Florida should leave moral policing to Saudis

Police officers often make subjective calls. An individual carousing noisily around a street at midnight may be judged to be publicly drunk and arrested without a Breathalyzer test. A car weaving in and out of a lane will give an officer probable cause to pull over the driver. There is also the strange phenomenon of "resisting arrest without violence," an extra charge slapped onto a suspect who, arrested for other reasons, may not act as submissively as the arresting officer would like him to. A loose word or two, a little verbal frustration, is enough to cop the charge. It may well be unfair. But that's the nature of subjectivity.

The officer's judgment prevails in those gray areas of policing, but it isn't paramount. The judgment call is tested in court (if the case goes that far) and either upheld or rejected. Still, subjectivity in policing is checked by strict standards built into law. An arrest on preposterously subjective grounds -- racial profiling leads down that path, for example -- may itself lead to disciplinary action or civil charges against the overzealous or racially motivated officer. To keep such subjective calls to a minimum, police powers tend to be limited to enforcing the law as it is written rather than as police officers might wish it to be written. The rest is left up to community standards. Individuals may lodge complaints or file charges against one another, but only then do police intervene.

A proposed law in Tallahassee would change that. It would give law enforcement officers the power to arrest individuals on moral grounds. If an officer witnesses an act he or she deems offensive, the officer may proceed with an arrest. No public complaint necessary. No community standards need be applied. The officer's moral code decides it.

Bad idea.

There's a reason moral subjectivity is kept out of police work. It treads the same slippery grounds as religious or racial or ideological subjectivity. Policing is not a moral but a legal check on public behavior because legal standards can be applied fairly in ways that moral standards cannot: A devout Muslim police officer whose partner is a devout libertine personally may see a gay couple in an intimate, public embrace very differently. One officer's moral code might compel him to make an arrest, if he had the powers. The other's would not. But the law is silent on the matter, making the officers' personal morals irrelevant (thankfully). Unless someone complains, the officers are powerless. And even if someone were to complain, the officers would have to weigh the complaint against existing laws, which say nothing about gay couples kissing in public.

The moral policing bill authored by State Sen. Mike Fasano and State Rep. John Legg, both Republicans from New Port Richey (and supported by the Florida Sheriffs' Association) would make every officer his or her own judge and jury of community standards, gay kissing included. The arrest may not stand up in court. But an intimidating atmosphere would have been enabled the moment a moral code makes such arrests possible in the first place.

It's no small matter that the proposed law to give officers moral powers was instigated by the story of two officers watching a couple having sex in an adult movie theater. The officers couldn't make an arrest because no one was complaining. The irony of the situation speaks for itself as eloquently as the legally defensible powerlessness of the officers to stop the act they were witnessing: An "offensive" act is often not only in the eye of the beholder, but in the context of the beholden. An adult movie theater -- and to a lesser but related extent, a beachfront taken over by spring breakers -- is not the sort of place where law and morals intersect too fluidly.

It's different in places like Saudi Arabia, where moral policing is an established practice. The regime's foot soldiers or the religious police, known as "mutawiun," roam the streets of the nation's cities and enforce morality on the spot -- striking women who may have exposed an ankle too many or doing worse to men caught publicly questioning tenets of the Wahhabism, the puritan strain of Islam that dominates Saudi society.

The proposed law in Florida wouldn't bring Wahhabism to Daytona Beach's streets, to be sure. But it would give police officers the sort of "mutawiu" powers that don't belong in American streets, let alone in the hands of police officers.

Published March 19, 2005, The Daytona Beach News-Journal Online

http://www.news-journalonline.com/NewsJournalOnline/Opinion/Editorials/03OpOPN55031905.htm