Saturday, December 06, 2003

Roger Roots at Constitution.Org - Are Cops Constitutional? - maybe not. There certainly weren't any professional police in America until half a century after the Constitution's ratification, and our Founding Fathers would likely have been appalled with our modern police state. Long and scholarly (lots of footnotes) article. [unknown] Abstract: Police work is often lionized by jurists and scholars who claim to employ "textualist" and "originalist" methods of constitutional interpretation. Yet professional police were unknown to the United States in 1789, and first appeared in America almost a half-century after the Constitution's ratification. The Framers contemplated law enforcement as the duty of mostly private citizens, along with a few constables and sheriffs who could be called upon when necessary. This article marshals extensive historical and legal evidence to show that modern policing is in many ways inconsistent with the original intent of America's founding documents. The author argues that the growth of modern policing has substantially empowered the state in a way the Framers would regard as abhorrent to their foremost principles. Conclusion: The United States of America was founded without professional police. Its earliest traditions and founding documents evidenced no contemplation that the power of the state would be implemented by omnipresent police forces. On the contrary, America's constitutional Framers expressed hostility and contempt for the standing armies of the late eighteenth century, which functioned as law enforcement units in American cities. The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Framers. The implications of this altered balance of power are far-reaching, and should invite consideration by judges and legislators who concern themselves with constitutional questions. Another excerpt: Perhaps the first distinction between the rights of citizen and constabulary came in the form of increased power to arrest. Early in the history of policing, courts held that an officer could arrest if he had "reasonable belief both in the commission of a felony and in the guilt of the arrestee. This represented a marginal yet important distinction from the rights of a "private person," who could arrest only if a felony had actually been committed. It remains somewhat of a mystery, however, where this distinction was first drawn. Scrutiny of the distinction suggests it arose in England in 1827 -- more than a generation after ratification of the Bill of Rights in the United States. Moreover, the distinction was illegitimate from its birth, being a bastardization of an earlier rule allowing constables to arrest upon transmission of reasonably reliable information from a third person. The earlier rule made perfect sense when many arrests were executed by private persons. "Authority" was a narrow defense available only to those who met the highest standard of accuracy. But when Americans began to delegate their law enforcement duties to professionals, the law relaxed to allow police to execute warrantless felony arrests upon information received from third parties. For obvious reasons, constables could not be required to be "right" all of the time, so the rule of strict liability for false arrest was lost. The tradeoff has had the effect of depriving Americans of certainty in the executions of warrantless arrests. Judges now consider only the question of whether there was reasonable ground to suspect an arrestee, rather than whether the arrestee was guilty of any crime. This loss of certainty, when combined with greater deference to the state in most law enforcement matters, has essentially reversed the original intent and purpose of American law enforcement that the state act against stern limitations and at its own peril. Because arrest has become the near exclusive province of professional police, Americans have fewer assurances that they are free from unreasonable arrests. Distinctions between the privileges of citizens and police officers grew more rapidly in the twentieth century. State and federal lawmakers enshrined police officers with expansive immunities from firearm laws and from laws regulating the use of equipment such as radio scanners, body armor, and infrared scopes. Legislatures also exempted police from toll road charges, granted police confidential telephone numbers and auto registration, and even exempted police from fireworks regulations. Police are also protected by other statutory immunities and protections, such as mandatory death sentences for defendants who murder them, reimbursement of moving expenses when officers receive threats to their lives, and even special protections from assailants infected with the AIDS virus. Officers who illegally eavesdrop, wiretap, or intrude upon privacy are protected by a statutory (as well as case law) "good faith" defense, while private citizens who do so face up to five years in prison. The tendency of legislatures to equip police with ever-expanding rights, privileges and powers has, if anything, been strengthened rather than limited by the courts. But this growing power differential contravenes the principles of equal citizenship that dominated America's founding. The great principle of the American Revolution was, after all, the doctrine of limited government. Advocates of the Bill of Rights saw the chief danger of government as the inherently aristocratic and disparate power of government authority. Founding-era constitutions enunciated the principle that all men are "equally free" and that all government is derived from the people. RESISTING ARREST Nothing illustrates the modern disparity between the rights and powers of police and citizen as much as the modern law of resisting arrest. At the time of the nation's founding, any citizen was privileged to resist arrest if, for example, probable cause for arrest did not exist or the arresting person could not produce a valid arrest warrant where one was needed. As recently as one hundred years ago, but with a tone that seems as if from some other, more distant age, the United States Supreme Court held that it was permissible (or at least defensible) to shoot an officer who displays a gun with intent to commit a warrantless arrest based on insufficient cause. Officers who executed an arrest without proper warrant were themselves considered trespassers, and any trespassee had a right to violently resist (or even assault and batter) an officer to evade such arrest. Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations. Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody. The doctrine of non-resistance against unlawful government action was harshly condemned at the constitutional conventions of the 1780s, and both the Maryland and New Hampshire constitutions contained provisions denouncing nonresistance as "absurd, slavish, and destructive of the good and happiness of mankind." By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance, (2) criminalized the resistance of any officer acting in his official capacity, (3) eliminated the requirement that an arresting officer present his warrant at the scene, and (4) drastically decreased the number and types of arrests for which a warrant is required. Although some state courts have balked at this march toward efficiency in favor of the state, none require the level of protection known to the Framers. But the right to resist unlawful arrest can be considered a constitutional one. It stems from the right of every person to his bodily integrity and liberty of movement, among the most fundamental of all rights. Substantive due process principles require that the government interfere with such a right only to further a compelling state interest -- and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest. Thus, the advent of professional policing has endangered important rights of the American people. [End the War on Freedom] The author makes some good points. Personally I'm opposed to the Police as they exist today. All the individual policemen I know are basically decent people, but the concept of the police has been perverted into something that is inherently destructive of liberty. 9:00:04 PM    comment () U.S. Code - 18 USC 2236 - Mr. Roots said in his article above that no one has ever been convicted under this statute. What a shame. Sec. 2236. - Searches without warrant Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search, or maliciously and without reasonable cause searches any other building or property without a search warrant, shall be fined for a first offense not more than $1,000; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both. This section shall not apply to any person - (a) serving a warrant of arrest; or (b) arresting or attempting to arrest a person committing or attempting to commit an offense in his presence, or who has committed or is suspected on reasonable grounds of having committed a felony; or (c) making a search at the request or invitation or with the consent of the occupant of the premises [End the War on Freedom] If this law were ever enforced (and baring an armed revolution, it won't be) a good many thugs in uniform would find themselves fined or imprisoned. However, it's also important to remember that the police routinely trick people who don't know they can refuse into giving "consent." 8:39:21 PM    comment ()

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