The philosopher Hannah Arendt once observed that it was arbitrariness, not necessarily severity, that distinguished totalitarian from law-abiding states. Stalin may have had his Gulags, Hitler his concentration camps, but the key to understanding the exercise of totalitarian power there and elsewhere lay in its capricious, unpredictable application, not its harshness. The operation of law is public, regular, knowable in advance. The eruption of the totalitarian impulse inserts a vertiginousness element of whim. That’s part of what makes it terrifying. In a free society governed by the rule of law, people know where they stand. In the normal course of affairs, most people will never directly experience the coercive power of the state. They are not subjected to harassment at the arbitrary direction of state officials. With the erosion of the habits of liberty, however, everything changes. Now the state tends to regard the people first of all not as its raison d’être but as a potential threat. The result is a sharp contraction of that latitude that free societies allow their citizens.
I thought about these melancholy truths when a friend told me the alarming story of Robin Fleming, a 70-year-old glider pilot and instructor from South Carolina. On July 26, 2012, Mr. Fleming was out for a leisurely flight when, late in the afternoon, the tranquility of the day was suddenly broken by a radio call from local enforcement officials barking orders that he land his glider immediately. “The presumed offense,” the magazine Flying reports in a story called “Pilot Arrested, Charged for Doing Nothing,” “was his briefly flying over a nuclear power plant at approximately 1,000 feet AGL [i.e., above ground level] while looking for lift.”
According to Flying, “Local law enforcement cannot, for the record, order any pilot of an airplane in flight to do anything.” What the magazine meant, alas, is that local law enforcement agencies may not so order a pilot. That they can do was demonstrated by the unhappy case of Mr. Fleming on that otherwise pleasant summer say.
Mr. Fleming landed. His plane was instantly surrounded by 17 police vehicles. He was “detained on the spot, brought to jail, held overnight on a charge of ‘breach of peace,’ and not released until he was bailed out late the next day.” It might have been worse. According to another report from the Aircraft Owners and Pilots Association, one officer spoke of “commandeering the airport.” “He was running around . . .saying ‘We were going to shoot him down.’” Yikes. In the event, the Darlington, South Carolina, sheriff’s office wouldn’t let Fleming call anyone, so members of his flying club were alarmed when he didn’t return as scheduled from his flight. Eventually, they organized a search for him.
The sheriff’s office claimed that Mr. Fleming had violated a “no fly” zone. The problem, as Flying points out, is “there is no such kind of zone, no such regulation and no such offense.”
Robin Fleming was arrested and thrown into jail on the initiative of some hysterical local law enforcement—no, make that “law perversion”—officials.
As Flying observes, “It’s hard to read this case any way other than that Fleming was arrested falsely.” Indeed. The actual charge that was brought—“breach of peace”—was a pathetic afterthought, an effort to paper offer a gross violation of the law with a catch-all pseudo-violation. “After all,” Flying asks, “how could it have been breach of peace for Fleming to do something that he was perfectly within his rights to do? It’s equivalent to someone being arrested for going 50 in a 55 mph speed limit zone and then being arrested for not breaking the law that led to the arrest.”
Adding insult to injury, the sheriff’s office reportedly demanded that Mr. Fleming agree not to sue them in exchange for having the charges against him dropped. Flying concluded that the sheriff’s office ought to have issued an apology, not an arrest warrant.
The charge was an absurdity, an assault on Mr. Fleming’s good name and an insult to all aviators. An apology was what the sheriff’s office should have issued, not an arrest warrant. True. They should then have fired anyone involved in that sorry case of justice miscarried.
Does this make your blood boil? It should. In July, it was an innocent glider pilot who was summarily arrested, jailed, and forced to forgo his right to redress. Tomorrow it might be an innocent housewife who committed the non-crime of snapping a picture of the local constabulary at work or an artist who committed the non-crime of sketching a bridge or some other municipal subject or a student who committed the non-crime of taking out too many books on a sensitive subject from his local library.
The capricious intrusion of the state into our daily lives has become an intolerable nuisance. The question is whether we have the collective will to stop it before it blossoms into something even worse.