Public Comment

The Police and the Right to Due Process

Steve Martinot
Saturday May 04, 2019 - 04:20:00 PM


Rights, in an exploitative and impoverishing society such as ours in the US, are the front line against police arbitrarily and a police state.

There are two kinds of rights. There are individual rights, those understood as "inalienable" or "natural" rights that persons have as human. The main ones are listed in the First Amendment.

And there are social rights, those that provide for necessary equalization between individuals and the institutionalities of government. They are granted constitutionally, and can be withheld (wrongly) by institutions. The most essential of these social rights is due process. “No person shall be deprived of life, liberty, or property without due process of law” (Fifth Amendment). 

There are two major aspects of “due process.” The first is that it occurs before there is deprivation of life, liberty, or property. What might occur after such deprivation would not be due process, but rather appeal, made against having already been deprived. To grasp the seriousness of the priority of due process, consider the deprivation of life. After a person has been shot and killed by a cop, there is no possibility of appeal. Therefore, any due process concerning deprivation of life, and thus also liberty and property, must occur before there is a process of deprivation. 

Secondly, “due process” constitutes an equalization between individuals and social institutions. Social institutions, like the police, or bureaucracies, or corporations, etc., because they wield greater power than individuals, and can thus act arbitrarily toward persons, must be reduced to a level in which individuals can have equity in the event of any dispute. That is, there must be a process wherein an individual to be deprived of anything would have equal power and standing as the institution that would commit the deprivation. “Due process” is what provides for an individual having the right, and the equal power, to enter into dialogue or debate or argument with an institution on the justice or injustice of a proposed or impending deprivation. 

All democratic ethics and procedures depend on the right to due process. To withhold due process is to violate the sanctity of the individual (against institutional power), which is inimical to democracy. 

Today, in the US, “due process” is almost universally withheld. In other words, a democratic ethics is almost universally ignored or violated in the US.  

Examples: A cop stops a person on the street, and the person asks why he is being stopped. If the cop then handcuffs the person, as happens often to people who question a cop (especially black people), that cop is depriving the individual of liberty without due process. Though the cop represents governmental power, while the person is exercising his right to question, the cop is creating a dispute in which there is deprivation of liberty, and for which due process is required. 

When a cop, pursuant to a city ordinance against sitting on the sidewalk, approaches a homeless person, commands the person to move, and seizes the person’s property, that cop is depriving the person of liberty and property without due process. Should a store-owner complain about a homeless person blocking access to the store, a cop could have the store-owner and the homeless person present arguments for their respective sides, and make a decision according to law. In such a case, there would have been due process with respect to the person moving himself and his belongings to another place. 

We are not speaking of criminality here, but only of offenses, the possible violation of rules, or disobedience to police commands. Under criminal law, if a cop sees a crime in progress, he can stop it by arresting the criminal. 

If the cop commits a crime, such as shooting a person, or depriving a homeless person of the property he needs to withstand and survive the elements, individual civilians have no recourse to the extent due process is withheld. Only after the cop had committed such a crime would the civilian have the right to appeal. Should the elements make the homeless person fatally sick, appeal would be too late. 

Appeal is not due process. Due process is designed to prevent unwarranted or illegal deprivation. Appeal only occurs after an unwarranted or illegal deprivation has occurred.  

The nature and structure of due process  

Due process is the existence of a procedure in which a person has an opportunity to speak for themselves when threatened with deprivation of life, liberty, or property. In jurisprudent tradition, this opportunity to speak would occur before a neutral third party who had the ability to decide whether the threatened deprivation was legitimate or not, taking into account the immediate circumstances of the person and the law ostensibly in question. In general, the third party need not be a judge or legally licensed individual, but only someone agreeable to both parties. 

There are 5 structural elements to due process. 1) There is an institution (governmental or otherwise, represented by an agent) who seeks to deprive a person of their liberty or property for whatever reason (a statute, a complaint by another person, the agent’s gratuitous or arbitrary desire, etc.). 2) There is a person who opposes the commands of the institutional agent as unwarranted, illegitimate, or arbitrary. 3) A third neutral party agreeable to both sides is found who can hear both sides and decide what is just on the basis of the immediate situation and the law. 4) There is an opportunity for the two parties to enter into dialogue with each other on the basis of their social interests, their knowledge, and their social situations. 5) There is a willingness by the third party to decide on the basis of fairness, justice, and equity between the individual and the institutional agent. 

In short, due process reduces institutional power to the level of the individual human, and places the individual’s position and interests on an equal footing and in dialogue, with that of the institution. Due process constitutes, in effect, the ability of an individual to argue for their social existence, and for the properness of their actions or comportment, against any institutional demand that they act differently, or that they exist in a different way. 

“Due process” is guaranteed by Constitutional amendment (the 5th and the 14th). Any deprivation of liberty that occurs without due process is unconstitutional. If a person is commanded to do something by a cop, pursuant to a rule passed by city council, that person is constitutionally authorized to demand due process before doing it, because otherwise there would be a deprivation of liberty incurred by institutionally requiring the person to do something they did not wish to do (again, we are not talking about the commission of felonies here.)  

The nature and structure of police commands  

The police, in most cities, take it upon themselves to actively enforce city ordinances concerning resident comportment. That means, the cop tells a person what he must do (for instance, packing up and getting off a piece of public land), or else the cop will act forcefully against the person. 

If a cop gives a person a command (for instance, to fold up a tent that the person, because homeless, is living in), and forces the person to obey that command by threatening to injure the person (with a nightstick or a stun gun, etc.), or by threatening to arrest the person, or to seize their property, then the cop is establishing a particular kind of relation between himself and the person. The cop is establishing himself as a commanding officer with respect to the person who he then treats as a subordinate, as if an enlisted person in the army that gives the cop commanding officer status. 

In other words, the legitimacy of such policing actions is based on a fallacy, an assumption that the police and the person belong to a form of military organization. The fallacy does not inhabit the ordinance the cop enforces. It inhabits the nature of the commands that the cop uses to make a person obey a rule (which might be at most an offense, not a misdemeanor or a crime, but rather something for which a ticket could be issued). 

A military form of organization is at odds with traditional "civilized" relations between people in civil society. What mainly characterizes a military form of organization is that disobedience to a commanding officer’s command can be punished immediately through the use of force. When this form of relation is transferred to civil society, it is out of place. 

Civil society is not a form of military organization. To command a person to do something they are not doing voluntarily (stand up, sit down, move out of the street, fold up that tent, etc.), the cop is forcing the person to do something they had not freely decided to do. It changes the social status of the person because it changes (by assumption) the form of organization in which the person is then placed. When a cop assumes a “commanding officer” status with respect to a person, he is not only assuming a power he is not given constitutionally, but he is placing the person commanded in a form of organization in which that individual had not enlisted, and is thus placed by the cop against his wishes. 

By this act, and by the change in social organization this assumes for the person, the cop deprives the individual of liberty without due process. The cop is there to stop felonies, not to change the form of social organization in which civilians live. 

The right to “due process” is a right established by the Constitution that allows individuals to resist and oppose being placed in a military form of organization while still in civil society because it allows individuals to resist the imposition of institutional power. It is the imposition of power that is the deprivation of liberty. A "command," which constitutes a deprivation of liberty based upon the imposition of a military form of organization without due process, means that a cop’s insistence on obedience in a civil situation (which includes notification of an offense) is in violation of the Constitution. 

The military form of organization is inherently and imminently anti-democratic. Any pro-democratic stance or movement or desire must stand in opposition to the military form of organization for civil society. 

In short, in a democracy, a cop can only tell a person (not involved in a felony) what to do, but cannot follow it up with a threat of force without depriving the person of their liberty without due process, and without being destructive of the democracy that cop may think he is upholding.  

How could due process be facilitated in a fair and Constitutional manner?  

Suppose a cop sees a person living in a tent on public land at the border of an industrial and a residential area, and decides the tent violates a city ordinance. How would due process be facilitated in such a situation? 

1- The institutional agent (cop) would have to have in hand both a statement of the rule that he thought he was enforcing and the rationale for applying that rule to the particular situation. And the person would have the right to argue against the cop and for remaining where he was, in the presence of others. 

2- If there was a complainant (for instance, a store-owner in the vicinity of the homeless person’s tent), then that complainant could be substituted for the institutional agent in addressing the homeless person about his tent. 

3- In both cases, a neutral third party would have to be found, acceptable to both the homeless person and the institutional agent (or complainant), who could then hear both sides. The institutional agent (cop) could only play the role of neutral party is that were acceptable to both parties to a complaint. 

4- A dialogue would then ensue, presided over by the neutral third party, in which each side – complainant or cop on one side, and homeless person on the other – would then be able to offer reasons why the homeless person should or need not move his tent and belongings – subject to a decision made by the neutral third party.  

This process would bring democracy to the enforcement of laws and rules, to insure that no injustice is committed in the name of the law. It would bring about involvement of proximate communities in the problems that arise between neighborhood residents and the homeless. It would overcome some of the isolation and alienation that we all feel to some extent in being separated from each other by the law. 

In general, in all of its attacks and harassments against the homeless, the city of Berkeley has been in violation of the US Constitution because they have withheld due process.