9/95 From Peace Officer To Law Enforcement
Gun Owners of America
(written for Guns & Ammo in 1995)
In the 1830’s a French nobleman, Alexis de Toqueville, came to the U.S. to find out how a bunch of frontiersmen were able to operate a government in such an orderly fashion — especially in the light of the terror and violence accompanying the French Revolution that occurred shortly after the American War for Independence. De Toqueville’s book, Democracy in America contains some penetrating insights on the nature of American government and how policing functions were carried out. The following comes from the 1945 Vantage Press edition of his book:
The duties of private citizens are not supposed to have lapsed because the state has come into action, but everyone is ready, on the contrary, to guide and support it. This action of individuals, joined to that of the public authorities, frequently accomplishes what the most energetic centralized administration would be unable to do….
In America the means that the authorities have at their disposal for the discovery of crimes and the arrest of criminals are few. A state police does not exist, and passports are unknown. The criminal police of the United States cannot be compared with that of France; the magistrates and public agents are not numerous; they do not always initiate the measures for arresting the guilty; and the examinations of prisoners are rapid and oral. Yet I believe that in no country does crime more rarely elude punishment. The reason is that everyone conceives himself to be interested in furnishing evidence of the crime and in seizing the delinquent. During my stay in the United States I witnessed the spontaneous formation of committees in a county for a great crime. In Europe a criminal is an unhappy man who is struggling for his life against the agents of power, while the people are merely a spectator of the conflict; in America he is looked upon as an enemy of the human race, and the whole of mankind is against him.
We should at least pause to consider de Toqueville’s observations in light of the “Europeanization” of America’s policing function. Could we give the same report today after the centralization, professionalization and the bureaucratization of law enforcement here? Have we really gained as a result of getting away from our original model?
Changing View of Government, Police
The idea of government popular with the elite in America now views their function as the ruler of the people, indeed, even the creator of the people at least regarding our rights. The creator/creature distinction has just about been reversed. Now we see, without any modification of the Constitution, government asserting itself in areas off limits under our Constitution. In order to enforce this usurpation, the government has created a class of law enforcement employees to increasingly supersede the peace officer of the local community.
Rather than keep the peace by trying to apprehend malefactors who have allegedly broken the peace, law enforcement personnel come from the government to tell the people what they must do — or else. The use of military force to attack the Weaver family in Idaho and the religious followers of David Koresh in Waco are violent examples of the extremes to which government presumes to assert its power. Worse still, the government is increasingly unconcerned about laws prohibiting its choice of methods. The federal law prohibiting the use of military personnel and equipment against Americans was brazenly disregarded at Waco and Ruby Ridge, Idaho. This law, the Posse Comitatus Act (meaning full power of the county), has been on the books for over 100 years to reaffirm the superiority of local police powers over those of the national government.
We should not be surprised that the federal government will brazenly break a law when the Constitution itself is held in little or no repute. The recent debate over H.R. 666 indicates that the problem is a bipartisan one as well.
H.R. 666 is a move to eliminate the exclusionary rule. This rule has been in existence most of the twentieth century. It is widely regarded as the guideline for applying the principle articulated in the Fourth Amendment. This amendment requires probable cause and a warrant in order for the government to invade our persons, homes, possessions and effects. The exclusionary rule says that evidence obtained in violation of the Fourth Amendment cannot be used in trial.
Opponents of the rule, primarily but not exclusively many law and order, pro-gun Republicans, claim that the exclusionary rule is used to allow guilty persons to escape conviction by throwing out incriminating evidence just because it was obtained illegally. In truth, this problem occurs less than one percent of the time.
But to hear opponents of the exclusionary rule, one would think that the rule is the cause of the crime problem plaguing America’s cities. In fact, it is hard not to conclude that these advocates of law and order view the Bill of Rights as a set of loopholes foisted upon an unsuspecting Republic by a clique of proto-ACLU conspirators. In other words, the Bill of Rights, and the Fourth Amendment in particular, are just a set of loopholes for crooks.
The founders had another view. Their idea of the Bill of Rights derived from their search for effective obstacles to government tyranny. The Second Amendment was intended to insure that the people always have military firearms so the government would never have a monopoly of force. The Fourth Amendment was intended to protect the general population against the occasional rogue officer that can plague any police organization. The Fourth Amendment also protects us from rogue policies the government might otherwise seek to impose.
The Redcoats are still coming
The colonists’ experience with King George III’s Red Coats was a schoolroom full of reasons why government must be strictly controlled. The king’s troops, using the unconstitutional power of Writs of Assistance, thought nothing of violating the English common law tradition of “a man’s home is his castle.” Warrantless searches were the order of the day in the years leading up to the War for American Independence.
It is no surprise then, that we have a Fourth Amendment. What is surprising is that President Clinton and conservative, pro-gun Republicans think it is good public policy to have police making random stops of automobiles and warrantless searches of peoples’ homes — sometimes for the same reason, to confiscate another item subject to constitutional protection, namely firearms. It is worth noting that King George’s troops sparked the War for American Independence by their efforts to unconstitutionally confiscate the people’s militia firearms.
H.R. 666 is intended to enshrine all this and more into federal law. The law would be unconstitutional, but that would not be the first such violation. Specifically, H.R. 666 is written to give legislative approval to the current judicial chipping away of the exclusionary rule. As long as a police officer thought his warrant was valid — even if it was not — the evidence so obtained could be used in a trial. But what are we to do under this doctrine if one police officer knowingly gets a warrant on false grounds? As long as the evidence is gained by other officers unaware of this deception (wink, wink) the evidence must be admissible against an accused.
H.R. 666 then gets worse. It establishes the “objective” standard of an officer’s good faith in gathering evidence without a warrant as long as he thought he had probable cause. How is a defendant to ever prove a state of mind? That is as objective as a dream.
Among the attacks on our liberties that we could expect from the passage of H.R. 666 is an expansion of warrantless searches of homes and random stops of cars looking for guns. Confiscate now, ask questions later. After all, the government knows that the people are better off without guns. This attitude is exactly 180o opposite of the role of government in the Constitution.
This cavalier attitude regarding the authority of the federal government to legislate away constitutionally protected liberties has surfaced in the war on drugs. The doctrine of forfeiture is simply a euphemism for confiscation, or government theft. In the name of fighting to stamp out drugs (with a singular lack of success in that regard) the government is winning another battle — the war against the Constitution. Over 50,000 confiscations have been occurring annually, but in eighty percent of the cases, no charges are ever filed.
Forfeiture means that police departments are able to sell the loot and use the money for whatever pleases them. No charges need be filed, for after all, that simply costs money to prosecute. We should not think that this license to steal only gets used against drug kingpins. It gets used against ordinary Americans who, following an illegal search, have “too much money” on them. Or guns. Or whatever target is attractive to a rogue officer or department. The 1994 Crime Bill extended this concept to include multi-jurisdictionalL task forces of local, state and federal police agencies. Moreover, that Crime Bill also cuts prosecutors in to a cut of the loot. This pretty well insures that there will be hardly anyone in the criminal justice system looking out for the interests of the citizens and the Constitution. Why should they look out for them? They will have all been bought off with fenced merchandise.
Are Federal Agents Out of Control?
At the Waco hearing in July one of the few worthwhile panels provided two Texas Rangers an opportunity to testify. They made it clear that rather than launch a military assault on the Davidians they would have taken Koresh up on his invitation to the BATF to come and inspect his premises — something the BATF did not want to do since they had other plans. The Rangers also indicated that they would have walked up to the door and knocked to serve a warrant.
Ranger Captain David Brynes made an eloquent plea at the hearing to warn against a federal police force. Byrnes pointed out that “We federalize everything. Right now, everything from carjacking to evading child support is a federal crime in this country, and that really worries me….” Byrnes continued that “As a law enforcement officer, I worry about that. I think that for law enforcement to be effective it has to be accountable, and to be accountable it has to be controlled at the lowest possible level ….[W]e seem to be vesting a tremendous amount of authority in the FBI to take over every aspect of civil law enforcement in this country….I think it’s detrimental to our continued freedom in this country.”
We should not lull ourselves into thinking that the Waco slaughter and the Ruby Ridge murder of some of Randy Weaver’s family were aberrations. Gun Owners of America produced a video, Breaking the Law in the Name of the Law, several years ago in an effort to get the Congress to take a look at the Bureau of Alcohol, Tobacco and Firearms. Even then they had a long career of lying to get search warrants and tampering with evidence to try and get convictions. But the BATF has not been the only agency to run roughshod over the Bill of Rights.
In 1992, 31 agents from eight federal and local law-enforcement agencies raided the Mailibu home of Donald Scott, the Scott paper heir. The agents of the multi-jurisdictional task force claimed to be looking for marijuana. They shot Scott dead. No marijuana was found. A 1993 report on the incident by Ventura County District Attorney Michael Bradbury said a “primary purpose of the raid was a land grab” by the Forest Service who coveted Scott’s land.
Just last year, another multi-jurisdictional task force comprised of agents from the FBI, Environmental Protection Agency, Coast Guard, Army Corps of Engineers and California Fish and Game Agency raided an herb farm in southern California. Paul Friedman, owner of Greenhouse Fine Herbs, is a member of the Self-Realization Fellowship. During the raid, supposedly over charges of river pollution an threats to an endangered species, agents asked the employees if they were a member of Friedman’s church and where they hid the guns. Workers at the farm indicated that the agents were more interested in their religious beliefs than in the environmental complaint.
The Washington Times reported that U.S. Attorney Alan Bersin views the pollution indictments against the herb farm as “a significant step in the government’s commitment to improving the quality of life.” Mr. Friedman denies polluting the river which he called a “sacred place,” and claims the garbage washed there during heavy rains was dumped by local residents. Even if Friedman were totally guilty, one can see the problem here that Captain Byrnes drew our attention to. Does littering a local river really justify 70 agents standing ready to shoot the suspects?
Obituary for Posse Comitatus
The Posse Comitatus law which was enacted over 100 years ago to prohibit the use of military personnel and equipment from being used against Americans has already been whittled down in the name of fighting the war on drugs. An exception has been made to the Posse Comitatus prohibition in cases where federal police want to use the military in a drug bust. Barbara Kennelly (D-CT) has proposed legislation that would establish a 2,500 man rapid deployment attack force. Whatever the name, this is still a military group; But since the rapid deployment force would not be under the control of the military, the Posse Comitatus Act does not apply (wink, wink).
The President, along with Rep. Charles Schumer (D-NY) immediately saw the hysteria about the horrible crime committed by the Oklahoma City bombers as a way of demonizing all gun owners and militia members. The effort is a dream situation for the anti-gunners. Accuse law-abiding gun owners of being no different than the murderous bombers in Oklahoma. It is doubtful, though, that the President would welcome a similar comparison to be made between the Weathermen who bombed a building at the University of Wisconsin and anti-war protesters like then-student Clinton. Lawful, constitutionally protected action, should not be equated with criminal activity just because it is unpopular. Otherwise, we would then have no defense of the Civil Rights movent under Martin Luther King, Jr. because of the sometimes murderous assaults of the Black Panthers. Or, no defense of Earth Day marchers because of the environmental extremists who have put spikes in trees to kill or maim loggers as they cut trees down.
The attack on the Bill of Rights flying under the title of Counterterrorism would seriously violate the First and Fourth Amendments. The President would be able on his own, with no appeal permitted, to classify any organization as a terrorist organization. Then their assets would be under government control, along with all of their papers. Their fundraising could be shut down, thus strangling their voice of communication with the public. And the bill greatly expands the government’s ability to snoop on our telephone conversations.
Such legislation would have been objected to if directed against the civil rights or the anti-war movements of the past, or the environmental movements of the present. Surely the right to organize and march does not end because militants and murders chose to utter some of the same words used by peaceful groups operating lawfully — even if they are gun owners.
Our view of government determines what kind of, and how much, freedom we will enjoy. If we understand America to be a land where the people are largely self-governed, then the civil government will be small and a servant of the people. If we understand America to be like the other countries of the world, then an elite will be in charge of managing the people, and the police will be their enforcers.