Finally, Officer Safety is Put in its Proper Place in a Police Magazine

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In the January 2015 edition of Law and Order, a police management magazine, there is an article that not only the management should read, but that should be passed on to every officer.

The article, No “Officer Safety” Exception to the Constitution, Charles Huth, Jack Colwell, and Randy Means, Law and Order, Jan. 2015, is very clear that officer safety has gone too far.  They state:

“A number of law enforcement agencies are currently under fire for their patterns and practices of “stop and frisk.” This is only the present manifestation of what has been for decades a national epidemic of illegal police practices rationalized by the mantra “officer safety.” Frisks are not supposed to be the rule in Terry-type stops; the rule would be no frisk. The same is true for handcuffing subjects and placing them in the back of police cars.” Id.

Guys, this isn’t just me, an old, worn out street cop saying this by myself, these are well-respected leaders in the profession.  Huth is the past President of the National Law Enforcement Training Center* and a Captain with the Kansas City, Missouri Police Department.  After the Eric Garner death, Huth was on CBS News showing the difference between an arm-bar chokehold and the much safer lateral vascular neck restraint (LVNR).  Colwell retired from the KCMOPD after 29 years and is the co-author of Unleashing the Power of Unconditional Respect with Huth, a program for increasing officer connection with the community and decreasing confrontations.  Finally, Means is a partner at The Thomas & Means Law Firm, and has a long history as a police legal advisor, and risk management at the IACP.

The article is outstanding, pointing out that there is no officer safety exception in the U.S. Constitution.

“So, where does one find the officer safety exception to the Constitution? Generally speaking, it doesn’t exist. Generally, the rights of the people trump the rights of an officer to be guaranteed a safe outcome in dangerous situations.” Id. (emphasis added).

I don’t know how much clearer this can be said.  I can tell you that this is not the way that officers are being trained.  I can tell you that this is not the way that most officers on the street view it.  But these guys get it, and not only that, they train the people that train officers.  I’ll leave you with their words:

“If the choice is between feeling safer by violating someone’s Constitutional rights or taking calculated risks while honoring our oath, the pledge we made when our badges found their home on our chests  is supposed to win every time.”  Id.

 

*Originally founded by Jim Lindell, who developed the LVNR, weapon retention training, and is a pioneer in officer safety.

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The First Rule of Policing – and the Harm it Does, Part IV

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Part of a continuing series, see Part I, Part II, and Part III.

OK, so far we got that police officers are worried about their safety, that the War on Drugs have not worked, and that SWAT was designed for high risk operations.

The problem is that all of these things have come together and had an unintended consequence.  As the War on Drugs continued and some of the criminals began to use more violent methods, it was natural that police would begin to use SWAT on those raids.  In some cases, it was appropriate to do so.  Just as was the case during Prohibition, some criminals were violent and fought the police.  For example, in West Baton Rouge, Louisiana, SWAT raided a series of homes used by a criminal gang.  In addition to large amounts of drugs, a bullet-proof vest and 13 firearms were seized.  Or in Sonoma County, California, where SWAT raided the home of a known gang member, who was out on bail from a previous drug arrest.  SWAT seized drugs and guns, including an “assault weapon.”

The problem is mission creep.  Once the police got used to using SWAT, it became more common.  So now police departments regularly use SWAT for any search.  Examples abound of the misuse of SWAT:

  • Arlington, Texas SWAT raids an organic farm, holds residents for 10 hours.  The crime?  Code enforcement violations.  Oh yeah, these people are hippies, so there are probably drugs involved.
  • Saint Louis.  SWAT served an “administrative” felony warrant, because SWAT serves all felony warrants.  Really?  What happened to arranging for the perp to surrender?
  • Orange County, Florida police and a state regulatory agency perform a number of warrantless “inspections.”  In the raids, 37 people were arrested, the vast majority for misdemeanor “barbering without a license.”  See Barry v. Demming, No: 6:11-cv-1740-Orl-36KRS, 2013 WL 4500467 (M.D. Fla. Aug. 22, 2013) (summary judgment denied, there is a question of fact whether the search was reasonable and if excessive force was used).
  • New Haven, Conn. police used SWAT to check if bar patrons were of legally drinking age.  Really?  Yale students are going to attack the police?  Look, I’ve handled underage drinking.  These kids do not assault police for the most part.  They either run or try to use fake IDs.  Whoever thought that using SWAT was appropriate should have been demoted or fired.
  • Atlanta, Georgia.  SWAT is used to raid a recording studio for copyright violations.

And those are just some of the ones where no one was seriously injured.

When questioned, for the most part the police try and justify the use of the SWAT teams.  Remember, in the police mindset, the First Rule of Policing takes precedence—and they don’t think of the right of the citizen to go home safely.

The First Rule of Policing – and the Harm it Does, Part III

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Part of a continuing series, see Part I and Part II.

Special Weapons and Tactics.  SWAT.  A valuable tool that has been overused and misused in the police field.

charles_whitman_ut_towerSWAT began for a good reason–it was needed.  On August 1, 1966, a former Marine with an undiscovered brain tumor, Charles Whitman, murdered his mother at her apartment and his wife at their home.  Whitman then went to the University of Texas tower with “six guns, a shotgun, ammunition, a foot locker, knives, food, and water.”  Loren Coleman, The Copycat Effect: How the Media and Popular Culture Trigger the Mayhem in Tomorrow’s Headlines 21 (2004).  He killed three more on his way to the observation deck and then opened fire.

Whitman killed ten more and wounded thirty-one more from the tower.  Austin police responded, but there was no planned response.  Ordinary Texans with deer rifles showed up and provided suppressive fire.  Officers made it into the tower and up to the observation deck, where they had to get past the barricaded door.  Two officers, Ray Martinez and Houston McCoy then shot Whitman to death.  Gary M. Lavergne, A Sniper in the Tower: The Charles Whitman Murders (1997); Ron Franscell, Delivered from Evil: True Stories of Ordinary People Who Faced Monstrous Mass Killers and Survived (2011).

SWAT was formed from this, and other events.  Depending on who you believe, either Los Angeles or Philadelphia were the first to form the teams.  The teams were initially used properly, for high risk incidents like bank robberies in progress, or other incidents involving heavily armed subjects.  They were, for the most part, successful, with operations such as the 1974 Symbionese Liberation Army shootout or the 1984 McDonald’s killings (ended by a SWAT sniper).  When you have a useful tool, you begin to look for other problems to use it on, and when that tool is a hammer, problems start to look like nails.

So SWAT began to be used for other tPolice from tactical team making entry to serve a high-risk drug related search warrant. Street Narcotics Unit.hings, like drug raids.  “In 1972, there were just a few hundred paramilitary drug raids per year in the United States.  By the early 1980s, there were three thousand . . . and by 2001 there were forty thousand.”  Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 74 (2010).  Some of these are warranted and there are plenty of examples of big drug dealers using weapons to protect their drugs.  SWAT is perfect for those.

But as many have begun to point out, with the increased use of SWAT, there have been increases in both idiocy and errors, some leading to unnecessary fatalities.  Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America (2006); Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (2013).  Errors do not however, slow down the idiocy.  In 1994, a botched Boston PD SWAT raid at the wrong address caused the death of a respected cleric by heart attack.  The police commissioner personally apologized and vowed to insure that this would not happen again.  Boston Official Apologizes After Cleric Dies Following SWAT Raid At Wrong Address, 85 Jet 8-9 (Apr. 11, 1994).  In 2012, Boston Police have expanded the use of SWAT to include raids on prostitution parlors, in order to seize sex toys, condoms, pajamas, and cash.  While I’m sure that we wouldn’t expect a respected cleric to be at a house of ill-repute, I’m also sure that expanding the use of SWAT to raid whorehouses is idiotic.  It is the expansion of the mission that keeps SWAT in business.

In addition, SWAT types have a different mindset, a combat mindset.  We’ll cover that in more depth next.

The First Rule of Policing – and the Harm it Does, Part II

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Part of a continuing series, Part I is here.

While Remsberg and Calibre Press were conducting seminars on officer safety and survival, the sociological climate of police was changing.

In 1968, President Johnson created the Bureau of Narcotics and Dangerous Drugs to centralize the response to illicit drugs.  By 1971, President Nixon had declared a “War on Drugs” and by 1973 the Drug Enforcement Administration was formed.  Initially, this encompassed a treatment based approach, such as the methadone treatment centers established in Washington, D.C. by Robert L. DuPont.  A year after the centers had been established, serious crime rates dropped significantly.  Richard J. Bonnie, The Virtues of Pragmatism in Drug Policy, 13 J. Health Care L. & Pol’y 7, 14 (2010).  At the same time (in 1972 and 1973), the National Commission on Marijuana and Drug Abuse, recommended the decriminalization of marijuana.  Id., at 13.  Twelve states have followed that approach.  James Austin, Rethinking the Consequences of Decriminalizing Marijuana, NORML.org (Nov. 2. 2005).

Instead, the government moved towards a zero tolerance policy and strict criminal enforcement of drug laws.  The term “War on Drugs” was used over and over, with other militaristic terms also being added to police language.   We’ve done the same thing in the past, with the war on alcohol, commonly known as Prohibition.

The War on Drugs has paralleled the results of Prohibition.  See Norm Stamper, Prohibition: A parallel to modern war on drugs, Seattle Times, Sept. 30, 2011.  Chief Stamper (retired chief of police, Seattle) explains it more eloquently than I can, and more information is available at the Law Enforcement Against Prohibition website.  The problem is that the drugs are winning and the police are losing the war.  With millions of dollars at stake, drug gangs have increased the stakes and become more violent.

The police responded with SWAT teams.

 

 

People v. Aguilar, Second Amendment Protects the Carrying of Arms

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This came out last week, but I wanted to wait and think about it before I began to bloviate about it.

The Illinois Supreme Court, in People v. Aguilar, 2013 IL 112116, ___ N.E.2d ___ (Ill. Sept. 12, 2013), ruled that the former version of the Aggravated Unlawful Use of a Weapon (AUUW), 720 ILCS 5/24-1.6, violated the Second Amendment of the U.S. Constitution.

Alberto Aguilar, then 17 years old, was arrested in the Little Village neighborhood of Chicago for AUUW and for Unlawful Possession of a Weapon (UPW), 720 ILCS 5/24-3.1.  Aguilar was convicted in a bench trial and sentenced to two years of probation.  He appealed and the appellate court affirmed the conviction.  He then took the case to the Illinois Supreme Court.

As noted, the Court held that AUUW was unconstitutional at the time of the arrest, as it prohibited all carry of a firearm outside of the home.  This is not surprising, given that the U.S. Seventh Circuit had made the same ruling in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).  The Moore decision led to Illinois passing a concealed carry statute earlier this year, although it has not yet really taken effect yet (as no permits have been issued).  The Illinois Supreme Court noted that they were ruling on the former law, not the current law.  This means that the ruling will have a limited effect.

Of course, the gun rights people (at least those that are not lawyers) have put their own spin on this and I’m sure it won’t be long until some idiot decides that this means he can carry whenever and however he wants.

Some people will be getting their charges dropped, sure.  The AUUW statute barred all carry until it was amended July 9, 2013, so people who were charged before that date have a pretty clear-cut road to the charges being dismissed.  The problem arises with the skewed interpretation that some of the gun rights people are putting on this.  They believe that since the old AUUW law was unconstitutional, then it was void (technically correct) and any amendment to the law was pointless (totally incorrect).

When the AUUW law was amended, it cured the problems brought up by both the Seventh Circuit and the Illinois Supreme Court.  The AUUW law was unconstitutional because it had no provision for “bearing” arms outside of the home.  As of July 9th, it has that provision.  Ergo, it will be presumed to be a valid law again.

Someone is going to carry and become a new test case–and I wouldn’t want to be that guy, because he’ll lose.

 

Constitution for Dummies

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This is Why “Sovereign Citizens” Lose in Court

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I was watching a video on RT about sovereign citizens, and the “expert” sovereign citizen, Alfred Adask, was explaining why people are sovereign.  He cited a U.S. Supreme Court case, Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), in support of his position.  Adask noted that the case talked about the sovereignty of the people in regards to their ability to sue the government, specifically a state government of another state, as was provided for in the U.S. Constitution.  It was about the principle of sovereign immunity.  The Constitution said:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Const. art. III, § 2, cl. 1 (emphasis added).

The Court found that it had jurisdiction to hear the case, and since the State of Georgia refused to appear, Chisholm was granted a default judgment.

Adask took one small section of the ruling and applied it out of context, and completely ignores that Chisholm is no longer good law.  You see, right after the decision, both Congress and the several States were shocked.  They never thought that a suit by a citizen against the government of a state would be allowed, under the age-old principle of sovereign immunity.  So they changed the law.  The only way to change a section of the Constitution is by amendment, and the Eleventh Amendment was passed by Congress and ratified by the States.  It reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 

U.S. Const. amend. XI.
The ruling in Chisholm has been “superseded by statute” or no longer valid.  This has been clearly recognized by the courts.  Comments in those opinions are clear.

  • “The decision “created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.”  Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97 (1984).
  • “The Amendment’s language overruled the particular result in Chisholm, but this Court has recognized that its greater significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.   Id. at 98.
  • “[T]he Constitution does not embrace authority to entertain a suit brought by private parties against a state without consent given….”  In re State of New York, 256 U.S. 490, 497 (1921).
  • “This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the supreme court.”  Hans v. Louisiana, 134 U.S. 1 (1890).
  • “[T]he amendment being constitutionally adopted, there could not be exercised any jurisdiction [by the Court], in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.”  Hollingsworth v. State of Virginia, 3 U.S. (3 Dall.) 378, 382 (1798).

Had Adask consulted an attorney, he could have avoided making a fool of himself.  It is not enough to know what the words on the paper say, one has to determine if a subsequent court has modified, overturned, narrowed, or otherwise affected the original ruling.  It is one of the basic principles of common law, which is supposedly the basis and the backbone of the sovereign citizen movement.

Of course Adask, a former roofer, has been meddling in the law for years, primarily publishing the Anti-Shyster magazine (at least until 2002).

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