The Changing Face of the Police and the Death of the Fourth Amendment
by John W. Whitehead
by John W. Whitehead: Renewing
the Patriot Act: Who Will Protect Us From Our Government?
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.
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
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
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 ...
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.
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.
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.
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
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."
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.
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
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).
© 2011 The Rutherford Institute
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