Submitted by: Edward Moore
The Changing Face of the Police and the Death of the Fourth Amendment
By John W. Whitehead
5/23/2011
http://www.rutherford.org/articles_db/commentary.asp?record_id=712
“Now, one of the most essential branches of English liberty is the
freedom of one’s house. A man’s house is his castle; and while he is
quiet, he is as well guarded as a prince in his castle. This writ, if it
should be declared legal, would totally annihilate this privilege.
Customhouse officers may enter our houses when they please; we are
commanded to permit their entry. Their menial servants may enter, may
break locks, bars, and everything in their way; and whether they break
through malice or revenge, no man, no court can inquire. Bare suspicion
without oath is sufficient.”—James Otis
In early America, citizens were considered equals with law enforcement
officials. Authorities were rarely permitted to enter one’s home without
permission or in a deceitful manner. And it was not uncommon for police
officers to be held personally liable for trespass when they wrongfully
invaded a citizen’s home. Unlike today, early Americans could resist
arrest when a police officer tried to restrain them without proper
justification or a warrant—which the police had to allow citizens to
read before arresting them. (Daring to dispute a warrant with a police
official today who is armed with high-tech military weapons and tasers
would be nothing short of suicidal.) This clear demand for a right to
privacy was not a byproduct of simpler times. Much like today, early
Americans dealt with problems such as petty thievery, murder and attacks
by foreign enemies. Rather, the demand for privacy stemmed from a
harbored suspicion of law enforcement officials and the unbridled
discretion they could abuse.
The Fourth Amendment, which assures that “the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,” was included
in the Bill of Rights in response to the oppressive way British soldiers
treated American colonists through their use of “Writs of Assistance.”
These were court orders that authorized British agents to conduct
general searches of premises for contraband. The exact nature of the
materials being sought did not have to be detailed, nor did their
locations. The powerful new court orders enabled government officials to
inspect not only shops and warehouses, but also private homes. These
searches resulted in the violation of many of the colonists’ rights and
the destruction of much of the colonists’ personal property. It quickly
became apparent to many colonists that their homes were no longer their
castles.
Revolutionary patriot James Otis was Advocate-General when the legality
of these warrants came under question by the colonists. Called upon to
defend that legality, he promptly resigned his office. After living
through an age of oppressive policies under the British Empire, those of
the founding generation, such as Otis, wanted to ensure that Americans
would never have to face intrusive government measures again.
Fast forward 250 years and we seem to be right back where we started,
living in an era of oppressive government policies and a militarized
police whose unauthorized, forceful intrusions into our homes and our
lives have been increasingly condoned by the courts. In fact, although
the Fourth Amendment’s protections against unreasonable searches and
seizures go far beyond an actual police search of your home, as I detail
in my commentary, “Renewing the Patriot Act: Who Will Protect Us from
Our Government?” the passage of the USA Patriot Act opened the door to
other kinds of invasions, especially unwarranted electronic intrusions
into your most personal and private transactions, including phone, mail,
computer and medical records. When added to this list of abuses, two
recent court decisions—one from the U.S. Supreme Court and the other
from the Indiana Supreme Court—both handed down in the same week, sound
the death knell for our Fourth Amendment rights.
In an 8-1 ruling in Kentucky v. King, the U.S. Supreme Court effectively
decimated the Fourth Amendment by giving police more leeway to break
into homes or apartments without a warrant when in search of illegal
drugs which they suspect might be destroyed if notice were given. In
this particular case, police officers in pursuit of a suspect they had
seen engage in a drug deal in a parking lot followed him into an
apartment complex. Once there, the police followed the smell of burning
marijuana to an apartment where, after knocking and announcing
themselves, they promptly kicked the door in—allegedly on the pretext
that evidence of drugs might be destroyed. Despite the fact that it
turned out to be the wrong suspect, the wrong apartment and a violation
of every tenet that stands between us and a police state, the Court
sanctioned the warrantless raid, saying that police had acted lawfully
and that was all that mattered. Yet as Justice Ruth Bader Ginsburg, the
lone voice of dissent among the justices, remarked, “How ‘secure’ do our
homes remain if police, armed with no warrant, can pound on doors at
will and ... forcibly enter?”
In the second case, the Indiana Supreme Court actually stepped beyond
the constitutional parameters of the case before them to broadly rule in
Barnes v. State that people don’t have the right to resist police
officers who enter their homes illegally. The court rationalized their
3-2 ruling legitimizing any unlawful police entry into a home as a
“public policy” decision. On its face, the case itself is relatively
straightforward: An Indiana woman called 911 during an argument with her
husband. When the police arrived, the man blocked and then shoved an
officer who tried to enter his home without a warrant. Despite the fact
that the wife told police her husband hadn’t hit her, the man was
shocked with a stun gun and arrested. Insisting that it would be safer
for all concerned to let police proceed even with an illegal action and
sort it out later in court with a civil lawsuit, the court held that
residents can’t resist police who enter their home—whatever the reason.
The problem, of course, is that anything short of complete and utter
acquiescence and compliance constitutes resistance. Thus, even the
supposedly protected act of free speech—a simple “Wait, this is my home.
What’s this about?”—constitutes resistance.
Many are understandably up in arms about these decisions, but the courts
are not really introducing anything new into our lives—they are merely
reflecting and reinforcing the reality of the age in which we live, and
that is one in which the citizen is subordinate to government and what
the “state”—be it the police, the schools or local or federal
agents—says goes.
While the courts have been guilty of reinforcing this paradigm of abject
compliance to the state, it is also being taught in the schools, through
zero tolerance policies that punish all offenses equally and result in
young people being expelled for childish behavior. School districts are
increasingly teaming with law enforcement to create what some are
calling the “schoolhouse to jailhouse track” by imposing a “double dose”
of punishment: suspension or expulsion from school, accompanied by an
arrest by the police and a trip to juvenile court. In this way, having
failed to learn much in the way of civic education and/or the Bill of
Rights while in school, young people are being browbeaten into believing
that they have no true rights and government authorities have total
power and can violate constitutional rights whenever they see fit.
Indeed, the average citizen really is helpless in the face of police
equipped with an array of weapons, including tasers, etc. The increasing
militarization of the police, the use of sophisticated weaponry against
Americans and the government’s increasing tendency to employ military
personnel domestically have taken a toll on more than just our freedoms.
They have seeped into our subconscious awareness of life as we know it
and colored our very understanding of freedom, justice and democracy.
The role of law enforcement, especially local police officers, has
drastically changed from when I was a child in the 1950s. The friendly
local sheriff in The Andy Griffith Show has been shelved for the federal
gun-toting terrorist killers in popular television shows and movies.
Some might insist that the new face of law enforcement is warranted as a
sign of the times in which we live. Whereas we once feared nuclear
attack by Communist Russia, we now fear each other and the predators
that lurk in our midst—serial killers, drug pushers, home-grown and
imported terrorists, sexual perverts who prey on small children, the
list goes on. One thing is undeniable: armed police officers have become
a force to be reckoned with. And it’s not just local law enforcement. As
the federalization of law enforcement continues to grow, more and more
federal agents are armed. In fact, federal agencies employ more than
100,000 full-time personnel authorized to make arrests and carry firearms.
Yet federal agencies such as the FBI are only a small portion of the
armed federal personnel. It seems as if almost everyone—from postal
agents, the Internal Revenue Service, the National Park Service and the
Environmental Protection Agency to agents of the U.S. Fish and Wildlife
Service and the Army Corps of Engineers—is now carrying deadly weapons.
For instance, in Virginia, game wardens have been renamed “conservation
police officers” in an effort to clarify their role as sworn law
enforcement officers who are armed and able to make arrests.
At all levels (federal, local and state), through the use of fusion
centers, information sharing with the national intelligence agencies,
and monetary grants for weapons and training, the government and the
police have joined forces. In the process, the police have become a
“standing” or permanent army, one composed of full-time professional
soldiers who do not disband, which is exactly what the Founders feared.
Those who drafted the U.S. Constitution and Bill of Rights had an
enormous distrust of permanent armies. They knew that despotic
governments have used standing armies to control the people and impose
tyranny. James Madison, in a speech before the Constitutional Convention
in the summer of 1789, proclaimed: “A standing military force, with an
overgrown Executive will not long be safe companions to liberty. The
means of defense against foreign danger, have been always the
instruments of tyranny at home.” As predicted, these very same
“instruments of tyranny” are now often being used to wage war against
the American people. Thus, it would seem that we have become the enemy.
In appearance, weapons and attitude, local law enforcement agencies are
increasingly being transformed into civilian branches of the military.
One clear distinction between local police and military forces used to
be the kinds of weapons at their disposal. With the advent of modern
police weaponry, that is no longer the case. Americans would do well to
remember that modern police weaponry was introduced with a government
guarantee of safety for the citizens. Police tasers, stun guns and
rubber bullets were brought into use by police departments across
America supposedly because these “non-lethal” weapons would be safe. But
the “non-lethal” label seems to have caused police to feel justified in
using these dangerous instruments much more often and with less
restraint—even against women and children, and with some even causing
death.
Tasers, stun guns and rubber bullets might very well seem relatively
harmless in comparison to the arsenal of weapons now available to local
law enforcement, especially paramilitary units like Special Weapons and
Tactics, or SWAT, teams. Standard SWAT team weaponry includes battering
rams, ballistic shields, “flashbang” grenades, smoke grenades, pepper
spray and tear gas. Many squads are also ferried to raid sites by
military-issue armored personnel carriers. Some units even have
helicopters, while others boast grenade launchers, tanks (with and
without gun turrets), rappelling equipment and bayonets.
Then came the “no-knock” raids. At first, no-knock raids were generally
employed only in situations where innocent lives were determined to be
at imminent risk. That changed in the early 1980s, when a dramatic and
unsettling rise in the use of these paramilitary units in routine police
work resulted in a militarization of American civilian law enforcement.
The government’s so-called “war on drugs” also spurred a significant
rise in the use of SWAT teams for raids. In some jurisdictions, drug
warrants are only served by SWAT teams or similar paramilitary units and
oftentimes are executed with forced, unannounced entry into the home.
Approximately 40,000 “no-knock raids are carried out each year, usually
conducted by teams of heavily armed paramilitary units dressed not as
police officers but as soldiers prepared for war. But as one retired
police officer warns: “One tends to throw caution to the wind when
wearing ‘commando-chic’ regalia, a bulletproof vest with the word
‘POLICE’ emblazoned on both sides, and when one is armed with high tech
weaponry.”
American society has changed. And with that change, the way the
government views us, the way we view one another and the way we view and
are viewed by law enforcement have undergone dramatic transformations.
We have succeeded in forfeiting one of the principles that has been a
hallmark of American democracy—the idea that every person is innocent
until proven guilty. This is such a simple concept, yet it undergirds
some of our Constitution’s greatest protections, such as the right to an
attorney and a fair hearing, protection from unreasonable searches and
seizures and the right to privacy, among others.
We have also witnessed a sea change in the way law enforcement views its
role, from one that considered itself a servant to the people to one
that sees itself as the long arm of an increasingly authoritarian
government. Where law enforcement officials once looked to us as their
employers, we now too often look to them as our wardens and jailers, as
something to fear—a notion they encourage. This mindset has been
displayed at SWAT team conventions held across the country. As one
former police chief said about a convention he attended: “Officers at
the conference were wearing these very disturbing shirts. On the front,
there were pictures of SWAT officers dressed in dark uniforms, wearing
helmets, and holding submachine guns. Below was written: ‘We don’t do
drive-by shootings.’ On the back, there was a picture of a demolished
house. Below was written: ‘We stop.’” SWAT magazine also abounds in ads
featuring soldiers in full military garb and features articles such as
“Polite, Professional, and Prepared to Kill.”
Thus, where once there was a decided difference between the police and
the military and their uses domestically, that line continues to be not
only blurred but, when crossed, is actually sanctioned by the courts.
But the fact remains that the American police force is not a branch of
the military, nor is it a private security force for the reigning
political faction. It is an aggregation of the countless local units
that exist for a sole purpose: to serve and protect the citizens of each
and every American community.
The increasing militarization of the police did not occur suddenly, in a
single precinct. Nor can it be traced back to a single leader or event.
Rather, the pattern is so subtle that most American citizens have hardly
been aware of it. Little by little, police authority has expanded, one
weapon after another has been added to the police arsenal, and one
exception after another has been made to the standards that have
historically restrained police authority. Yet when analyzed as a whole,
this trend toward militarization is undeniable, and when left unchecked,
it amounts to nothing less than the end of American liberty
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