What Happens When Government Does Not Know Its Own Laws?

Today I came across this article which involves a Philadelphia man, Mark Fiorino, who was recently stopped by police for carrying a handgun openly in the city.  Apparently, the young man has been routinely carrying openly there for some time, an act that is completely legal if one possesses a permit – which he did and offered to show the responding officer, Sergeant Michael Dougherty.  As he reportedly often does, Mr. Fiorino was carrying an audio recording device which reasonably indicates that he was anticipating a confrontation, the sense of which is certainly debatable.  The recording is attached below.

The entire incident was contentious from the start, with Officer Dougherty unprofessionally calling Mr. Fiorino “Junior” and at one point yelling at him to “shut the **** up” as he presumably makes him lie face down on the ground.  It is without dispute that Mr. Fiorino was uncooperative with the officer initially and he should have been.  For that, it will be difficult for the disorderly conduct charges to not stick, I think.  But the officers were also very unprofessional themselves and were clearly angered when they discovered that he was recording the incident.  Lieutenant Raymond Evers, a spokesman for the city police, speculated that “Fiorino appears to be inviting trouble from the law by ‘surreptitiously’ recording his encounters with police.”  I totally disagree with this statement as there is a monumental difference between anticipating trouble and inviting trouble.  But for sake of the argument I simply reply with– so what?  Mr. Fiorino was not breaking a law by carrying openly, nor was he breaking a law by recording any potential encounters with police during the conduct of their official duties.  Just what exactly is the message that the Philadelphia police are trying to send with such speculation, that you can be a law abiding citizen so long as you do not do so brazenly or without remorse, or that you must do so without attracting the attention of police officers who may, or may not, know what the law actually states?

I have no doubt that the Lt’s assumption is correct but that does not dismiss the glaring perception this incident fosters – that the police, who ultimately hold incredible power over the populace, do not know as much about such obviously critical laws as the populace does.  Mr. Fiorino would not have likely been carrying the recording device if he did not already know or presume that the police would erroneously hassle him and do so unprofessionally, something the Lt’s own speculation ironically denotes.  This sounds to me like at least a partial attempt to deflect the responsibility that the police department nonetheless owns for their officers’ professional incompetence.

Much like confirming a driver’s license, the police unquestionably have the authority to investigate permits when probable cause is prevalent – and carrying openly is clear probable cause that is subject to the discretion of the officer(s) in question.  The mere fact that the officer approached Mr. Fiorino is not the problem.  But the manner in which he did so and the causal factor that he was totally oblivious to the statutes that he is empowered to enforce absolutely is.  How can we, as a public, trust that the police officer is proficient and professional enough not to inappropriately discharge the weapon he pointed at Mr. Fiorino if he has already demonstrated that he is not proficient and professional enough to be cognizant of the very law which he is sworn to uphold?  When police interact with the populace with such disrespect and unprofessionalism (especially regarding their demeanor and language) they then lose all right to expect the law abiding public to not harbor resentment and disenfranchisement with the institution – a general feeling that I perceive is growing in society, unfortunately.

Mr. Fiorino undoubtedly should have hit his knees when instructed to do so without argument but I do not fault him at all for offering to provide the officer his legal artifacts.  The permit is something that the officer should have been professionally competent enough to accept as it is the only legitimate legal justification for his confronting the young man in the first place.  Further, I never once heard the arresting officers Mirandize the young man, even though they clearly detained him.

There is a prevalent problem that is growing in America that stems in part from the fact that the United States is the most legislated nation in recorded history.  Our politicians continuously make trivial and petty laws to facilitate and justify their own existence, to satisfy special interests, and/or to further their own personal or professional agendas.  This phenomenon is not without its own special set of consequences, even if arguably unintentional:  “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

Last Christmas I traveled across the country to visit my family for the holidays and decided to fly with my personal firearm – something I do often enough.  Because I am admittedly obsessive in my preparation I printed out the Transportation Security Administration’s weapons-related regulations for checking firearms and ammunition and carried them with me to the check-in counter.  To my somewhat naïve surprise, I found that I had to educate the TSA personnel on their own rules because they were not initially going to let me fly with my ammunition packed the way I had – citing those same rules as justification.  They were embarrassed, and not without merit, that a private citizen was forced to point out their professional ignorance.

It begs the question – how exactly do people expect to conduct their lives entirely within the law at all times, given the multitude of silly and inconsequential laws on the books, when law enforcement and other government officials themselves seemingly cannot keep track of all the major ones?  Whether it is firearms laws such as this or tax laws that politicians cannot seem to figure out (even though they write them), the result is the same.  It ultimately goes to the credibility of the agency represented specifically and the government in general, and does not paint a positive picture.

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  1. #1 by tristan Darkthunder on May 24, 2011 - 12:29 AM

    With an attitude like this, these cops will get shot.

    • #2 by The Observer on May 24, 2011 - 5:00 PM

      Tristan,
      I certainly hope something like that does not occur but the incident does serve to illustrate just how fragile the relationship between government and the willing governed often is, nonetheless. Mutual trust is one of the underlying fundamentals that keep this paradigm hanging together by the thinnest of threads. As time goes by, law enforcement officers appear to be growing more and more distrusting of the law abiding populace. This seems to fuel their sometimes less than professional and respectful interactions with the public which in turn fosters reciprocal resentment and the cycle grows from there. Or perhaps it is a “chicken and egg” scenario… Either way, when law abiding citizens start seeking out opportunities to identify and highlight professional ineptitude in government – and worse, they are successful in this endeavor – it is indicative of a significant underlying problem.

  2. #3 by Larry Wilson on June 25, 2011 - 12:18 AM

    Open carry is NOT “probable cause” for a police officer to come up and demand ‘your papers.’ Nor is simply driving a car “probable cause” for a police officer to stop a driver just to see if they have a driver’s license.

    Statements like that are damaging and dangerous.

    The “mere fact” that the officer approached him IS the problem; the police should not be stopping people to identify them if they are NOT breaking the law, and approving this kind of action on the part of the police shows a lack of understanding of our 1st, 2nd, 4th, and 5th Amendment protections.

    You have way overanalyzed this issue; here’s how simple it is. It’s legal in Pennsylvania and Philadelphia to open-carry. The police should not be stopping ANYONE who is not violating any law just so they can potentially find out if a law is being broken. It’s even ironic that it needs to be pointed out considering your comments on the complexity of current laws.

    • #4 by The Observer on June 25, 2011 - 9:08 AM

      Larry,
      You’re focusing on the wrong part of the story but I can concede the point. I should have been clearer that I was pointing out the reality of probable cause applications in their practice rather than in theory. But the fundamental point of my ultimate posting was not in reference to the probable cause aspect of the encounter so much as it was the encounter itself and the root problem – that of the carry law itself and the lack of knowledge regarding it that the officer displayed. To that end you are correct that the initial approach of the police officer was erroneous on principle. No, the police cannot pull you over solely to verify your license but they can verify it once they have you pulled over (presumably) legitimately. This was the basic underlying point that I was attempting to make – simply that if the police officer would have verified the permit, which was his only (arguably) legitimate action to take in this situation, it likely would not have been contentious.

      Again, I was illustrating the current and legal practice of probable cause, not its theoretical purpose (which we agree on). You stated that it is “legal in Pennsylvania and Philadelphia to open-carry,” but you forgot to mention the remainder of the law: that it is legal to do so only with a permit. That is where the probable cause aspect potentially comes in to play for the police officer and I feel pretty confident that a judge at any level will agree – rightly or wrongly.

      On principle, I do not think that anyone should have to obtain or carry a permit for carrying, register their firearms, or even purchase their firearms from Federal Firearms Licensees, but that is just not the legal reality of our nation. To me, preemptively regulating a right in such ways is wrong and not in keeping with the state’s burden to prove wrongdoing beyond a shadow of a doubt before rights are abolished – to that end I think we are on the same page.

      Thank you for your comment.

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