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Sunday, July 7, 2013

Militarized Police, the Third Amendment, and the Rule of Law

Radley Balko publishes often about the militarization of the police and botched no-knock raids. He believes such raids are a public menace. He warns that police forces--particularly SWAT teams--are overused and used inappropriately, and that it is a danger to our life and liberty. Most recently, Balko authored an article published by the ABA Journal that explores the history of the militarization of the police, together with a slide-show of 10 notorious police raids gone wrong. From the article:

In a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the U.S. Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the framers, professional police officers were unknown,” Roots writes.


The founders and their contemporaries would probably have seen even the early-19th-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history—early American statesmen like Madison, Washington and Adams were well-versed in the history of such armies in Europe, especially in ancient Rome.


If even the earliest attempts at centralized police forces would have alarmed the founders, today’s policing would have terrified them. Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.


Police departments across the country now sport armored personnel carriers designed for use on a battlefield. Some have helicopters, tanks and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units like the Navy SEALs or Army Rangers. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops—despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.


Balko goes on to note the history of the Third (no quartering of soldiers), Fourth (requiring a warrant for a search or seizure), and Tenth Amendment (reserving uninnumerated powers and rights reserved to the states and the people) arose out of the British use of the military for law enforcement purposes, quartering troops in private homes, and allowing troops to raid residences under the slimmest of legal reasons and keep any goods seized as booty--a type of early civil forfeiture. He then goes on to describe the history of the rise of SWAT teams and their slow, but steady expansion, from large city forces to small towns and counties; and their mission creep from being used only for the deadliest of hostage situation to frequent use for inconsequential drug raids and even enforcement of administrative regulations. Its a lengthy article, but well worth the read.

Glenn Reynolds, on a related note, has published an article in USA Today that discusses the possible application of the Third Amendment to the police forcing their way into a home to use it as an observation post. He describes the police actions:
Now we see another Third Amendment case, from Henderson, Nev., in which the plaintiffs, the Mitchell family, claim that Henderson police seized their home -- battering the door open with a battering ram -- so as to secure an advantageous position in addressing a domestic violence report involving a neighboring house. The police were quite rude -- calling the inhabitants "assholes" and shooting both Anthony Mitchell and his dog with a pepper-ball gun -- before setting up a lookout post in the house. 
Should the Third Amendment have something to say about this? Well, it speaks only to "troops," not police -- but then, professional police in the modern sense hadn't been invented at the time of the framing. And given the extreme militarization of police nowadays -- with Nomex coveralls, body armor, AR-15 rifles, grenades, armored vehicles, etc., all documented in Radley Balko's new book, The Rise of the Warrior Cop, -- maybe that's a distinction without a difference anyway. Armed minions of the state seizing your home by force seem close enough to "troops" for me. 
Personally, I think we need to return to the sense of one's home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and -- unless they have a warrant -- should have to depart if the homeowner doesn't want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity. 
Some may protest that this rule will make it harder to go after drug dealers and such, who may flush their drugs away before police can get in. To which I respond, tough. Protecting Americans' homes from invasions by armed hooligans is more important than protecting prosecutions under the drug war. One would think, in fact, that preventing such invasions is the first duty of police. It's unfortunate that so many in law enforcement seem to have forgotten that.
Let me pull in another couple articles that I think demonstrate a common theme.

 The New York Times reports that the FISA court has secretly expanded the powers of the NSA. From the article:
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
I've previously referred to the interaction between the FISA court and the NSA and FBI as a conspiracy. Well, I'm going to be blunt. The FISA court has usurped the Constitution--and not just as to the Fourth Amendment. What the FISA court has done is to elevate itself to the position of the U.S. Supreme Court. Why do I say this? Because they are a secret court. Their decisions and deliberations are secret. The proceedings before the court are not adversarial (i.e., the party who is the subject of the warrants they authorize is not notified and does not have an opportunity to contest the requests). Consequently, there is effectively no appeal or review of the FISA court by higher courts. It has placed itself as the final arbiter of the interpretation of FISA and its interaction with the Fourth Amendment.

This probably wasn't intended. The FISA Court was supposed to provide a Fourth Amendment review of warrant applications similar to those performed everyday across the nation by judges and magistrates in other matters. But, here is the issue. The Court has obviously moved beyond simply reviewing warrant applications to taking argument, holding hearings, and issuing decisions. I would suggest that if a warrant application is so questionable that it requires a lengthy and laborious exploration of the contours and limits of the law, it should be denied. Particularly when there is no meaningful public oversight of the Court. (And, by public, I don't mean another government agency or Congressional committee, but actual proceedings that are open to the public and the media).

In other news, another high-profile killing linked to firearms provided by the ATF to Mexican drug cartels (aka, Gun Walker). In this case, the victim was Luis Lucio Rosales Astorga, the police chief in the city of Hostotipaquillo, in the state of Jalisco, Mexico. 

What these stories all have in common is the collapse of the rule of law (as opposed to rule by law) in the United States. The difference between the two, as I noted in my prior article, is that," under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion." This comports with A.V. Dicey's delineation of three principles of the rule of the law, the third of which was: "(3) fundamental rights of the citizens (freedom of the person, freedom of association, freedom of speech) are rooted in the natural law, and are not dependent on any abstract constitutional concept, declaration, or guaranty."

The militarization of the police and violent police raids are a result of the exaltation of legalistic interpretations of the Fourth Amendment over the natural law embodied in the Fourth Amendment--to be free from government intrusion, the right to be left alone from the government, and the sanctity of the home. The FISA Court and NSA/FBI debacle is an example of "rule by law," where the law is being used to suppress rights in a legalistic fashion. Gun Walker embodies a similar attitude that if something is not prohibited by law, it must be legal for the government to undertake. 

The government needs to be reminded that it is our servant, not our master. Our politicians should hear this. We should keep this in mind when we vote or otherwise engage in the political process. 

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