John Marshall and Oliver Wendell Holmes, Stay Out of Florida!

If you have read this blog before you must realize that we hold a childlike belief in the efficacy of the rule of law. We believe with Justice Holmes that legally enforceable property rights and the law’s function of resolving disputes are essential to a civilized society because the legal process takes the place of a fight. And Chief Justice John Marshall observed in Marbury v. Madison that the protection of citizens from lawlesness is the government’s primary function. All this sounds good, but it evidently finds no application in Florida where the government is free to refuse to enforce the law and is free to leave you to your own devices when your property is invaded by defiant trespassers. If you don’t like it, says the court, you better resort to self-help — file a lawsuit against the willful trespassers, or hire rent-a-cops to protect you when your local sheriff (whose salary you pay with your taxes) refuses to do so.

We invite your attention to the blog www.inversecondemnation.com which has alerted us to a strange decision from the U.S. Court of Appeal for the 11th Circuit holding just that. Crystal Dunes Owners Ass’n. v. City of Destin, No. 2011-14595, April 17, 2012 (unpublished).

We can understand how a local law enforcement agency can use its discretion to decide whether to intervene (and if so, how vigorously) in a particular confrontation between citizens, but this is a whole other thing. Here, the plaintiff-property owners alleged that the local Sheriff’s office adopted a blanket policy of not enforcing state trespass laws within 20 feet of the wet sand’s beach edge. We are not sufficiently well informed to take a position on the extent to which the Constitution imposes an obligation on law enforcement personnel to enforce its provisions, though we seem to recall that public officers of all sorts take an oath of office in which they swear that they will protect and defend the Constitution of the United States. And last time we looked, the Constitution and state laws did protect owners of property from invasion by wilfull trespassers acting with the acquiescence of the authorities. In fact, we understand that there are criminal trespass laws on the books that make such invasions a crime. Yes? So it follows that when the cops announce in advance that they won’t enforce a law that protects people’s homes (and the curtilage thereof) from defiant trespassers, they disregard their sworn duty and become complicit in violation of the law. No?

How would you react if the selfsame Sheriff annouced that henceforth he and his deputies will not protect homes from home invasions, or banks from robberies, because Florida citizens have the right to defend their turf and  “stand their ground,” while banks have armed guards and can take self-help measures to protect themselves? Or, closer to home, what if the trespassers on a private Destin beach happened to belong to a local Klavern, and they gathered on the private beach of an Africal-American homeowner to down a few beers, party a bit, and exercise thei First Amendment rights to protest anti-discrimination laws? And the local Sheriff refused to do anything, telling the complaining homeowners that they better resort to self-help measures like suing the Klan, or reaching for the old fowling piece the better to “stand their ground”? Do you think the court would still buy law enforcement nonfeasance on those facts? Or is it just a matter of which constitutional right is in issue?

All of which reminds us of a line from the old Li’l Abner cartoon strip (click here) in which a character once explained that there are good constitutional rights and bad constitutional rights, and only the former sre actually protected by law. Welcome to the intellectual (and moral) Dogpatch.

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