We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness – that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …
– Declaration of Independence
Anthony Mitchell of Henderson, Nevada, was sitting in his home on July 10, 2011, when the phone rang. It was police, asking for permission to use his house to conduct a surveillance operation on one of his neighbors, named as a suspect in a domestic violence call. Mr. Mitchell refused – he didn’t want to get involved.
And why should he? It’s his home, and his right to refuse. But police weren’t happy with that response and, minutes later, five of them allegedly stood on his front door demanding to be let in, and ultimately forced entry with a metal ram.1 Once inside the home, the police reportedly ordered him to the floor and began issuing conflicting orders: Crawl over here. Lay down. Stay still.2
They pointed a gun at his body and terrified him into a prostrate position on the floor, various media outlets reported.3
They also allegedly shot his dog with pepperball projectiles, shot Mitchell with pepperball rounds, and all the while kept cursing at him. Finally – and unbelievably – they arrested him for obstruction of a police officer, searched through his house, and moved his furniture around to create the strategic lookout for their domestic abuse investigation. The criminal charges against Mitchell were later dropped, but only after he had spent nine hours in jail.4
Talk about tyranny. Sounds more like a covert KGB mission from old-timey Soviet Union days.
Mitchell, as might be expected, filed a lawsuit against the City of Henderson, the Henderson police chief and five officers, the City of North Las Vegas, and that city’s police chief.
Obviously Mitchell alleged his Fourth Amendment protections against unreasonable searches and seizures were abused. But what is perhaps unexpected is Mitchell’s claim that his Third Amendment rights were also violated. That’s the clause that prohibits the government from quartering soldiers in residential homes during times of peace, without permission of the owner. While that is a rare accusation in modern-day America, in Founding Father times, such threats were real and commonplace.5
The creators of America’s constitutional system of governance recalled in the lead-up to the Revolutionary War, when tensions were at all-time highs, how colonists were forced to endure the occupation of the enemy – the king’s soldiers – in their very own homes. The founders wanted to prevent the new government from ever wielding or exercising such power, and thus, the Third Amendment was born: “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.”
Mitchell’s attorney argued in court documents that the Third Amendment applies to police and law enforcement acting in militaristic manner too.
And why wouldn’t it? After all, a government official storming a private home is a threat to that homeowner, whether that official is wearing a military uniform or police garb. Moreover, both draw salaries from taxpayers; both are representatives of the government.
Do we really want a country where police are free to operate absent recognition of a core American principle – that of a home being one’s castle? Chaos could result.
For an extreme example, one need only look back to April 2013 to Boston, Massachusetts, when police were combing the area for marathon bombing suspects Tamerlan and Dzhokhar Tsarnaev. Scores of police sealed off entire neighborhoods, scouring streets and mapping out a crime grid, collecting evidence and analyzing thousands of pieces of items for clues to the bombers’ whereabouts. They ultimately tracked the suspects’ stolen black SUV to a Greater Boston area town, Watertown, and a shootout soon ensued.
Police and the Tsarnaev brothers reportedly traded more than 250 bullets in a dramatic street shootout near midnight that spanned more than four minutes.6 Tamerlan was killed – hit and dragged thirty feet by the SUV his brother drove. Dzhokhar fled into the dark. And after tending to their shot and wounded, police officers pursued.
According to local media, one resident who heard the commotion and speeding cars stepped onto his porch, just in time to see a black SUV speed down the road. Forty-five seconds later, police cruisers slowed in front of his home, and he directed them to continue up the road, pointing the way of the SUV. Within minutes, police officers, SWAT teams, and National Guard soldiers swarmed into the neighborhood, sending dogs to sniff the grounds and pulling residents from their homes to perform room-by-room searches. One resident recounted how officers scoured through backyards, basements, and garages as neighbors were forced into the streets, clutching cell phones and wearing sweatpants, bathrobes, and other nighttime attire.7
Police, meanwhile, set up a command post at a nearby mall. Various media reported that anyone who walked the streets in the early morning was automatically stopped and searched.8 The Boston police chief said that hundreds of homes in the area – a twenty-block grid that was mapped around the black SUV that Tsarnaev drove, after it was discovered abandoned – were entered and searched. Around 1:10 a.m., officers patrolling the streets saw what they characterized as a suspicious-looking man, and stripped him and cuffed him. They let him go a few minutes later after learning that he actually lived on the street they were patrolling.9
Overnight, Watertown was transformed into a military war zone. Hundreds of uniformed tactical teams patrolled the streets, heavily armed officers scurried back and forth from the nearby shopping mall–turned-command post, and armored trucks navigated through the neighborhoods.10 The city was most definitely under lockdown. Agents and dogs went door-to-door, asking residents for information, reportedly requesting permission to search their homes, while patrolling their backyards and peering into garages and combing for any bit of evidence that would lead to the discovery of Tsarnaev.11
Not all the home searches were conducted with residential permission, however.
A YouTube video shows several armed and uniformed agents on the porch of one purported Watertown home, pounding on the door, brandishing weapons, and ordering the residents – with arms raised – onto the streets. Agents enter the home, guns drawn, while several others stand in strategic street locations, weapons trained on the door.12
In another incident recounted to the media, a Watertown woman in her seventies, named Karolyn Kurkjian Jones, was in her living room and heard a knock at her door. Simultaneously, her phone rang and the voice on the other end of the line ordered her to open her door. She did – and was immediately confronted by a sea of SWAT team agents with guns pointed her way. In the street was an armored vehicle, surrounded by snipers. And across the road, in a church parking lot, were another sixty or seventy armed and uniformed officers and National Guard troops, all training shotguns and rifles at her front door.13
Within thirty minutes, police had cuffed, taken into custody, and transported the woman to a nearby hospital for a physical and psychological evaluation. She was told only that authorities had received a text from someone in the house who was supposedly being held hostage. Police, meanwhile, entered her home and searched it. They found nothing – no hostage, no signs of struggle, no intruder.14
Two months later, after making inquiries and enlisting the help of the Boston police commissioner, Kurkjian Jones learned the truth of what happened that day: SWAT teams miscommunicated and went to the wrong home. Oops. Police later apologized, and even the woman’s family recognized that their search and seizure – while alarming and unsettling at best – was actually conducted in a manner that showed restraint, considering the harrowing circumstances in Watertown at that time.15
But taken collectively, these stories do give rise to a crucial debate: Police overkill? Or proper response, given the terroristic nature of the Boston bombing?
That’s definitely a question for the civil rights case books. But the larger point is this: America is not immune to a police state. Pressed, government will take actions that smack more of dictatorship-type rule than constitutional law. That’s not a criticism of police reaction to the Boston bombing and search for suspects. That’s just a detached reflection on the facts: when danger dawns, safety trumps civil rights.
Our Founding Fathers knew and warned of this very thing. Recall Benjamin Franklin’s caveat: “Those who surrender freedom for security will not have, nor do they deserve, either one.”
The difficulty, of course, is applying that caveat in a pragmatic manner. And it doesn’t get more pragmatic than this: If you were a police officer in Watertown and watched Dzhokhar Tsarnaev shoot and wound your partner, would you think twice about ordering residents from their homes if you thought the suspect had run into the basement? How about if you were standing at the finish line of the Boston Marathon and an explosion occurred, and suddenly the streets were filled with bodies and body parts, or if you were one moment from finishing the running race of your life and then your leg was gone – would you give a flip about police barging into a home and ousting the residents because they were trying to locate the bomber?
It’s easy to talk civil rights and constitutional privacy protections from the safety of an office or in the confines of a courtroom. But faced with a bomber who’s sending scores of bullets your way, civil rights looks a bit different. And in the case of Boston, that’s an anomaly. It’s not often in America that law enforcement is tasked to respond to a citywide lockdown.
But here’s the thing: Commonsense Americans may see Boston’s response to a most distressing event as chaotic, yet necessary, and be willing to excuse any civil rights infractions as a distasteful casualty in the pursuit of evil. But these same commonsense Americans know the difference between extreme circumstances that call for extreme responses and a police-state mentality that’s run amok.
Storming a home in a furious pursuit of a terrorist who stands accused of a horrific aggression on America’s own soil is one thing. Storming a home and firing pepperball rounds at a property owner and his dog in order to set up spy shop for a neighbor’s domestic complaint is quite another.
The war on terrorism that took off September 11, 2001, may have been a necessary response to an egregious attack that killed thousands of innocent Americans. But much of what’s ensued since, in the name of keeping America safe, has crossed the line from commonsense action to civil rights atrocity. Much of America’s fight for security nowadays is driven by personal agendas, special rights, unequally applied laws, political considerations – to include a great deal of political correctness – and the complete forgetfulness of and disregard for what really made this nation great in the first place: our rights come from God, not government.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” and that governments are supposed to secure these rights – not grant them.
Nowadays, that founding premise is considered radical. Heck, even our Founding Fathers are often regarded as radicals – terrorists, even, by some.
In 2012, reports surfaced that some Texas schools were teaching students that the Boston Tea Party was not as much a warranted act of rebellion, undertaken by American colonists as a last-straw message to the king of England to quit the overtaxing, as it was an example of terrorism. The lesson, compliments of the nonprofit CSCOPE Curriculum Management System, drew widespread outrage, and in May 2013, Texas lawmakers passed a measure that banned teachers from using that particular course material.16 But can you imagine such a notion sailing in America’s schools one hundred years ago?
It was the colonists’ rebellion against burdensome English taxes, after all, that ultimately led to the inclusion of the Fourth Amendment – the one that guards Americans against unlawful searches and seizures and protects against government-sponsored privacy infringements.17 In founding times, the British government saw colonial America as a pure moneymaking investment, and imposed taxes and fees at whim. Colonists grew angry with the treatment and tried to bypass the burdensome tax system with smuggling operations. The British government responded with “writs of assistance,” legal documents that granted officers of the king broad search and seizure powers that let them enter colonists’ homes and scour through their properties for almost any reason at all.18 The writs resulted in the random confiscations of colonists’ properties on a widespread basis.
Massachusetts was the first to put a damper on the Brits’ general warrant system, passing a ban on their use in 1756. Then in 1776, George Mason included prohibitions against general warrants in his Virginia Declaration of Rights – a document Thomas Jefferson used later as a stepping-stone when writing the Declaration of Independence.
In hashing out the Constitution, anti-Federalists and Federalists finally reached a consensus to include a Bill of Rights, limiting the federal government’s powers and upholding the rights of the individual – and abolishing the hated writs system.
Originally intended as a rein on the federal government, the Fourth Amendment has since been applied to the state and local governments via various Supreme Court and lesser court rulings as well. It reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, 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.”
Seems pretty clear-cut.
It’s curious, then, to read of cases like Barnes v. Indiana, where the state’s highest court ruled in May 2011 that a homeowner has “no right to reasonably resist unlawful entry by police officers.”19 That would seem in direct conflict with the Fourth Amendment – and the “writs of assistance” system the founders worked so hard to annul.
The case focused on a November 2007 incident involving an Indiana homeowner, Richard Barnes; his wife, Mary; and police who responded to a call of domestic violence. Richard and Mary argued in their apartment, then outside in the parking lot, and that’s where an officer met them and followed them back to the front door of their home. Mary entered the apartment and Richard followed, but he then turned and stood in the doorway to prevent the officer’s entrance. Richard told the officer he couldn’t enter, and while Mary didn’t expressly forbid him from entering, she never gave verbal permission either. The officer pushed into the home, however, and Richard shoved him against the wall.20 They struggled, and the officer ultimately used a Taser and choke hold to subdue and arrest Richard.21
Richard was found guilty in court of battery against a police officer, resisting law enforcement, and disorderly conduct.22 Richard appealed, though, saying the court did not advise the jury of a citizen’s reasonable right to resist unlawful entry into a home as part of the pre-deliberative process.23
The case ultimately ended up in Indiana Supreme Court – but for Fourth Amendment defenders it probably would have been better if it had stayed at a lower court level, where it wouldn’t have received national attention. What if other courts see this case as cause for similar rulings?
This is part of the Indiana Supreme Court’s finding: “We believe... that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence... Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ‘hot pursuit’ of the arrestee.” The court also said that police are often called on to investigate crimes that are rapidly changing, and should therefore be given the latitude to take swift action to adjust to events that are in progress. The court ruling continues: “It is unrealistic to expect officers to wait for threats to escalate” as cause to intervene. “In sum, we hold that [in] Indiana, the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”24
That’s a marked morphing from Founding Father intent.
It’s certainly a dark cloud that hovers over America’s Constitution, the right of an individual to hold private property, and the centuries-old guarantee against unlawful government searches and seizures.
By itself, the court’s ruling is troubling. Even a legal layman can read the court’s logic and understand how that stroke of pen cut deep into individual rights and simultaneously opened the door to government oppression. But viewed in a wider prism – as a reflection of where we are in America, circa twenty-first century, and where our collective thought process lies in terms of respecting the principles upon which our government was founded – it’s downright scary.
Here’s why: The road to tyranny isn’t always lit by in-your-face, direct offenses to freedom. It sometimes winds down narrow, indirect paths that are paved with good intentions that are actually dramatic trouncings of freedom – sometimes revealed years later, when the damage is already done. So if we as a nation can’t put a stop to the direct steps toward tyrannical rule or police-state governance, if we have advanced to the point where rulings like what came from Indiana’s highest court can actually stand as law, then how can we stop the more insidious threats to freedom?
How will we even be able to recognize them?