version.

  • Ken
    23 September 2016 at 2:37 pm - Reply

    Good post. It is the extremists that pull the center one direction then another on any subject. That should reinforce the need for the Free Speech [1st, in part] Amendment.
    I don’t like the people like Watkins either, but they serve a vital service for the rest of us.