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Tuesday, December 1, 2015

Modern Police Tactics: The Fourth Amendment Is on Life Support

June 1, 2010

By John W. Whitehead
The Rutherford Institute

“Soon as they hit the window, I hit the floor and went to reach for my granddaughter. I seen the light leave out her eyes. I knew she was dead. She had blood coming out of her mouth. Lord Jesus, I ain’t never seen nothing like that in my life.”—Mertilla Jones, Aiyana’s grandmother

It was 12:40 am on Sunday, May 16, 2010. Twenty-five-year-old Charles Jones had just gone to bed after covering his 7-year-old daughter Aiyana with her favorite blanket. The little girl was asleep on the living room sofa, which was positioned under a window. Her grandmother was nearby. Suddenly, the silence of the night was shattered by a flash grenade thrown through the living room window, followed by the sounds of police bursting into the apartment and a gun going off. Rushing into the room, Charles found himself tackled by police and forced to lie on the floor, his face in a pool of blood. His daughter Aiyana’s blood.

It would be hours before Charles would be informed that his daughter was dead. According to news reports, the little girl was shot in the neck by the lead officer’s gun after he collided with Aiyana’s grandmother during a police raid gone awry. The 34-year-old suspect the police had been looking for would later be found during a search of the building. Ironically, a camera crew shadowing the police SWAT team for the reality television show “The First 48” (cop shows are among the most popular of the television reality shows) caught the unfolding tragedy on film.

As far-fetched as what happened to the Joneses may sound, they are not the only American family to suffer the devastating consequences of a police raid gone awry. According to Radley Balko’s Overkill: The Rise of Paramilitary Police Raids in America (2006), over 40,000 SWAT team raids are carried out annually in this country, striking at the very core of our constitutional freedoms. As Balko writes, “There’s an old Cold War saying commonly attributed to Winston Churchill…that goes, ‘Democracy means that when there’s a knock on the door at 3 a.m., it’s probably the milkman.’ The idea is that free societies don’t send armed government agents dressed in black to raid the private homes of citizens for political crimes.”

Regrettably, we live in an age where police raids are on the rise, modern police surveillance is more invasive than ever, and the government has unfettered access into the most private matters of our lives. Thus, the reality we must contend with is one in which the Fourth Amendment, which guarantees that we are to be free from unreasonable searches or seizures by the government, is on life support. Yet those who drafted the Bill of Rights, the first ten amendments to the Constitution, considered freedom in one’s home the most essential liberty.

Deeply concerned about preserving personal liberty and property rights, the Framers believed those rights to be of paramount importance—even over public safety. In such an environment, citizens were seen as equals with law enforcement officials, and authorities were almost never permitted to enter one’s home without permission. Modern SWAT team raids where the police crash into the homes of Americans would have been seen as the essence of tyranny. Indeed, it was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen’s home. And unlike today, early Americans could resist arrest when a police officer tried to restrain them without a proper justification or warrant—which they had a right to read before being arrested.

This clear demand for a right to privacy stemmed from a deep-seated distrust of those in power and their potential to abuse the authority entrusted to them by the citizenry.  Over time, however, that instinctive distrust of government has given way to a false sense of security rooted in the belief that the government is looking out for our best interests. Thus, as our complacency about the need to actively and personally defend our freedoms has increased, the government’s commitment to respecting our Fourth Amendment rights has dissipated.

To our detriment, Americans today seem more attuned to what’s happening on trendy reality TV shows than the goings-on in their federal government. Distracted by their gadgets and caught up in their virtual communities, many Americans have failed to notice what’s happening in their own backyards—with the transformation of law enforcement officials into paramilitary police forces being one of the most alarming developments in recent years. As Balko points out, “Today, every decent-sized city has a SWAT team, and most have several. Even absurdly small towns like Eufaula, Ala., (population 13,463) have them… Where their purpose once was to defuse an already violent situation, today they break into homes to look for illicit drugs, creating violence and confrontation where there was none before.”

While we’re fortunate to have many law enforcement agents who strive to honor and respect the Constitution, to our misfortune, we have failed to raise objections to the mixed messages being sent when those same agents are sent to patrol our communities dressed as storm troopers, equipped with invasive technologies and sophisticated weaponry, and authorized to use military tactics in their efforts to uphold the law. In fact, even the equipment used by police during routine traffic stops, such as sophisticated flashlights containing super-sensitive detectors that sense the contents of your breath, has contributed to the steady erosion of our freedoms. Despite our having a constitutional right to privacy and to not be subjected to unreasonable searches, police conspicuously situate these devices in front of our faces and into our personal space, and we are left with no say in the matter.

Unfortunately, the U.S. Supreme Court has been a willing accomplice in this depreciation of our essential liberties, handing down rulings that provide the government with endless ways to pervert the letter and spirit of the Fourth Amendment. Such rulings, issued in the so-called name of police safety, national security and citizen protection, have given rise to language the Framers never foresaw nor intended, such as protective sweep exception, hot pursuit exception, inevitable discovery exception and good faith exception, to name just a few.

Yet there are some things which no decent human being can remain silent about. Americans should be outraged when police officers use tasers on defenseless children, autistic teenagers, pregnant women and senior citizens—all incidents that have been in the news in recent years.  We should be up in arms over what happened to young Aiyana in Detroit. No family should have to suffer the loss of a child because police officers got carried away during a SWAT team raid. And no community should feel threatened by the presence of law enforcement officials patrolling their streets.

Where does this leave us? Having largely relinquished control over our liberties and our lives to the government, we have come to something of an impasse in terms of our freedoms. The only way forward, especially if we are to revive our ailing Fourth Amendment and restore the balance of power between citizen and government, is to reclaim our rightful sovereignty over our possessions and our lives. That is easier said than done, however. As history shows, power, once handed over to the government, is not easily wrested

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute.

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