IN PORTLAND, OREGON, citizens
were snatched by the un-ID’d, stuffed into unmarked vehicles, and whisked away. It was an act of impunity.
“Swarms of
officers” embody the objection made in the Declaration, as if in the employ of
King George III. But modern day royal
agents also mock the oath to uphold the Constitution—and they ignore the
Bill of Rights.
I
James Madison
reminds us that “a right implies a remedy.”
(The Federalist Papers, No. 43)
Title 18, Section 242 of the United States Code provides a way to make
it so.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States...shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
“The complete
independence of the courts of justice is peculiarly essential in a limited
Constitution. By a limited Constitution,
I understand one which contains certain specified exceptions to the legislative
authority; such, for instance, as that it shall pass no bills of attainder, no ex
post facto laws, and the like.
Limitations of this kind can be preserved in practice no other way than
through the medium of courts of justice, whose duty it must be to declare all
acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing.” (Alexander Hamilton, The Federalist Papers,
No. 78, emphasis his)
In Harlow
v. Fitzgerald, the Supreme Court set the standard for qualified
immunity. “If the law at that time was
not clearly established, an official could not reasonably be expected to
anticipate subsequent legal developments, nor could he fairly be said to ‘know’
that the law forbade conduct not previously identified as unlawful.” That sounds innocuous. But it protects unqualified “peace officers”
by allowing them to do wrong—and trample on someone’s rights—without consequences,
about things they ‘know.’”
The Fourth
Amendment is “clearly established.” It
stands in contrast to the writs of assistance—general search warrants—which
allowed the agents of King George III to do as they pleased. But the Fourth Amendment defines the role of
a police officer in a republic, not a monarchy.
“The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.” Yet police make
false arrests and conduct illegal searches, a flagrant violation of its
provisions. Breonna Taylor was a recent
victim and, unfortunately, she will not be the last.
The Fifth
Amendment is “clearly established.” It
states, among other things, that “No person shall be…deprived of life, liberty,
or property, without due process of law….”
But police officers act as judge, jury, and executioner when there is no
threat whatsoever—another flagrant violation.
Breonna Taylor was a recent victim and, unfortunately, she will not be
the last.
In some
respects, the Fourth and Fifth Amendments have been made mere parchment
barriers. Thus, the reservations of
particular rights or privileges amount to nothing.
In Terry v.
Ohio, Chief Justice Earl Warren delivered the opinion of the Court.
“Nothing we
say today is to be taken as indicating approval of police conduct outside the
legitimate investigative sphere.”
Justice
William O. Douglas dissented and appealed to the high court of history.
“…(P)olice
officers up to today have been permitted to effect arrests or searches without
warrants only when the facts within their personal knowledge would satisfy the
constitutional standard of probable cause.
The term ‘probable cause’ rings a bell of certainty that is not sounded
by such phrases as ‘reasonable suspicion.’…
To give the police greater power than a magistrate is to take a long
step down the totalitarian path…. Yet if
the individual is no longer sovereign, if the police can pick him up whenever
they do not like the cut of his ‘jib,’ if they can ‘seize’ and ‘search’ him in
their discretion, we enter a new regime.
The decision to enter it should be made only after a full debate by the
people of this country.”
Meanwhile,
police unions aid and abet members who trample on someone’s rights.
“Stephen
Rushin, the Loyola Chicago law professor, has gone to great lengths to
correlate stronger police union contracts with upticks in officer misconduct. Through an examination of 834 contracts
across two studies, Rushin highlighted how unions have orchestrated a system of
non-accountability spanning the nation. He
determined that contracts stymie oversight with policies that ‘limit officer
interrogations after alleged misconduct, mandate the destruction of
disciplinary records, ban civilian oversight, prevent anonymous civilian
complaints, indemnify officers in the event of civil suits, and limit the
length of internal investigations,’ one paper says.”
To limit a
review or an investigation of a police officer’s deeds is to make meaningless
the words of the oath. For, as James
Madison said in a speech on the floor of the first House of Representatives, “I
believe no principle is more clearly laid down in the Constitution than that of
responsibility.” Yet qualified immunity
and police union contracts render rights an illusion without hope of a remedy and
they negate responsibility. Thus, such
violations of the social contract raise a question: How does one square the circle? According to Article VI, Clause 2, “This
Constitution…shall be the supreme law of the land…, any thing in the
Constitution or laws of any State to the contrary notwithstanding.” And in Alexander Hamilton’s words, those
intolerable side-effects are the result of a failure “to declare all acts
contrary to the manifest tenor of the Constitution void.” (The Federalist Papers, No. 78)
William
Blackstone, who is referenced in The Federalist Papers, cited the old
adage—“Where there is a right, there is a remedy”—in his Commentaries on the
Laws of England and, therefore, qualified immunity is at best a questionable
notion, if not a preposterous precedent under Anglo-American
jurisprudence. Thus, a reexamination and
a return to basic principles is in order.
II
“…(T)he
judiciary, from the nature of its functions, will always be the least dangerous
to the political rights of the Constitution; because it will be least in a capacity
to annoy or injure them. …(T)hough
individual oppression may now and then proceed from the courts of justice, the
general liberty of the people can never be endangered from that quarter….” (Alexander Hamilton, The Federalist Papers,
No. 78)
Why are Harlow
v. Fitzgerald and Terry v. Ohio in opposition to those observations? Hamilton noted an important difference
between a monarchy and a republic—and the danger posed to the latter when the
distinction is disregarded.
“It has been
several times truly remarked that bills of rights are, in their origin,
stipulations between kings and their subjects, abridgements of prerogative in
favor of privilege, reservations of rights not surrendered to the prince…. Here, in strictness, the people surrender
nothing; and as they retain everything they have no need of particular reservations,
‘WE THE PEOPLE of the United States, to secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.’”
Now, in
retrospect, his prescience can be appreciated.
“I go further
and affirm that bills of rights, in the sense and to the extent in which they
are contended for, are not only unnecessary in the proposed Constitution but
would even be dangerous. They would
contain various exceptions to powers which are not granted; and, on this very
account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done
which there is no power to do? …(I)t
would furnish, to men disposed to usurp, a plausible pretense for claiming that
power.” (The Federalist Papers,
No. 84; emphasis his)
The
ratification debates illuminated one inadequacy of the Articles as if carved in
sharp relief. But it was not a trick of
light and shadow that provided contrast to the Convention’s work.
“A
circumstance which crowns the defects of the Confederation remains yet to be
mentioned, the want of a judiciary power.
Laws are a dead letter without courts to expound and define their
true meaning and operation….”
(Alexander Hamilton, The Federalist Papers, No. 22; emphasis
added)
Creation of a
judiciary is more than cosmetic, for the removal of a defect is not
enough. The risks are real. Nerve damage is possible.
“…(L)iberty
can have nothing to fear from the judiciary alone, but would have everything to
fear from its union with either of the other departments; that as all the
effects of such a union must ensue from a dependence of the former on the
latter, notwithstanding a nominal and apparent separation….” (Alexander Hamilton, The Federalist Papers,
No. 78; emphasis added)
Imagination is
an unnecessary ingredient to a scenario when history provides
illumination. For there is no mystery as
to how a nominal and apparent separation comes to pass and creates a political
discontinuity, a misalignment of means and ends where a minority rules the
majority.
“…(T)here is
one basic check on a runaway Court: presidential elections,” as Professor Bruce
Ackerman pointed out in noting the significance of Bush v. Gore. “The Supreme Court cannot be permitted to
arrange for its own succession. To allow
(Bush the Younger) to serve as the Court’s agent is a fundamental violation of
the separation of powers…. The
right-wing bloc on the Court should not be permitted to extend its control for
a decade or more simply because it has put George W. Bush into the White
House.” (Emphasis added) But despite a fundamental violation of the
separation of powers, Bush the Younger appointed John Roberts and Samuel Alito;
and thus, the Court packed itself.
The union with
the other branches has been disguised by a nominal and apparent separation made
possible by the misrepresentation and misuse of a misunderstood institution in
2000—and, again, in 2016—that exacerbated the situation. As a result, two more Justices were put on
the bench, with a third on deck, undermining the “one basic check on a runaway
Court: presidential elections.” Yet even
if the Electoral College is used to perform its proper functions—popular choice
and national security—more must be done to not just restore the
legitimacy of the Court but to raise its stature.
Hamilton
addressed three basic requirements of the least dangerous branch.
First,
the importance of reason.
“The judiciary…may
truly be said to have neither FORCE nor WILL, but merely judgment….”
Second,
awareness of its role.
“But it is easy
to see, that it would require an uncommon portion of fortitude in the judges to
do their duty as faithful guardians of the Constitution….”
Third,
the exercise of restraint.
“To avoid an
arbitrary discretion in the courts, it is indispensable that they should be
bound down by strict rules and precedents, which serve to define and point out
their duty in every particular case that comes before them….” (The Federalist Papers, No. 78)
The defect
which crowned the Articles has been corrected: there is a judiciary power. However, the courts will be unable to expound
and define the true meaning and operation of the laws as long as they are
unaware or ignore why they came to be under Article III. To “establish justice,” as stated in the
Preamble, it is necessary to move beyond the contemporary focus on a court of
law. Otherwise there is no way to
protect the political rights and the general liberty of the people.
In the
commentaries on the Constitution, Hamilton consistently refers to “the courts
of justice” whose power extends “to all cases in law and equity, arising under
the Constitution and the laws of the United States. (The Federalist Papers, No. 80 regarding
Article III, Section 2, Clause 1; emphasis his)
“There is
hardly a subject of litigation between individuals, which may not involve those
ingredients of fraud, accident, trust, or hardship,
which would render the matter an object of equitable rather than of legal
jurisdiction…. It is the peculiar
province, for instance, of a court of equity to relieve against what are called
hard bargains: these are contracts in which, though there may have been no
direct fraud or deceit, sufficient to invalidate them in a court of law, yet
there may have been some undue and unconscionable advantage taken of the
necessities or misfortunes of one of the parties, which a court of equity would
not tolerate.” (The Federalist Papers,
No. 80; emphasis his)
Writs of
assistance were one of the grievances listed in the country’s birth
certificate. And despite independence,
the Revolution cannot be considered successful if the same continues
unabated. To paraphrase, Juliet, “What’s
in a name? That which we call a skunk/By
any other name would smell as foul.”
Indeed, it completes the tyrant’s trifecta. The Fourth Amendment, the Fifth Amendment,
and the Preamble amount to nothing when “probable cause” and “due
process of law” and “the blessings of liberty” are made neutered
phrases.
History has
provided enough experience to inform our contemporary conduct. These are the essential elements that must be
weighed—the institution, the individual, ideology, interaction, image, impact,
and intersection.
A nomination must
pay respect to Hamilton’s basic requirements of the least dangerous branch—the importance
of reason, awareness of its role, and the exercise of restraint. “To produce uniformity in those
determinations, they ought to be submitted, in the last resort, to one SUPREME
TRIBUNAL.” (Alexander Hamilton, The Federalist
Papers, No. 22) Thus, the current composition
of the institution needs to be carefully considered: Is the Court meeting those requirements? And if not, what is necessary to do so? After all, the Court is a collegial body that
exists to “establish justice.” It is not
a lifetime Cabinet with a Prime Minister in a robe, and, therefore, an individual
who seeks truth—and is not a predictable vote—is invaluable. For ideology is a leading cause of
blindness. But as an artist looks at a subject
or object from various angles, so must the Court look at cases from different
points of view.
Interaction
will affect the image of the institution and its ingredients. An individual has to avoid a conflict of
interest or even the appearance of impropriety while the institution, to be
respected, must remember that Hamilton consistently referred to “courts of
justice”—not a court of law that can be technically right and totally
wrong. The impact on American
jurisprudence and American lives will be significant. Therefore a favorable rating from the
American Bar Association alone will no longer do. The American Historical Association must be
involved as well. Furthermore, majority,
concurring, and dissenting opinions are insufficient. The Court must also submit a societal impact statement.
The intersection
or union with the other branches undermines the constitutional design and
endangers the freedom the separation of powers was meant to defend. Instead, it perpetuates a political discontinuity,
a misalignment of means and ends where a minority rules the majority. And that will continue to be the case until
the Electoral College is used to perform its proper functions—popular choice and
national security. The National Popular
Vote will make it so.
III
THE
DECLARATION begins with ideals—“all men are created equal”; “life, liberty, and
the pursuit of happiness”; “the consent of the governed”—and ends with reality: “Prudence, indeed, will dictate that
governments long established should not be changed for light and transient
causes; and accordingly all experience hath shown, that mankind are more
disposed to suffer, while evils are sufferable, than to right themselves by abolishing
the forms to which they are accustomed.
But when a long a train of abuses and usurpations, pursuing invariably
the same object evinces a design to reduce them under absolute despotism, it is
their right, it is their duty, to throw off such government, and to provide new
guards for their future security.” And
then there was a list of grievances, one of which was the despised writs of
assistance: “He has erected a multitude
of new offices, and sent hither swarms of officers to harass our people, and
eat out their substance.”
THE
CONSTITUTION replaced the Articles of Confederation. The new charter was supposed to nudge the
high ideals of the Revolution closer to reality—“in order to form a more
perfect Union.” It set up a framework
for debate about how to proceed. And
when Benjamin Franklin and James McHenry left on the final day of the Federal
Convention, they were approached by Mrs. Powel of Philadelphia.
“Well, Doctor,
what have we got—a republic or a monarchy?”
“A republic,”
Franklin replied, “if you can keep it.”
THE BILL OF
RIGHTS was adopted after the Constitution was ratified, and what once was
inherent became specified. The Fourth
Amendment is a rebuke to writs of assistance and defines the job of police
officers. The Fifth Amendment outlines
boundaries to be respected—no denial of “life, liberty, and property, without
due process of law.” The Ninth Amendment—“The
enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people”—addressed Hamilton’s concerns
about providing “a colorable pretext…to men disposed to usurp, a plausible
pretense for claiming that power.” (The
Federalist Papers, No. 84)
Modern day
royal agents act in defiance of the Declaration. And if new guards are not provided for our
future security, then the Republic is at risk.
Modern day
royal agents disrespect the Constitution.
Every failure to report misconduct bears witness to the same. If the thin blue line matters more than the
oath, police officers cannot support and defend the supreme law of the land “against
all enemies, foreign and domestic” when they become the latter.
Modern day
royal agents disregard the Bill of Rights.
The Fourth Amendment and the Fifth Amendment have been waived for their
benefit. With no roll of the dice, they
possess a get out of jail free card while disrespecting someone’s rights. It is as if they have sworn to protect and
serve themselves.
William
Blackstone cited the old adage—“Where there is a right, there is a remedy”—in his
Commentaries on the Laws of England and, therefore, qualified immunity
is at best a questionable notion, if not a preposterous precedent under
Anglo-American jurisprudence. Thus, a
return to basic principles serves as a guide that will “insure domestic
tranquility.”
IV
The patchwork
approach has failed. Recurring problems
do not happen in just one State or region.
They are national, and that is where they need to be addressed. After all, the Fourth Amendment, which defines
a police officer’s job, applies across the country.
Recruitment must change. Direct admittance to a police academy is too
easy. But if candidates are required to
go to boot camp with Rangers and/or Special Forces drill sergeants, they will
undergo background checks. Furthermore,
current officers who move to another jurisdiction would be subject to the
same. Thus, the weeding can begin.
Too many
police officers act as if they are royal agents and that they are always
right. The idea that such people have
weapons designed for the Armed Forces is frightening. So, it is time to put them in touch with
reality, to learn—not through a lecture—but through training, that they are not
soldiers. They would not touch a weapon
but be armed with knowledge. They would
be required to know the Fourth Amendment by heart—and why we have one. They need to be in a situation where the
drill sergeants may be so-called “minorities”; and they must follow their
orders. And while they cannot be DOR—DROPPED
ON REQUEST, they can be kicked out.
The intention is to dispose of those who have unsuitable
dispositions. A little humility is in
order, and, therefore, they will be called—constantly—“possible trainees.”
Before arrival
at the academy, those who survived boot camp, with a favorable recommendation,
will have learned that police officers often precipitate the event by their
inability to speak pleasantly to people and listen to them. Instead, they will do the following: First, ask questions; do not
assume. Second, keep smart aleck remarks
to one’s self. Third, check when
asked to do so. Finally, stop
making stuff up.
Boot camp is a memorable experience, and the time has come to make it an unforgettable one for those who think they are the King's royal agents. “Peace officers” must learn that they can be questioned.
(c)2020 Marvin D. Jones. All rights reserved.
https://migrate.readersupportednews.org/opinion2/277-75/64087-the-authoritarian-operation-in-portland-is-only-a-dress-rehearsal
https://thehill.com/homenews/house/508225-trump-threatens-to-double-down-on-portland-in-other-major-cities
https://youtu.be/B4xlDlRuVeA
https://www.justice.gov/crt/deprivation-rights-under-color-law
18 USC 242
https://www.law.cornell.edu/supremecourt/text/457/800
Harlow v. Fitzgerald
https://www.dailykos.com/stories/2020/8/4/1966558/-Federal-judge-basically-begs-the-Supreme-Court-to-overturn-qualified-immunity
Qualified immunity
https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform#:~:text=Qualified%20immunity%20is%20a%20judicially,violate%20%E2%80%9Cclearly%20established%E2%80%9D%20law.
Qualified immunity
https://youtu.be/n0QoHvmeduo
Quality immunity
https://www.dailykos.com/stories/2020/8/23/1971757/-Police-shoot-black-man-while-holding-his-shirt-at-domestic-disturbance-call-Graphic-video-warning
The Fifth Amendment—judge, jury, and executioner
https://www.dailykos.com/stories/2020/10/9/1985099/-New-documents-show-the-internal-effort-to-justify-the-murder-of-Breonna-Taylor-was-just-astounding
Breonna Taylor
https://www.washingtonpost.com/nation/2020/10/10/texas-police-officer-antagonized-residents-small-town-prior-shooting-residents-say/
https://www.law.cornell.edu/supremecourt/text/392/1
Terry v. Ohio
https://readersupportednews.org/news-section2/318-66/63897-focus-police-unions-wield-massive-power-in-american-politics-for-now
Police unions
https://reason.com/2016/02/04/after-finally-returning-the-money-they-s/?itm_source=parsely-api
Modern day American writs of assistance
https://nypost.com/2017/07/20/stop-the-feds-from-taking-your-stuff/
Modern day American writs of assistance
https://reason.com/2019/11/21/with-this-forfeiture-trick-innocent-owners-lose-even-when-they-win/
Modern day American writs of assistance
https://www.nationalpopularvote.com/
https://youtu.be/JT1WBZxcRDE
A clear abuse of power
https://youtu.be/VNjLvLrQ0kQ
A clear abuse of power
https://www.dailykos.com/stories/2020/8/12/1968658/-LAPD-officer-s-own-body-cam-caught-him-fondling-dead-woman-s-body-family-sues
Finally, a clear abuse of power that a police union does not support
https://youtu.be/StGRMpmkONw
The Fourth Amendment—the bikini arrest
https://youtu.be/6xOrWEbs_3k
The Fourth Amendment—the Krispy Kreme donut arrest
https://youtu.be/0JAnpxFHtzI
A flagrant violation of the First Amendment and blatant violation of the Fourth Amendment
https://youtu.be/LuWZBZSIooo
Same Town, Same Week, Same Police Force, Different Reactions | Deadline | MSNBC
https://ifstudies.org/blog/theyre-out-to-get-you-police-misconduct-in-white-working-class-america
Police Misconduct in White Working-Class America
https://youtu.be/Wf4cea5oObY
Police by John Oliver
https://youtu.be/jGsshP1WqY0
Glenn Kirschner's police reform
https://youtu.be/h5vkO7JJ940
An appropriate response?
https://www.dailykos.com/stories/2020/8/31/1973761/-Police-support-for-armed-far-right-groups-and-Trump-s-creeping-fascism-are-a-terrifying-mix
Why fundamental change is needed
https://www.washingtonpost.com/politics/as-clashes-between-armed-groups-and-leftist-protesters-turn-deadly-police-face-complaints-of-tolerating-vigilantes/2020/08/30/d2c36c20-e952-11ea-a414-8422fa3e4116_story.html
Why fundamental change is needed
https://youtu.be/UdWB-w3hfMQ
Why fundamental change is needed—blatant violation of the Fourth Amendment
https://www.dailykos.com/stories/2020/9/25/1980004/-Leaked-email-shows-normalized-and-racist-mentality-of-Louisville-police-department
Why fundamental change is needed—the Breonna Taylor case
https://theintercept.com/2020/09/29/police-white-supremacist-infiltration-fbi/
Why fundamental change is needed
https://www.rollingstone.com/politics/politics-features/why-policing-is-broken-taibbi-1014652/
Why fundamental change is needed—how the oath is made meaningless
Addendum:
'Why Do We Keep Seeing Videos Like This?' | Morning Joe | MSNBC, 04-12-2021
Why do we keep seeing videos like this? The culture of impunity has not been broken. And nibbling
around the edges will not do. Fundamental change is needed.
