What makes a community a great place to live?
The answer will vary from person to person but most of us would agree on qualities like cleanliness, order and low crime. Notably missing from those terms we use to describe a livable community is the word “freedom”.
In fact, the concept of freedom is often at odds with what some community leaders consider the proper function of local government. A clean, orderly community and personal freedom shouldn’t have to be mutually exclusive terms. But there is an increasing rift between the two.
The unnecessary arrest and jailing of Betty Perry of Orem after a local code enforcement officer confronted her about her dying lawn in 2007 made headlines throughout the state of Utah and elsewhere. Some blamed the police officer who apparently placed more emphasis on the enforcement part of his job than on his peace officer training. Others place the blame on the septuagenarian grandmother who refused to cooperate by signing a ticket or giving her name until she could talk to her lawyer.
Both participants share a portion of the blame, but the needless situation actually finds its genesis in the zoning ordinance that elevates bad yard keeping to criminal status.
Orem is one of many municipalities across the country that has zoning ordinances which were put in place to address so-called nuisance properties that may be considered an eyesore by their neighbors. Though it may seem innocuous to some, it’s important to remember that every law and every ordinance carries a potential death sentence if one fails to submit to the authority of the state.
Thus when a widow finds herself unable to afford the extravagance of watering her lawn, the ordinance regarding neglected yards may set the stage for her to end up bleeding, face-down on the ground in handcuffs, in jail or even dead if she were to resist vigorously enough.
Implicit in every law, ordinance, statute, and code is a mechanism for enforcement which, taken to its logical end, allows the state or municipality to use increasing amounts of coercion up to and including lethal force, if necessary, against the non-compliant.
This is worth remembering when government at any level seeks to “protect” us from nuisances that could and should be handled civilly.
Force is how government accomplishes its goals and too many people have become conditioned to believe that government force cannot be applied in an unrighteous fashion.
Thankfully, Orem City officials recognized the officer’s overreaction and released Perry from custody with a heartfelt apology. The officer was sent him home for the day while public safety officials reviewed the way the incident was handled. They’ve made the best of a bad situation, but wouldn’t it have been better to have never happened?
This is precisely the reason that laws and ordinances must be carefully considered before their passage, to ensure that overkill is not the result.
As has been noted on this blog previously, there are essentially two types of law. Mala in se are laws forbidding an act that would be considered evil by its very nature such as rape, murder, arson, etc. Mala prohibita refers to a prohibited act that is considered a crime only by statute such as not keeping one’s yard neat and tidy. The fact that so many of our municipal ordinances are mala prohibitum shows a couple of things about our society in general.
First of all, it demonstrates an unhealthy reliance upon the state to act as the final arbiter of what is right and what is wrong. Alexander Solzhenitsyn in his address to the Harvard graduating class of 1978 observed that Western societies were becoming civic cowards in that we tended to solve our conflicts by appealing to the letter of the law as the ultimate source of moral authority.
“The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relationships, this creates an atmosphere of spiritual mediocrity that paralyzes man’s noblest pulses.”
Secondly, those noblest impulses we’re ignoring include a degree of neighborly behavior that could solve many of the problems without having to resort to a legal action. In the case of Betty Perry, how differently might things have gone had an offended neighbor approached her personally and expressed concern instead of phoning in an anonymous complaint to the authorities?
With just a bit of teamwork and a desire to seek a win-win outcome, the problem could have been corrected and the debacle of her arrest would have been avoided.
Perhaps our quest for better living could rely less on zoning ordinances and more on simply being good neighbors. But this is only one of the potential drawbacks of vigorous code enforcement. A more insidious problem is that of creating new classes of crimes for the dual purposes of generating revenue and exerting greater control over the citizenry at the local level.
In Ayn Rand’s novel “Atlas Shrugged” one of the characters famously remarks, “Who wants a nation of law-abiding citizens? What’s there in that for anyone?” Looking at the headlines lately, it appears that this concept of turning laws into revenue generators is finding favor among municipalities across the nation.
In Las Vegas, 51 year old Delinda Epstein recently was slapped with a $3800 fine and had her car impounded after posting an ad on Craigslist offering to do errands and chores for a negotiated fee. After picking up a client who had hired her to provide a ride from the airport, Delinda was arrested and charged with the crime of “providing unlicensed transportation” in her duly registered and licensed vehicle.
Her arrest was far less traumatic than the ones experienced by unemployed construction workers in Broward County, Florida who got the full guns-in-the-face, thrown-to-the-ground, hut-hut-hut treatment served up by Broward County deputies during their arrests. What did these law-breakers do to merit the full tactical response? They had responded to ads seeking workers for minor construction or repair jobs but had failed to secure the state’s permission first by paying the appropriate tribute via licensing fees.
Many folks tend to excuse such actions on the part of the state by claiming that “These measures are to protect people from predatory, unlicensed workers.” But please note that in each of the above examples, the law was used to punish pre-emptively; where no actual harm had occurred.
Such stories are glaring examples of how preventative laws are finding favor in our society and they further illustrate how many of our laws, ordinances and statutes are being crafted and applied to further the interests of government rather than to protect the rights of the citizenry.
When cities send out swarms of code enforcement officers to ensure that our landscaping is within code, that our lawns are the right color, that any parked vehicles (inside or outside) are licensed and running and that we don’t have asphalt shingles or other dangerous items stored on our property, are they seeking to secure the interests of the property owner or the city?
When authorities prefer to threaten fines, confiscation, or the filing of liens against property owners rather than seeking to negotiate variances, conditional use permits or other civil means of remedy it appears that they are cashing in on Rand’s point that it’s impossible to “rule innocent men.”
Creating new crimes is providing states, cities and counties with a ready mechanism of collectivist control coupled with a means of generating revenue at the expense of the citizens they claim to be protecting. Punishing people pre-emptively where no harm has taken place flies in the face of our traditions that the state exists to serve the citizens by ensuring justice and fairness through protection of individual rights.
By contrast, protective laws are those that come into play civilly or legally only after an actual injury to person or property has occurred. Real freedom hinges upon our ability to distinguish between preventative and protective laws. Two excellent resources for gaining insight to this difference are The Law by 19th Century French economist Frederic Bastiat and The Proper Role of Government by former Secretary of Agriculture Ezra T. Benson.
A citizenry that understands the correct role of government and is willing to shoulder a greater degree of personal responsibility in maintaining and governing their community will find that they can enjoy a livable community and greater freedom as well. That’s what motivational author Steven R. Covey would describe as a win-win situation for all.