Saturday, June 4, 2011

THE DEATH (line by line) of THE U.S. CONSTITUTION

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

No comments:

Post a Comment