The Changing Face of the Police and the Death of the Fourth Amendment

by John W. Whitehead

Recently by John W. Whitehead: Renewing the Patriot Act: Who Will Protect Us From Our Government?

"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 defence 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.

May 24, 2011

Constitutional attorney and author John W. Whitehead [send him mail] is founder and president of The Rutherford Institute. He is the author of The Change Manifesto (Sourcebooks).

Copyright © 2011 The Rutherford Institute

The Best of John W. Whitehead