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

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"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.

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