AS 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.