Common Law for Cops

Dedicated to Sgt. Paudert and Patrolman Evans, their families and their fellow officers they left behind.

Further the influence of the Israelites tort process introduced through the Pentateuch (the first five books of the Bible), or Torah, otherwise known as the “Covenant Code” have been attributed by the American Bar Association to “provide the depth of the roots of tort law in the Judeo-Christian tradition”.

By the time the Middle Ages rolled around the legal theory of common law had evolved once again and took foothold in England, post Norman Conquest 1066 A.D.  Given the fact that many of our Founding Fathers were former English subjects, transplanted to North America (many having been trained as lawyers in England) led to our introduction of common law here.

It’s important to understand that The Founders when constructing the Articles of Confederation and U.S. Constitution desired a variance (another evolution) of common law, because the common law system in England wasn’t working here too well.  Remember the Declaration of Independence?  As a result, a new legal system was designed by The Founders that did not completely separate itself from the English Common Law System, but rather Americanized it so as to fit our fledgling nations particular needs.  In many cases common law crimes were codified, meaning written in such a way to more accurately reflect the offense as being more American, understood, than European.  Many of our state statutes today still reflect that codification of yesteryear.

It was absolutely the intent of The Founders that the legislature from their respective states, to include the federal government, would interpret laws against what was already known or accepted (common law).  Article III of the U.S. Constitution provided the judiciary with the authority to interpret law when the clarity of issue was required.  The authority of the U.S. Supreme Court was defined, and tasked with having the ultimate interpretation authority keeping common law views as a backdrop to their decisions.  In other words, men like James Madison, John Adams, Alexander Hamilton, et al., knew that the English System didn’t entirely work, and we needed a better one that still retained the best of our ancestry legal system.

Counter Argument 

So what does all this mean when a “Constitutionalist”, “Extremist”, “Sovereign Citizen”, or “Freeman” argues with a cop on a traffic stop saying that they only adhere to English Common Law?  Essentially, what they are saying is that they want to live in England.  I would suggest that we find a way to assist them in getting there, (I’m big into Community Policing so I like to help people) or at least attempt to engage them in dialog not gunfire to get them to at least think for a moment about what we discussed above.  It never ceases to amaze me what happens when people think.  Sometimes we find that the differences between us are subtle and not substantial.  Of course, if that doesn’t work the “Extremist” can always revert back to calling the officer an a$$&*^@, which has been upheld as being Constitutionally protected speech, rooted in the Americanized version of Common Law. 


About The Author:

Keith R. Lavery, M.A., CMAS, is a full-time criminal justice educator teaching at a public Career Center, University System of Ohio. He has facilitated and designed criminal justice, security, and law enforcement courses of instruction at the post-secondary level. Keith had a very diverse police career spanning nearly 20 years, working in urban and rural law enforcement settings with assignments ranging from patrol to specialized functions, to include HIDTA Drug Unit, CLANLAB Enforcement Team, SRT and Supervision. In 2008, Keith was awarded the Certified Master Anti-Terrorism designation from the Anti-Terrorism Accreditation Board. Academically, he has completed post-graduate course work dedicated toward a Doctorate in Education. Keith is currently the Law Enforcement Liaison for the Cleveland, Ohio, Chapter of ASIS International.

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