Deputies confront mom for allowing her child to play with other kids

As a retired police officer and supporter and defender of the U.S. Constitution, I found watching the video of two young Wisconsin deputy sheriffs confronting a mom for allegedly violating the governor’s stay-at-home order uncomfortable. All officers may use discretion, especially for low-level offenses. During my career, I tended to use my discretion to warn rather than cite laws I considered to be of a nanny state.

However, as long as the people allowed those laws to remain on the books, I never criticized my fellow officers who enforced them and never failed to provide backup while they were doing it. In this case, I’m not sure what directions the sheriff has given his or her deputies—in other words, how much discretion they have.

The first deputy to speak acted as if he had discretion. He notifies a mother she is violating the stay-at-home order by allowing her daughter to play with her friends at their homes. He offers to explain the governor’s order to her if she would like. She tells him another deputy had been there two weeks ago and said he would not enforce the order. Still, he asked if she understood, and she acknowledged she did. Now, outside of appearing condescending, he told her she could not have her daughter going to other kids’ homes.

The mom asked if there was anything else. The male deputy said, “nope,” gave the mom a thumbs up, and inched into the background and toward his patrol car. The contact seemed to be over as far as he was concerned.

But for some reason, the female deputy, which had to be confusing for the mom, said there was something else, now asking for mom’s name. The first deputy had already called the mom by her name when introducing himself.

While the mom should have cooperated and maybe complained later, she understandably wondered about the “legal” action the deputy was taking against her. She asked the deputy to explain what law she was violating. The deputy did not explain. That’s probably because there is no actual legislatively enacted “law” preventing a mom from allowing her child to play with another child.

Then the male deputy seems to urge his partner to end the contact. The female deputy tells the mom she will report she was “uncooperative.” Again, this interaction made me uncomfortable, but I just can’t fault anyone in this situation except for those political leaders putting these officers—and that mom—in this position.

There are a few things at play here. First, there is the lack of moral authority to impose such restrictions on the public because the enforcement seems to be arbitrary. A woman can get an abortion, but she can’t get a cavity filled or a knee replaced. A man can’t get his hair cut, but he can bring his poodle, Tootsie, into a pet salon for a trim. In at least one state, Juan can go fishing in his rowboat, but Sarah can’t go fishing in her motorboat.

It’s easy and perhaps tempting to ascribe nefarious motives to the deputies. Cops are such easy targets because they’re the ones our leaders use to enforce their laws—close up, both good and bad laws. But what if the deputies truly believe they are “saving lives” by enforcing the governor’s edicts? Perhaps they are just following their boss’ orders. Either way, during a state of emergency, how to handle these situations can blur for cops.

One officer may come to his or her own conclusion that he or she simply cannot in good conscience enforce the governor’s orders that essentially suspend constitutional rights. Another officer may not have reached that constitutional line, yet.

A state of emergency for health reasons makes this very difficult for cops. For example, if the government was to order a gun confiscation during a state of emergency like what happened in New Orleans after Hurricane Katrina, I would not have obeyed that unconstitutional order. Possessing a firearm during a natural disaster or manmade (communist Chinese-made) health crisis is crucial and not at all related to spreading disease.

However, stopping people from congregating in close contact, when the state of emergency pertains to a contagious disease, has an inescapable logic to it—at least on paper. Cops may be reluctant to enforce such orders but may simply have to wait for a court to rule on the legality of a governor’s restrictions. The bottom line here is no governor, mayor, police chief, or sheriff should ever put law enforcement officers in this position.

To make matters even more confusing, some sheriffs are enforcing the governor’s stay-at-home orders while others are not, even within the same state. I’m happy to say the sheriff of my county is refusing to enforce the governor’s unconstitutional edicts. I’m glad about that, but how can this not confuse cops trying to do the right thing? In fact, in this Wisconsin play-date case, the mom said another deputy had told her the sheriff’s office was not enforcing the order.

Showing no sympathy for the mom’s position, the male deputy had said, “We’re about to.” Now, that’s just her word about what the other deputy had said on the previous occasion, but these days it rings true.

This happens when you “temporarily suspend” a constitution that cannot be suspended—government overreach and chaos ensue. What about “unalienable” is so hard to understand? And even if courts have sometimes ruled governors have extraordinary powers during a state of emergency, that does not mean those rulings are constitutional.

We have to be suspicious whenever a court ruling obfuscates the plain meaning of the Constitution. Obviously, these “temporary orders” do just that. The Bill of Rights has no fine print delineating abridging Americans’ rights. Of course, many people will bristle at such precedent-setting restrictions on their behavior. I am one of them.

Still, the Wisconsin mom may have an ally in U.S. Attorney General Bill Barr. The AG has thrown his weight into the issue as the top law enforcer in the country, second only to the president. According to the Washington Times, “Attorney General William P. Barr on Monday ordered federal prosecutors across the country to consider legal action against governors if their efforts to stop the spread of the new coronavirus infringe on Americans’ civil rights.”

In a memo issued to 93 U.S. attorneys, AG Barr wrote that the DOJ “may have an obligation to address that overreach in federal court.” The attorney general was very clear in his overture to make sure the Constitution is being upheld. He also wrote, “Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public. But the Constitution is not suspended in times of crisis.”

Allow me to repeat that critical last line: “The Constitution is not suspended in times of crises.”