Cops Considered Unconstitutional

Submitted by Bill St. Clair on Sat, 06 Dec 2003 13:00:00 GMT
From highroad:
"You cannot force me to agree with you. You can force me to act as though I agree with you -- but then you'll have to watch your back. All the time." -- El Neil

Take Back the Media - Army of One - Support the troops. Bring them home. 1 meg Flash animation. Music by The Cranberries. [smith2004]

Leo Standora at The Daily News - The most un-pop-ular bust of all? - Ticketed in the Big Apple for popping a balloon. Really. Sheesh. [villagechoice]

A rash of silly summonses made headlines earlier this year for transgressions such as using multiple subway seats or sitting on a milk crate on the sidewalk. A pregnant woman was even ticketed for resting on subway steps. Police brass have consistently denied there is a ticket quota.

Drug War Chronicle - Federal Appeals Court Rules Traffic Stop Drug Dog Search Illegal - I thought the courts had already, abominably, ruled that searching just because a dog barks is OK. I guess the delay in this case changed their minds. Anyway, good news, albeit tiny. [drcnet]

The court also took pains to make clear that exercising one's right to refuse to consent to a search is no grounds for calling in the dogs. "In addition... Officer Edwards immediately called in the drug dog after Boyce refused to allow a search," the court noted. "The immediacy of Edwards' response also indicates to us that the refusal to consent was the deciding factor for Edwards to continue Boyce's detention. The police cannot base their decision to prolong a traffic stop on the detainee's refusal to submit to a search."

Melody Brumble at The Shreveport Times - Bossier School Board upholds Advil expulsion - Amanda Stiles, a sophomore, was expelled from a Bossier City high school. More zero intelligence in Louisiana. I'm getting tired of writing these letters... So much stupidity, so little time. Parkway High requires its students to wear uniforms, already a bad sign. Principal Joe Huffman:, Superintendent Ken Kruithof: [smith2004]

The search of Stiles' purse that turned up the medication came after a tip from a teacher about a student smoking at school. Herpin said her daughter was part of a group that was searched in response to the tip.

Kruithof said a teacher identifed Stiles as the student smoking a cigarette and that Stiles ran into a restroom, where a teacher searched only her purse.

No cigarettes or lighters were found. Stiles was not disciplined for tobacco-related violations.

Students caught smoking usually are suspended.

"I think a one-year expulsion for an over-the-counter medicine is pretty severe," Herpin said.

Stiles said she carried the medicine in her purse because she got frequent headaches.

"I just never thought about the fact that I could be searched. I think we're old enough to know how many (pills) we can take without overdosing or being in danger."
I sent the following email and a similar letter to the editor of the Shreveport Times:
Date: Fri, 05 Dec 2003 20:20:04 -0500
To: Ken Kruithof <>, Joe Huffman <>
Subject: Amanda Stiles' Expulsion
From: "Bill St. Clair" <>

Mr. Fruithof and Mr. Huffman:

I read, in the internet version of the Shreveport Times, about the expulsion of Amanda Stiles from Parkway High for possession of an Advil tablet. Another strike by the zero intelligence nazis.

My son is eleven. He has allergies and mild asthma. He manages, with very little help from his parents, to take his Claritin and use his inhaler as necessary. A sixteen year old girl is perfectly capable of using an over-the-counter pain medication, and is perfectly justified in carrying it with her whenever and wherever she desires. Anyone who thinks otherwise is just plain dumb. Or insane. Or evil.

And I won't even dwell on what the hell anyone was doing searching her purse without a warrant.

It seems to me that no one involved in the expulsion of Ms. Stiles has any business in any profession requiring judgement or responsibility. But maybe in the long run her expulsion will be a good thing. It gets her away from your meddling stupidity.

May your day suck. Hard. For a year.

Bill St. Clair

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]


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.
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.


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.

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 -


serving a warrant of arrest; or


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


making a search at the request or invitation or with the consent of the occupant of the premises

The High Road - What if they started confiscating arms based on Silveira v. Lockyer? - Good discussion. I especially liked this post by 2dogs (bold text is a quote from another post), which highlights the importance of the Supreme Court's refusal to review Silveira by imagining that the case had concerned race instead of guns: [highroad]

Do I think that the gun-grabbers will be at anyones door next week? No, of course not -- it is too soon for that. However, I think that the legal groundwork has just been laid for that very thing. Everything that is needed to ban all individual ownership of firearms is on the table -- and the Supreme Court of the United States, by remaining silent, is giving their consent. I think that the Bradyites are right to celebrate as they have just won a tremendous legal victory.

Dec. 5, 2003
Washington DC (AP)- The Supreme Court today declined without comment to review the 9th Circuit Court's decision in J Doe vs Lockyer in which the California court determined that African Americans, Jews and Muslims are only 3/5 of a human being.

Kwese Mfume, president of the NAACP stated that " while we feel that the 9th Circuit decision is incorrect, it is our belief that Doe v Lockyer is the wrong case at the wrong time. We are willing to bide our time and wait for a better case to come before the Justices."

A spokesman for the Anti Defamation League stated that "we disagree with the 9th Circuit decision but don't feel that the Supreme Court's decision not to hear the case is a major blow. We are comforted by the fact that the 5th Circuit held that African Americans, Jews and Muslims are indeed complete human beings, with the same rights as everyone else. " The ADL further said that they felt the organization "Freedom for Everyone" who brought the Doe v Lockyer suit were not qualified to do so and, if the case had been granted Cert, it may actually have set the civil rights of African Americans, Jews and Muslims back.

The Council for American Islamic Relations indicated that the Freedom for Everyone group are a bunch of "chicken littles" and "radicals" who worry that the 9th Circuit decision could actually lead to genocide and death camps.

Conversely the American Nazi Party and KKK hailed the Supreme Court's refusal to review the 9th Circuit decison, claiming that the Supreme Court had in fact, by refusing to hear the case, confirmed their belief that any non-Aryan is less human than they. "We feel assured that by refusing to hear this case the Supreme Court has granted the states in the 9th Circuit the right to impose any restrictions and laws necessary to eliminate the mongrel non-Aryans who are a danger to society and our children".

The California legislature, emboldened by the Supreme Court and the 9th Circuit, continued to enact legislation to limit the freedoms of "the mongrels" and while not immediately planning to detain and dispose of them, to lay the groundwork under color of law to eventually deal with "the problem".

Meanwhile most African Americans, Jews and Muslims remained for the most part unaware that their rights may be in jeopardy. A rally at the Capitol to protest the Supreme Court's apparent dereliction drew only a few score of people.

An unscientific "man on the street" poll found that most Americans were not worried since they are not African American, Jewish or Muslim and most preferred to stay home and watch the TV show "Michael Jackson Seeks American Justice" .

Student of Life at Rational Review - Who died and made non-aggression fundamental? - practical lessons from Aikido philosophy. Interesting. [smith2004]

Student of Life is a management consultant and anarchist who is puzzled by libertarians, Rand fanatics, and other religious types. He spends his spare time as an internet gadfly while trying desperately to reconstruct the users' manual to life that he was never issued.

Smith & Wesson - 340PD - another nice Scandium revolver. 357 magnum, internal hammer, 12 ounces, 6.5" overall length, $840 suggested retail.

The Klingon Batleth - a cool, though very heavy, edged weapon of Star Trek fame. $50. [smith2004]

Tower Hobbies - Hobbico NexSTAR 46 Select Ultimate RTF - my wife wants to get this radio controlled airplane for our son. Very neat! 5'8" wingspan. Lots more training features than were available in RC airplanes when I was a kid, including a computer simulator. $399. Don't miss the videos at the bottom of the page or the RC Universe Review.

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