Stephen Goldsmith, victim of bad law: Mandating arrests robs cops of discretion

Stephen Goldsmith, victim of bad law: Mandating arrests robs cops of discretion

Mayor Bloomberg has been widely criticized for failing to disclose that Deputy Mayor Stephen Goldsmith resigned because he had been…

Stephen Goldsmith, victim of bad law: Mandating arrests robs cops of discretion

Mayor Bloomberg has been widely criticized for failing to disclose that Deputy Mayor Stephen Goldsmith resigned because he had been arrested in Washington in a domestic relations altercation with his wife. Editorials have blasted the mayor for letting “loyalty get the better of his duty to provide the public with straight goods.” Public Advocate Bill de Blasio has since called for mandatory legislation “requiring that the arrests of city officials in jurisdictions outside New York City be immediately reported to the NYPD.”

Did the mayor engage in a coverup, or did he do the right thing by allowing Goldsmith to resign without public embarrassment? Doing what’s right usually involves judgment. The problem here was precisely that the police were not allowed to exercise any judgment.

The police did not decide there was a crime, or that Goldsmith was dangerous. The reason Goldsmith ended up in jail is because the arrest was mandatory under domestic relations law in the District of Columbia (as it also is in 22 states). What this means is that if there’s a complaint of any domestic incident — here, the record shows harsh words by the wife and a shove by the husband — the police have no discretion. They are basically compelled to arrest the husband when they arrive on the scene (unless they think the incident was fabricated). Nor does it matter if, as here, the wife pleads with police not to arrest her husband once they arrive.

In New York, which does not have a mandatory arrest law, the police would have evaluated the situation: Was anyone injured (no), was there a prior record of domestic violence (no), were parties under the influence (no), did Stephen Goldsmith appear to be dangerous (no)?

Upon completing this evaluation, they would almost certainly have left without making an arrest or otherwise intervening. They would have duly noted the incident on the record in case the situation arose again — but wouldn’t have taken anyone into custody.

That’s the sort of flexibility that law enforcement should always have: the ability to make spot decisions based on a real-time assessment of the facts.

So, did Bloomberg abuse the public trust when he allowed Goldsmith to resign without announcing the incident? There was no public trust issue — the public servant didn’t continue on the job. Nor was the arrest a sign that the police saw dangerous acts by Goldsmith. Rather, given the circumstances, the mayor decided that the right thing to do was to accept Goldsmith’s resignation, with regret, and to “treat the Goldsmith family with basic decency.”

The problem here is not Bloomberg’s judgment of right and wrong, but with a law that offers no latitude. Police must be alert to spousal abuse, and it is important to have a law that empowers them to put a man in jail where the circumstances seem appropriate, including when the victim clams up when the police arrive — perhaps out of fear of retaliation by her boyfriend or husband.

But police must be able to use their judgment. Linda Mills, the director of NYU’s Center on Violence and Recovery, has concluded in her writings that mandatory laws often make things worse — as well as taking the situation out of the control of precisely the person the law is trying to protect. 

Law that tries to exclude human judgment of right and wrong always veers towards unintended places — as with the Rockefeller drug laws, or “three strikes” laws that send petty criminals to jail for life. In his book “Street Level Bureaucracy,” Michael Lipsky describes how police cannot “possibly make arrests for all the infractions they observe” and analyzes the moral complexity of daily choices by public officials who are “constantly confronted with the apparent unfairness of treating people alike.” Making fair public judgments, he demonstrates, always requires context.

The tempest that has erupted over the Goldsmith incident and the supposed coverup that followed illustrates what political scientist Samuel Huntington called the “democratic distemper” that makes it almost impossible to run modern democracy. A class of “adversary intellectuals” does little else but undermine any authority, calling for mandatory laws and rigid rules that make it impossible to make sensible public judgments.

The flood of criticism of the mayor, on an incident with zero public impact, reveals far more about the skewed priorities of critics than about Bloomberg’s judgment.

The danger here is not that the mayor is cavalier with the public trust. The danger is that his critics will stuff democracy with one more law that makes moral and practical judgments almost impossible, drives good people away from the fishbowl of public service and makes government even more ungovernable.

Howard, a lawyer, is author of “The Death of Common Sense: How Law Is Suffocating America.”

Originally published at

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