Policy vs. Law

Understanding the Critical Difference Every Civilian Needs to Know

In the struggle to safeguard civil rights, it is essential to understand a core distinction that police, public officials, and sometimes even judges often blur, whether intentionally or through ignorance:

Departmental Policy is not the same as Constitutional Law.
The two operate on entirely different levels of authority, and confusing them can allow government misconduct to go unchallenged.

Knowing the difference empowers civilians to correctly assert their rights, challenge abuses, and hold officials accountable when they overstep.

Constitutional Law is the supreme law of the land in the United States.
It is rooted in the U.S. Constitution, the document that defines and limits the powers of government at all levels (federal, state, and local).

Key Points:

• It binds everyone: Police officers, judges, elected officials, and government employees must obey the Constitution.
   
• It is higher than statutes and policies: No local ordinance, state law, or internal policy can legally override constitutional rights.
   
• It protects individual liberties: Rights such as freedom of speech, freedom of the press, freedom to record public officials, protection against unreasonable searches and seizures, due process, and equal protection are enshrined in the Constitution.
   
• It is enforced by courts: Citizens can sue under 42 U.S.C. § 1983 (the federal civil rights statute) if government officials violate constitutional rights.
   

Bottom line:

Constitutional law dictates what government actors may or may not do, not what they personally prefer or find convenient.
 

Departmental Policy refers to the internal rules, regulations, and procedures created by an individual government agency, such as a police department, sheriff's office, or municipal body.

Key Points:

• It governs employees, not civilians: Policies tell employees how they are supposed to do their jobs internally, but they do not have the force of law against members of the public.
   
• It can be stricter than constitutional minimums: For example, a department might require officers to advise citizens of their Miranda rights sooner than legally required, or to report minor uses of force even when not constitutionally mandated.
   
• It can never legalize constitutional violations: No policy can make it "okay" to violate your First, Fourth, Fifth, or any other constitutional rights.
   
• It can conflict with constitutional rights: Sometimes policies unintentionally (or intentionally) encourage unconstitutional behavior, such as policies against filming in public spaces or policies that improperly restrict free speech near public officials.
   

Bottom line:

Departmental policies are rules for employees, not limits on the public. Policies cannot override your constitutional protections.
 

Scenario:

Departmental Policy Constitutional Law Police department says "You can’t film us within 15 feet. "Internal policy trying to regulate officer comfort. You have a First Amendment right to film public officials in public spaces, from any reasonable distance, unless you’re actually interfering with lawful duties. 

A department requires officers to ask for ID during every encounter. Departmental rule about best practices. Under Terry v. Ohio, unless you are lawfully detained or arrested, you do not have to show ID in many states (depending on "stop and identify" laws).An officer demands you stop recording because it violates “policy.” Officer citing internal regulation. 

Constitutionally, recording public officials in public places is protected speech under the First Amendment (Glik v. Cunniffe, Fields v. Philadelphia).  

Failing to understand the difference allows police and government agencies to:

• Intimidate civilians by pretending their internal policies have legal force over the public.
   
• Shield misconduct under the excuse of “just following policy.”
   
• Suppress constitutional rights without proper legal justification.
   
• Escape accountability by hiding behind internal rules instead of facing constitutional scrutiny.
   

Knowing your rights means you can recognize when an officer is trying to impose internal rules on you as if they were laws, and immediately push back, calmly but firmly.

When a government employee cites “policy” to limit your rights:

1. Stay calm and record everything.
    
2. Politely but clearly assert:
   ➔ "Policies apply to employees, not to the public. I am exercising a constitutional right."
    
3. Request clarification:
   ➔ "Are you giving me a lawful order based on statutory law or constitutional authority?"
    
4. Ask for the statute or law citation, not just "department policy."
    
5. Document names, badge numbers, and times for any future complaint, lawsuit, or public exposure.
    

Several major court decisions have emphasized that policies cannot override constitutional rights:

• Glik v. Cunniffe (2011) - First Circuit Court held that private citizens have a clearly established right to videotape public officials in public spaces.
   
• Turner v. Driver (2017) - Fifth Circuit confirmed the right to record police activity is protected under the First Amendment.
   
• Fields v. City of Philadelphia (2017) - Third Circuit ruled that recording public officials is protected, regardless of the recorder's intent.
   
• 42 U.S.C. § 1983 - Allows civilians to sue government officials who violate constitutional rights under color of law.
   

These cases show that when departmental policies conflict with constitutional rights, the Constitution wins, every time.

Departmental policies are internal instructions.
Constitutional rights are supreme law.

Police and government workers are bound by their policies, but you are only bound by the Constitution and valid laws.

If a policy violates your rights, you do not have to comply, and you have every right to:

• Document it,
   
• Challenge it,
   
• Sue for damages if necessary,
   
• And bring public attention to unlawful behavior.
   

The founding principle of the United States is that the government serves the people, not the other way around.
Understanding the difference between policy and law is one of the strongest weapons you have in defending your liberty.