Should the Mayor of San Francisco be Arrested?

This is a partial transcript from "The O'Reilly Factor," February 13, 2004 that has been edited for clarity.

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BILL O'REILLY, HOST:  Now for the top story tonight, another view of this from the senior judicial analyst at Fox News, Judge Andrew Napolitano.

Am I going terribly wrong here?

ANDREW NAPOLITANO, FOX NEWS SR. JUDICIAL ANALYST:  No, I think you're about 95 percent right.  I agree with everything you said, except the issue of arresting the mayor.

Now the mayor of San Francisco can no more issue marriage licenses than he can medical licenses.  It's just not a function of him or a function of the city.  In that particular state, marriage has been already defined by a power greater than the legislature, the people at a referendum.  So...

O'REILLY:  Yes, but he's disturbing the peace here.  Why not arrest him?

NAPOLITANO:  Well, he's disturbing the peace...

O'REILLY:  So why not arrest him -- I don't think he'd get convicted.


O'REILLY:  With a symbolic gesture, go on in and say look, you're abusing the privilege of your office, you're wasting the taxpayers' money on this, you're disturbing the peace, because this is huge.


O'REILLY:  And I'm going to have you arrested.

NAPOLITANO:  You know what?  They probably want their money wasted in that town.  The laws are so crazy.  The government pays $50,000 for a government employee to have a same-sex operation change.  They probably think he's doing the right thing.

He's mis-serving his own people, because the people that think they're married, the people that he thinks he has married, will have those marriages undone.


NAPOLITANO:  It's a meaningless document...

O'REILLY:  Right.

NAPOLITANO:  ...because the city doesn't have the power to grant it.

O'REILLY:  It's a symbolic gesture -- it's a symbolic middle finger to the country, all right?  But I want to send another symbolic middle finger right back to Newsom...

NAPOLITANO:  In the form of handcuffs.

O'REILLY:  ...and put him in cuffs, and take him away, and say look, we have laws.  We're a nation of laws.  You have disturbed the peace by violating one of our laws.  And we are going to hold you accountable.

NAPOLITANO:  The traditional interpretations of disturbing the peace do not justify arresting him here.  And we don't have common law arrests.  You can't just arrest somebody because they have done a bizarre or weird thing.  You have to violate a specific statute.

O'REILLY:  Couldn't you find a statute here to arrest that this guy?

NAPOLITANO:  You know I tried this afternoon, Bill, because your team, that asked me to be here with you, asked me to try.  And I couldn't find one.  But he can be sued for malfeasance.

O'REILLY:  He's already being sued.

NAPOLITANO:  He can be sued.  And a judge can call him, activist or not, should enjoin what he's doing.  It is clear that he doesn't have the power to do it, that he's making a mockery of the government, and that he's mis-serving the people he claims he's helping.  Politically, he's very popular.  He was just elected.  He's got four more years before he has to confront the electorate.  And the electorate in San Francisco probably likes what he's trying to do.

O'REILLY:  Well, of course they do.  He's playing to his crowd.  But what he's doing is he's undermining the rule of law in this country.  And that's  happening all over the place.


O'REILLY:  Basically, undermining the rule of law.

NAPOLITANO:  Absolutely.  You gave a long and poignant litany in your opening statement about undermining the rule of law.  This is just another example.  And it's curious.  The left, the progressive groups, the ones that wanted Roy Moore's head on a dish...

O'REILLY:  You bet.

NAPOLITANO:  ...are absolutely silent.

O'REILLY:  Yes, you can undermine the law if it's a law they don't like.  All right...

NAPOLITANO:  You can be in favor of gay marriage and still say the  mayor's doing the wrong thing, because he doesn't have the power to do it.

O'REILLY:  Now one of the things -- sure.  But that's not usually the way  those people operate.

Now one of the things I cited was the judge is attempting -- Virginia -- to undermine the partial birth abortion ban.  All right?  Now the federal government understands that this is going to happen now all over the place.


O'REILLY:  So [Attorney General John] Ashcroft wants to subpoena medical records to show that partial-birth abortions (search) in many cases have been done on healthy babies by the  request of healthy women.  Correct?


O'REILLY:  All right.  That's -- he held a press conference.  And look, we want to prove that this partial birth abortion ruse, where they say it's the health of the woman, that you can find a doctor who will kill a baby for absolutely no reason because the mother just doesn't want it.


O'REILLY:  Now the judges say no, you can't have those medical records proving that because it's a violation of privacy.  What say you?

NAPOLITANO:  OK, I say the Justice Department (search) is doing exactly the right thing.  The doctors who have challenged the partial birth abortion ban have said it's for medically necessary reasons.  So the Justice Department has said writing out the names and other identifying features of your patients, let's see your records so that we can evaluate in the presence of a judge whether those partial birth abortions or whatever you want to call them, doctor, were medically necessary.  Even though the statues enforcement has been stayed by  two federal judges, the issue of the subpoena has been ruled on differently.

A judge in Chicago said the statute stayed.  No subpoena.  A judge here in Manhattan said to the doctors, wait a minute, you guys challenged the statute.  You claim this is interfering with your professional judgment.  Prove it.  Let the Justice Department see the records.  The Justice Department doesn't care about the...

O'REILLY:  All right, so you have dueling -- for judges now, you have...

NAPOLITANO:  That is correct.

O'REILLY: know, the usual activist judges, those who don't like the procedure probably rule in favor of the Justice Department.  Those who want  partial birth abortion rule against it.

NAPOLITANO:  Unfortunately, that's right.

O'REILLY:  Yes.  What we are degenerating into here, judge, is anarchy.

NAPOLITANO:  We are, to an extent we're getting to an point in our society where justice is determined by the personality and the attitude of the judges.

O'REILLY:  Not the law.

NAPOLITANO:  Not the law.

O'REILLY:  Not the will of the people.

NAPOLITANO:  Not the will of the people.

O'REILLY:  Right.

NAPOLITANO:  Not basic human liberty guaranteed by the Constitution.

O'REILLY:  Right.

NAPOLITANO:  And that's wrong.  The most poignant example is what you pointed out in San Francisco.

O'REILLY:  All right.

NAPOLITANO:  It's got to be stopped.

O'REILLY:  OK, Judge Andrew Napolitano, thank you very much.

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