OFF THE WIRE
So much for not having to offer quarter to gov't enforcers..
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Judge Andrew Gordon handed down the decision in February in the case of a Nevada couple and their adult son, who claimed
their 3rd Amendment protection against quartering “soldiers” had been
violated by the Henderson (HPD) and North Las Vegas (NLVPD) Police
Departments, both of which forcibly occupied the plaintiffs’ homes in
order to gain a “tactical advantage” in an incident involving their
neighbor.
Claire Bernish(The Pontiac Tribune)
– A federal district court judge in Nevada made a ruling essentially
nullifying protection under the 3rd Amendment, by stating the police do
not qualify as “soldiers” under the law. The 3rd Amendment to the
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.”
Judge Andrew Gordon handed down the decision in February in the case of a Nevada couple and their adult son, who claimed their 3rd Amendment protection against quartering “soldiers” had been violated by the Henderson (HPD) and North Las Vegas (NLVPD) Police Departments, both of which forcibly occupied the plaintiffs’ homes in order to gain a “tactical advantage” in an incident involving their neighbor. Though the 3rd Amendment is often brought up in jest, this ruling has potentially serious implications with the recent militarization of police, and the rise in reports of their abuses of power. Perhaps because of the seemingly outdated nature of the amendment, this case has garnered very little attention, but its significance cannot be overlooked, particularly if viewed in the context of the successive erosion of Constitutional protections and civil rights.
The National Defense Authorization Act (NDAA) of 1997 marks the beginning of an obfuscation between police and military power in the US. Section 1033 of the act expanded on a program allowing law enforcement agencies (LEAs) to procure military equipment free of charge with federal funding, by adding ‘the prevention of terrorism’ as a reasonable justification for requests. The 1033 Program, as it’s come to be known, ostensibly laid the framework for what many view as a burgeoning police state. Though this program allows for the transfer of such items as bedding, digital cameras, and lawn care equipment, it also means local LEAs can procure tactical vehicles and weapons with significant military capabilities . . . without any mandates requiring accountability for their use. With alarming frequency, the same equipment used in military actions abroad is showing up in executing search warrants, otherwise peaceful protests, and even, in one case, at a pumpkin festival. The inclusion of the ambiguous threat of terrorism into this equipment and funding giveaway was explained best by a Keene, NH, city concilmember, who said in justification of the city’s procurement of a BearCat APC,
“Our application talked about the danger of domestic terrorism, but that’s just something you put in the grant application to get the money. What red – blooded American cop isn’t going to be exited about getting a toy like this? That’s what it comes down to”.
This must beg the question of the chicken versus the egg: are the people so out – of – control that militarizing local police forces is the only answer? Or has this new military – minded and outfitted police force created a fearful and reactionary populace? Are police, in fact or in theory, now so thoroughly influenced by military culture that they could be considered ‘soldiers’? To examine the 3rd Amendment ruling thoroughly, this question is vital.
The use of this military equipment (i.e. how it is put to use by LEAs) has created a soldier – like mindset for police officers. In response to the 1033 Program and its lack of oversight, and with ever – increasing reports of abuse of police power, the ACLU studied the militarization of police in the use of SWAT (Statistical Weapons and Tactics) for a set period, from 2011 – 2012. What their report, War Comes Home: The Excessive Militarization of American Policing, found is startling, in part finding,
“American policing has become unnecessarily and dangerously militarized . . . use of hyper – aggressive tools and tactics results in tragedy for civilians and police officers, escalates the risk of needless violence, destroys property, and undermines individual liberties”.
Overwhelmingly, SWAT teams are deployed in carrying out search warrants (most often for simple drug cases), 79% of the time according to the report, and violently so, using flash – bang grenades, battering rams, and screaming commands meant to stun and intimidate people into cooperation. The original purpose in the creation of SWAT was to deal with hostage situations, active shooter scenarios, and various major disasters; but this clearly is no longer the case, as according to the study’s statistics, these accounted for just 7% of all deployments. Utilizing hyper – aggressive tactics and military equipment for such searches, the raids were found to cause property damage, injury, and/or death, and cases where innocent parties suffered harm, or even death, were far from rare.
The deployment of SWAT teams to execute basic, criminal search warrants could be justified if a genuine threat to officers’ safety was present, but the ACLU study revealed this isn’t typically the case. Approximately half of all homes in America have at least one firearm, so police justification for using such violently aggressive tactics could theoretically make sense. But “of the incidents in which officers believed a weapon would be present, a weapon (typically a firearm such as a handgun but rarely an assault rifle) was actually found at the scene in only 35% of cases”, and if those households which do have weapons are likely to use them for defense, employing SWAT for searches simply increases the possibility for the situation to turn even more violent, putting everyone at risk. It simply isn’t logical, so only furthers the negative, militaristic, bullying image that police claim they want to avoid. Absent any regulations or standards governing how and when to employ SWAT, or any record – keeping thereof, paramilitary squads of police in armored personnel carriers (APCs) continue to be a regular fixture in everyday America.
Increasing the parallel between police and military, there has been a significant shift away from traditional police uniforms, “dress blues”, toward “battle dress uniforms” (BDUs), whose moniker belies the similarity to what would likely be found in one of many US military deployments overseas. The government’s official doctrine of policing is a community – based model, where instilling public trust through a mutual relationship with the communities they oversee is paramount, yet BDUs generally increase the feeling of separation between police and the public. At least one informal survey in 2009 by the Johns Hopkins University Public Safety Leadership Program, found public perception much more in favor of traditional uniforms, and that
“The much more militaristic look of BDUs, much like what is seen in news stories of our military in war zones, gives rise to the notion of our police being an occupying force in some inner city neighborhoods, instead of trusted community protectors.”
Recruitment campaigns and training methods mirror those of the armed services, amplifying rather than downplaying the warrior image. Set to music one might find in an action flick, a recruitment video for the Newport Beach Police Dept depicts officers as the strong arm of the law, in one case employing a chokehold which, for all intents and purposes, looks like the one used by the NYPD in Eric Garner’s death. These videos, which are the norm rather than the exception, target those who are more likely to be attracted to the image of a militarized police force wielding its power against the perceived civilian ‘enemy’, and coupled with the opportunity to try out the high – tech, military ‘toys’, makes a job in policing irresistible. Once in training, the recruits overwhelmingly encounter stress – based, military boot camp style indoctrination, which focuses on paramilitary drills, rigorous physical regimens, intense discipline — both in comportment and punishment for infractions, and general inculcation into the notoriously insular police ‘brotherhood’, in itself reminiscent of military culture. The Dept of Justice’s own e – newsletter devoted to community – oriented policing, COPS, criticizes this most common training strategy as “antithetical to a community oriented policing philosophy that is grounded in trust building, partnering, and developing and sustaining positive relationships with citizen stakeholders”. The site also notes a scholarly study which found this training method results in “police practices contrary to democratic governance”. If it looks like a duck, and quacks like a duck . . .
Perhaps nothing more sharply focused the public’s attention on the militarization of law enforcement than the police response to protest in Ferguson, Missouri. Images of BearCat vehicles and MRAPs driving down city streets, fronted by fully – armed police squads firing tear gas canisters at protesters and journalists alike, brought to the forefront of national debate the question: Has the line between the police and military been erased? Under the original spirit of the Posse Comitatus Act, the answer appears to be a resounding ‘yes’. The act reads:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
With relatively recent erosion of the law beginning with Pres Reagan employing the military in fighting the drug war, scholars and analysts remain at odds over the extent to which the Posse Comitatus line has been crossed, though there is general consent that a breach has occurred. Even court judgments in cases where excessive police force was used reflect the pervasive military mindset as even egregious overstepping of the law is excused for seemingly no other reason than . . . police state. New York City Mayor Bill DeBlasio responded to Constitutionally protected protests over excessive force by police by, astonishingly, giving his police force machine guns to patrol the protests. His response, and the entire Ferguson morass, call into question the standing of the 1st Amendment protections for freedom of speech and assembly. Judgment in the case of Heien vs North Carolina, in which police ignorance of the law led to an arrest for drug possession and the Supreme Court’s decision to let the arrest stand, has essentially nullified our 4th Amendment protection against unreasonable searches and seizures. And now the 3rd Amendment, one which had been seen as anachronistic, and certainly worthy of the brunt of jokes, has proven its modern – day worth, right at the moment of its negation.
The militarized police state has permeated the nation, and those who simply theorize about its reality, need only look around. Evidence doesn’t lie. Denying its existence, or excusing infringements on liberties and rights granted by the Constitution, in favor of perceived safety from nebulous threats like terrorism, will only enable its continued expansion. Unless we put our collective foot down, and demand reform, like an end to the 1033 Program and allowing PATRIOT Act provisions to expire, the government will continue to encroach on our private lives. One of the biggest mistakes people persistently make, is in thinking what happens to others couldn’t possibly happen to them. Keeping alert and informed is a veritable duty in a free society.
“Injustice anywhere is a threat to justice everywhere” — Dr Martin Luther King, Jr
(Feat. Image: Associated Press)
