One Cop To Another: Don't Arrest Phelps for Bong Photo

"If someone breaks the law in Richland County, we have an obligation as law enforcement to investigate and to bring charges." So states Sheriff Leon Lott, top cop in this South Carolina jurisdiction of 348,000 residents.

As one cop to another: No you don't, Sheriff. You do not have to arrest the "someone" you're referring to: the serial Olympic gold medalist Michael Phelps. Not unless the age-old law in your state has changed since last spring.

In an opinion dated April 17, 2008, Attorney General Henry McMaster wrote, "...it is well-recognized that, by definition, police officers must retain a wide degree of discretion in carrying out their duties of enforcing the laws." Citing numerous cases, your AG returns again and again to the key word, may. As in, "...sheriffs and deputy sheriffs of this State may arrest without warrant any and all persons who, within their view, violate any of the criminal laws of this State..." [Original emphasis retained.] The recipient of Mr. McMaster's letter? Why, the South Carolina Sheriffs' Association, of which you are a member.

I'd be willing to bet your pension, Sheriff, that every police officer in the country knows you have no legal mandate to arrest Michael Phelps. Cops understand that without the discretion granted them in law they'd be paralyzed, unable to do their jobs. Unable to make intelligent decisions about who gets a ticket and who doesn't, who goes to jail and who gets a pass.

Equally important, given the authority, how would you go about making the case? Did you or one of your deputies actually witness the offense (apart from a chance viewing of the ubiquitous photo)? Under South Carolina law, simple possession of marijuana is a misdemeanor. Absent witnesses and/or physical evidence, law enforcement officers must personally witness the misdemeanor (see "within their view," above) in order to make an arrest. Would you round up witnesses who were present during the "crime"? Take statements? Seek out and impound the bong for forensic testing? Would you honestly go to such lengths in order to bust this young man?

In other words, Sheriff Lott, you simply do not have to go after Mr. Phelps. Nor should you.

The drug war mentality is clearly behind all the fuss surrounding the Olympic swimmer and his bong hit. You and I both know there are far more important cases law enforcement should be pursuing. Burglaries, rapes, robberies, car prowls, auto thefts, domestic violence, child abuse, home invasions, carjackings. Arresting Michael Phelps would only add to the absurdity of the situation, and paint you as a grandstander.

Speaking of which, that's a handsome photo of you and yours posing in front of the department's recent acquisition: an armored personnel carrier with belt-fed .50 caliber machine gun. You call it a "peacemaker." I call it a weapon of war. Experience across the country suggests it will soon be employed on the front lines of the drug war, rumbling down a city street to a suspected drug house where everyone in its path, including innocent citizens, is placed at grave and unnecessary risk.

I can hear you now, Sheriff. I don't make the laws, I just enforce them. And you're right. But you and all the rest of us in the field of criminal justice -- cops, prosecutors, judges, prison officials, probation and parole officers -- are in a unique position to influence our lawmakers, and to help bring a measure of sanity to the laws we're expected to enforce.

I'm an active member of Law Enforcement Against Prohibition. I invite you, Sheriff, to visit our website and to consider joining us. As you'll see, we make a serious and sober argument, along with millions of other Americans, for ending the drug war.

Until that happy day comes, our law enforcers should take a deep breath, calculate the manifold harms caused by the War on Drugs, and embrace fully the discretion they've been granted.

Comments

[dc2nm]

I was not aware of LEAP and I'm happy to know it exists. The only way the war on drugs can change is support from law enforcement.

[clamperken]

When will the sanity return? You out there has ever heard of any violent or serious crime attributed to marijuana use? None I am sure. While alcohol has resulted in untold deaths, crime and broken homes, still the ignorant powers that be continue to make pot out to be the great evil.

[dagdavid]

Smoke and be happy.

[DavidBlackburn]

If we want to quit wasting federal tax dollars, we'll make pot legal and tax it.

[spiderbucket]

Pot is only illegal due to the Right Wing nutjobs and their 'culture war' stance. The sooner we round them up and herd them into old NASCAR stadiums - the better.

[Loculi]

Don't be fooled, marijuana prohibition is not a conservative only stance it is much more deep rooted than that. Sadly it is the result of years and years of misinformation and half-truths, meanwhile the racket that is our law enforcement agencies', "War on Drugs" marches on. Anyways I just wanted to point out that I've got a few close friends who are staunch Republicans, yet they smoke out too and fully agree that the war on drugs is a terrible joke

I've got a stimulus plan for you Washington boneheads, decriminalize marijuana, regulate and tax the hell out of it. The black market and criminality behind it will disappear overnight when people can simply go to the corner store for a joint. How many years have reasonable, intelligent Americans been advocating this? Do we even need to get into the myriad uses it has and how beneficial it could be? How many years do we have to waste pursuing people for pot while violent offenders are allowed to walk free on parole because of prison overcrowding? It's just ridiculous.

[shastaman]

THANK YOU!!! The amazing thing to me is that we haven't seen a ground swell of oposition to marijuana laws. It's ben F-ing nuts what the parasites at the public trough have gotten away with
Wackenhut of Houston Tx. has been a major recipient of the largest prison expansion in world history! And Bechtel, and on and on ! These guys have made weed out to be the big culprit. In doing so they have created a situation where those who traffic the innocuous mood enhancer have GUNNED UP and the race to the bottom is again "who can out spend and out gun the other"

The money involved is so much more dangerous than any of the substances.

WHAT'S YOUR ADDICTION?

I think that sheriff should KMATIB

[wingnutslayer]

After looking at that self-glorifying photo I would say that Sheriff Lott is not the man to bring a measure of sanity to anything. I would say to the state of South Carolina that obviously you don't need a cut of the new stimulus package since you're obviously flush with money. You can afford for one of your counties to buy that war wagon and you can afford to consider spending the money to prosecute a young man who did a bong hit somewhere undetermined three months ago. Just go fly your little Confederate flag, symbol of when our country was at its most divided, in front of your little state house and pretend that your state isn't one of the crappiest role models America has yet to come up with.

[SOLERSO68]

I wish south carolina would jusr seccede again..we'll let you go this time , promise, but dont expect any foreign aid...you'd have to apply and right now you'd be behind Namibia

[escrow7]

If I had a dollar for every "star" I saw in pictures, movies, video, on the internet smoking marijuana I'd be a rich somebody.

http://www.thirdeyechronicles.com

[Donnat]

waste of time. Decriminalize it and let law enforcement concentrate on the white collar crime. It's certainly done more damage to the U.S. then Phelps taking a hit on a bong.

[Horus]

Phelps should've just said that it wasn't pot. ~ When I was in college an unfortunate incident happened to me, my dorm roomed got raided by police. I lived with two other guys and they tore our stuff apart. Whilst looking they saw pictures of me on my bulletin board smoking from a big hookah, and some other of me smoking bong. The cop smirked and snatched them off the wall and was like 'what do we have here? Evidence of a crime?' I said 'no sir'. It is common to smoke fruit tobaccos out of those types of pipes, and thats what it was, fruit tobacco. They can't prove otherwise, they can't smell the picture, or reach in and examine the smoke. It's a picture! You can tell em whatever you want about it!

[SOLERSO68]

Phelps could have said it was jimmy hoffas dingle berries and and wouldnt matter. even in south carolina they need actual "evidence" to prosecute a (white) person

[escobar]

Big shots like the Sheriff give the State of SC and law enforcement a bad name.
They have plenty of fugitives who have hurt others out on default warants.They have everything from wife beaters, failure to pay child support, to heroin dealers who have shot someone, and meth brewing bike gangs. Everyone runs free until they get caught in another crime or traffic stop.
This grandstanding hero should go serve some outstanding Warants on really bad guys they can esliy find.
It is likely Sheriff is an elected position in SC as it is in much of the South.
Now he can sit in his office and pontificating to the pleasure of his public.
Serving outstanding warrants would mean more work and possibly a risk of getting shot if it is a bad guy. Many would just be some selfish loser who ignores his kids they could just go pick up.
The Sheriff only wants to draw attention to himself but Phelps better not ignore him.
Phelps is stupid live in or ever be in SC now.
It is a beautiful place but there are plenty of other nice places where he can buy friends to stab him in the back.
If he owns a house he should leave town and let the realtors sell it.
He is clearly a marked man now.
If he is too stoned to leave he'll get what they have in store for him sooner or later, no doubt about it.

[ditsylilg]

Thanks great article and argument. Glad I live in MA, where we realized that law enforcement has more important things to do than bust on a simple possession charge. This will potentially save MA millions in all aspects of legal costs: police, justice and the prison system.

The rest of the country needs to get on the same page.

[candyperfumegirl]

So, if he can smoke pot and win a zillion Olympic gold medals, can someone remind me again why it's illegal in the first place?

[escobar]

It became the drug of choice for the anti-war counter culture of the late 60's and early 70's.
Nixon started the money pit DEA and pot is a great add on. Yet LSD was produced in labs and the cocaine trade had not really spun up. There was plenty of Heroin comming from SE asia as a by-product of the war.
"Three martini Bill" Bennet became drug "Czar" under Reagan and instituted the drug testing program to as a final blow to that anti-establishment pot smoking culture.
Alcohol and hard drugs are far more profitable and take only three days to wash out of the system while pot stays as a marker for three weeks or more.
Pot had become a dangerous cultural icon more than a health issue, even if it does tend to crub ambition in youth.
You must be young. Hope that answers your question.

[candyperfumegirl]

Hey, wow, thanks, that's a way more informative answer than I expected, glad I checked back...

[atlantajoe]

the war on pot was waged well before nixon, try the thirties. You must be young !

[Nooneyouknow]

Yup. The CIA was importing heroin from SE Asia, like it's now importing heroin from Afghanistan and cocaine and marijuana from South America. Remember, the CIA's own inspector general investigated and found that the CIA had basically started the crack epidemic in Los Angeles.
Just another reason why the "War on Drugs" is actually "the War on the Little People (Who Are Mostly Brown) Who May Have Used Drugs."

[buster85]

If the police have enough evidence to get a conviction, the go for it. However can the police prove that there was pot in the pipe? Don't do this as a publicity stunt just to prove the sheriff has power.

[omo]

There doesn't seem to be any way you could identify what he was smoking from a picture. Phelps should go with the 'catnip' defense : as in, "I was smoking organically grown catnip which has a mild minty flavor . . . " which is all perfectly true, catnip also has a calming effect and tastes pretty good !

'course, then we might find ourselves trying to keep catnip legal and if it wasn't there would be a LOT of very unhappy cats . . .