Are Cops Constitutional?

[KABA556]

[Great Article/Essay]

http://www.constitution.org/lrev/roots/cops.htm

Seton Hall Constitutional L.J. 2001, 685

ARE COPS CONSTITUTIONAL?

Roger Roots*

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.

PART I

INTRODUCTION...................................... ..........................686

THE CONSTITUTIONAL TEXT.............................................. 688

PRIVATE PROSECUTORS....................................... .............689

LAW ENFORCEMENT AS A UNIVERSAL................................692

POLICE AS SOCIAL WORKERS........................................... ..695

THE WAR ON CRIME............................................. .............696

THE DEVELOPMENT OF DISTINCTIONS................................698

RESISTING ARREST............................................ ................701

THE SAFETY OF THE POLICE PROFESSION............................711

PROFESSIONALISM?.................................. ........................713

DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE........716

COPS NOT COST-EFFECTIVE DETERRENT.............................721

PART II

POLICE AS A STANDING ARMY

[SanPedroShooter]

Interesting.

[Jack's Smirking Revenge]

A convicted felon thinks that police are unconstitutional...shocker...no bias there.

[KABA556]

A convicted felon thinks that police are unconstitutional...shocker...no bias there.

Are you saying that *I* am a convicted felon or that the author of the article is a convicted felon?

[glockman19]

Interesting read.

[SVT-40]

Are you saying that *I* am a convicted felon or that the author of the article is a convicted felon?

The author..

From his Bio..

"Dr. Roger Roots has also taught criminal justice and sociology classes at the college level, a pursuit he greatly enjoys. He especially enjoys teaching legal history and constitutional criminal procedure. Although he began his adult life as a high school dropout and an ex-convict, he now holds a Bachelors degree in Sociology from Montana State University"

[SactoDoug]

I am reading it now. It is a long read but so far interesting. I am a history buff. I already knew that police forces were relatively modern but I never contemplated how the criminal justice system functioned prior to them.

[KABA556]

The author..

From his Bio..

"Dr. Roger Roots has also taught criminal justice and sociology classes at the college level, a pursuit he greatly enjoys. He especially enjoys teaching legal history and constitutional criminal procedure. Although he began his adult life as a high school dropout and an ex-convict, he now holds a Bachelors degree in Sociology from Montana State University"

He could have done 3-4 months in county jail for misdemeanors... Ex-convict does not automatically mean a convicted felon.

You can do up to one year in state prison for certain misdemeanor offenses.

[KABA556]

This part is especially meaningful, considering what Indiana's Supreme Court just did...


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.92 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.93 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.94

Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations.95 Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody.96 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."97

By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance,98 (2) criminalized the resistance of any officer acting in his official capacity,99 (3) eliminated the requirement that an arresting officer present his warrant at the scene,100 and (4) drastically decreased the number and types of arrests for which a warrant is required.101 Although some state courts have balked at this march toward efficiency in favor of the state,102 none require the level of protection known to the Framers.103

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.104 Substantive due process principles require that the government interfere with such a right only to further a compelling state interest105 — and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest.106 Thus, the advent of professional policing has endangered important rights of the American people.

The changing balance of power between police and private citizens is illustrated by the power of modern police to use violence against the population.107

As professional policing became more prevalent in the twentieth century, police use of deadly force went largely without clearly delineated guidelines (outside of general tort law).108 Until the 1970s, police officers shot and killed fleeing suspects (both armed and unarmed) at their own discretion or according to very general department oral policies.109 Officers in some jurisdictions made it their regular practice to shoot at speeding motorists who refused orders to halt.110 More than one officer tried for murder in such cases — along with fellow police who urged dismissals — argued that such killings were in the discharge of official duties.111 Departments that adopted written guidelines invariably did so in response to outcries following questionable shootings.112 Prior to 1985, police were given near total discretion to fire on the public wherever officers suspected that a fleeing person had committed a felony.113 More than 200 people were shot and killed by police in Philadelphia alone between 1970 and 1983.114

In 1985, the United States Supreme Court purported to stop this carnage by invalidating the use of deadly force to apprehend unarmed, nonviolent suspects.115 Tennessee v. Garner116 involved the police killing of an unarmed juvenile burglary suspect who, if apprehended alive, would likely have been sentenced to probation.117 The Court limited police use of deadly force to cases of self defense or defense of others.118

As a practical matter, however, the Garner rule is much less stringent. Because federal civil rights actions inevitably turn not on a strict constitutional rule (such as the Garner rule), but on the perception of a defendant officer, officers enjoy a litigation advantage over all other parties.119 In no reported case has a judge or jury held an officer liable who used deadly force where a mere "reasonable" belief that human life was in imminent danger existed.120 Some lower courts have interpreted Garner to permit deadly force even where suspects pose no immediate and direct threat of death or serious injury to others.121 The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability of an agent who shot and killed an innocent person to prevent another person from retreating to "take up a defensive position," drawing criticism from Judge Kozinski that the court had adopted the "007 standard" for police shootings.122

Untold dozens, if not hundreds, of Americans have been shot in the back while fleeing police, even after the Garner decision. Police have shot and killed suspects who did nothing more than make a move,123 reach for their identification too quickly,124 reach into a jacket or pocket,125 "make a motion" of going for a gun,126 turn either toward or away from officers,127 'pull away' from an officer as an officer opened a car door,128 rub their eyes and stumble forward after a mace attack,129 or allegedly lunge with a knife,130 a hatchet,131or a ballpoint pen.132 Cops have also been known to open fire on and kill persons who brandished or refused to drop virtually any hand-held object — a Jack Daniel's whiskey bottle,133 a metal rod,134 a wooden stick,135 a kitchen knife (even while eating dinner),136 a screwdriver,137 a rake138 — or even refused an order to raise their hands.139

Cops who shoot an individual holding a shiny object that can be said to resemble a gun — such as a cash box,140 a shiny silver pen,141 a TV remote control,142 or even a can opener143 — are especially likely to avoid liability. In line with this defense, police officers nationwide have been caught planting weapons on their victims in order to make shootings look like self defense.144 In one of the more egregious examples ever proven in court, Houston police were found during the 1980s to have utilized an unofficial policy of planting guns on victims of police violence .145 Seventy-five to eighty percent of all Houston officers apparently carried "throw-down" weapons for such purposes .146 Only the dogged persistence of aggrieved relatives and the firsthand testimony of intrepid witnesses unraveled the police cover-up of the policy.147

Resisting arrest, defending oneself, or fleeing may also place an American in danger of being killed by police.148 Although the law clearly classifies such killings as unlawful, police are rarely made to account for such conduct in court.149 Only where the claimed imminent threat seems too contrived — such as where an officer opened fire to defend himself from a pair of fingernail clippers150 — or where abundant evidence of a police cover-up exists, will courts uphold damage awards against police officers who shoot civilians.151

As Professor Peter L. Davis points out, there is no good reason why police should not be liable criminally for their violations of the criminal code, just as other Americans would expect to be (and, indeed, as the constables of the Founding Era often were).152 Yet in modern criminal courts, police tend to be more bulletproof than the Kevlar vests they wear on the job. Remember that the district attorneys responsible for prosecuting police for their crimes are the same district attorneys who must defend those officers in civil cases involving the same facts.153 Under the Framers' common law, this conflict of interest did not arise at all because a citizen grand jury — independent from the state attorney general — brought charges against a criminal officer, and the officer's victim prosecuted the matter before a petit jury.154 But the modern model of law enforcement provides no real remedy, and no ready outlet for the law to work effectively against police criminals. Indeed, modern policing acts as an obstruction of justice with regard to police criminality.

The bloodstained record of shootings, beatings, tortures and mayhem by American police against the populace is too voluminous to be recounted in a single article.155 At least 2,000 Americans have been killed at the hands of law enforcement since 1990.156 Some one-fourth of these killings — about fifty per year — are alleged by some authorities to be in the nature of murders.157 Yet only a handful have led to indictment, conviction and incarceration.158 This is true even though most police killings involve victims who were unarmed or committed no crime.159

Killings by police seem as likely as killings by death-row murderers to demonstrate extreme brutality or depravity. Police often fire a dozen or more bullets at a victim where one or two would stop the individual.160 Such indicia of viciousness and ferocity would qualify as aggravating factors justifying the death penalty for a civilian murderer under the criminal laws of most states.161

From the earliest arrival of professional policing upon America's shores, police severely taxed both the largess and the liberties of the citizenry.162 In early municipal police departments, cops tortured, harassed and arrested thousands of Americans for vagrancy, loitering, and similar "crimes," or detained them on mere "suspicion."163 Where evidence was insufficient to close a case, police tortured suspects into confessing to crimes they did not commit.164 In the name of law enforcement, police became professional lawbreakers, "constantly breaking in upon common law and ... statute law."165 In 1903 a former New York City police commissioner remarked that he had seen "a dreary procession of citizens with broken heads and bruised bodies against few of whom was violence needed to affect an arrest.... The police are practically above the law."166


92 See Coyle v. Hurtin, 10 Johns. 85 (N.Y. 1813).

93 See Bad Elk v. United States, 177 U.S. 529 (1900).

94 See Rex v. Gay, Quincy Mass. Rep. 1761-1772 91 (Mass. 1763) (acquitting assault defendant who beat a sheriff when sheriff attempted to arrest him pursuant to invalid warrant).

95 See Wolf v. Colorado, 338 U.S. 25, 30 n. 1, 31 n. 2 (1948) (citing cases upholding right to resist unlawful search and seizure).

96 See Adams v. State, 48 S.E. 910 (Ga. 1904).

97 See MD. CONST. of 1776, art. IV; N.H. Const. of 1784, art. X.

[SVT-40]

He could have done 3-4 months in county jail for misdemeanors... Ex-convict does not automatically mean a convicted felon.

You can do up to one year in state prison for certain misdemeanor offenses.

His own use of the term "convict" is telling... The only "convicts" I have ever known were felons... AND repeat felons no less....

Please tell us when a conviction for a misdemeanors can land you in a state prison?????

[KABA556]

His own use of the term "convict" is telling... The only "convicts" I have ever known were felons... AND repeat felons no less....

Please tell us when a conviction for a misdemeanors can land you in a state prison?????

In Ohio a Misdemeanor is a crime punishable by up to 180 days imprisonment. It does not specify where the imprisonment has to take place.

Presumably they could sentence somebody to six months in state prison.

[STAGE 2]

Without reading the article, if you're asking whether state LEO's are permitted under the federal constitution you probably failed civics.

[KABA556]

Without reading the article, if you're asking whether state LEO's are permitted under the federal constitution you probably failed civics.

The short answer is that police are an unconstitutional quasi standing army quartered amongst us in peace-time in violation of the 3rd Amendment, if not explicit violation then violation of the spirit of the Amendment.


The idea of citizens having to provision soldiers and allow them to be quartered amongst the town was repugnant to the Founders.

They would be equally disgusted by the idea of assessing citizens taxes varying from 5% to 20% to pay for the salaries and upkeep of large numbers of militarized police stationed throughout the community.



I might have failed Statist Authoritarianism 101 or Stalinism 101 if there were such a class...

I passed US Government and I passed all of my law classes, with flying classes.

[SVT-40]

The short answer is that police are an unconstitutional quasi standing army quartered amongst us in peace-time in violation of the 3rd Amendment, if not explicit violation then violation of the spirit of the Amendment.

The Third Amendment to the U.S. Constitution reads:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.



I guess you did not actually read the 3rd Amendment......

Because if you had you would realize just how silly and plain incorrect your opinion is....

There is nothing about the police or any military service member living in any community or "amongst us"...

In fact the police are citizens just like any other, as so many here point out, and not soldiers...

The idea of citizens having to provision soldiers and allow them to be quartered amongst the town was repugnant to the Founders.

Actually our wise founding fathers Abhorred having soldiers housed in private residences without permission....

This was in response to "quartering acts" which the British forced upon the colonists.

http://en.wikipedia.org/wiki/Quartering_Acts

They would be equally disgusted by the idea of assessing citizens taxes varying from 5% to 20% to pay for the salaries and upkeep of large numbers of militarized police stationed throughout the community.

Yeah those lousy cops buying their own homes are really the whole problem...

I might have failed Statist Authoritarianism 101 or Stalinism 101 if there were such a class...

I passed US Government and I passed all of my law classes, with flying classes.

I really don't know what to say other than sometime after your government classes which you passed with...

"flying classes".

Something happened which caused you to become a bit paranoid, and hateful of some of your fellow citizens.

Additionally you seem to have a issue comprehending the elegant simplicity of the third amendment.


"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."


The amendment only prevents soldiers being quartered in any house without consent of the owner during peace time, and in the time of war as prescribed by law......

Your post is a textbook example of anti police bigotry...

[KABA556]

The Third Amendment to the U.S. Constitution reads:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.



I guess you did not actually read the 3rd Amendment......

Because if you had you would realize just how silly and plain incorrect your opinion is....

There is nothing about the police or any military service member living in any community or "amongst us"...

In fact the police are citizens just like any other, as so many here point out, and not soldiers...







Actually our wise founding fathers Abhorred having soldiers housed in private residences without permission....

This was in response to "quartering acts" which the British forced upon the colonists.

http://en.wikipedia.org/wiki/Quartering_Acts

Yeah those lousy copy buying their own homes are really the whole problem...





I really don't know what to say other than sometime after your government classes which you passed with...

"flying classes".

Something happened which caused you to become a bit paranoid, and hateful of some of your fellow citizens.

Additionally you seem to have a issue comprehending the elegant simplicity of the third amendment.


"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."


The amendment only prevents soldiers being quartered in any house without consent of the owner during peace time, and in the time of war as prescribed by law......

Your post is a textbook example of anti police bigotry...

Flying colors, it is late and I've been up all day doing work and I am somewhat ill/sick today... Only a creep harps on typos and simple word mistakes...


It is almost 9 pm EST and I have been up since 6 am EST.