Seton Hall Constitutional L.J. 2001, 685
ARE COPS CONSTITUTIONAL?
Roger Roots*
ABSTRACT
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.
PART I
INTRODUCTION................................................................686
THE CONSTITUTIONAL TEXT..............................................688
PRIVATE PROSECUTORS....................................................689
LAW ENFORCEMENT AS A UNIVERSAL................................692
POLICE AS SOCIAL WORKERS.............................................695
THE WAR ON CRIME..........................................................696
THE DEVELOPMENT OF DISTINCTIONS................................698
RESISTING ARREST............................................................701
THE SAFETY OF THE POLICE PROFESSION............................711
PROFESSIONALISM?..........................................................713
DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE........716
COPS NOT COST-EFFECTIVE DETERRENT.............................721
PART II
POLICE AS A STANDING ARMY...........................................722
THE SECOND AMENDMENT........725
THE THIRD AMENDMENT...................................................727
THE RIGHT TO BE LEFT ALONE...........................................728
THE FOURTH AMENDMENT................................................729
WARRANTS A FLOOR, NOT A CEILING.................................733
PRIVATE PERSONS AND THE FOURTH AMENDMENT..............734
ORIGINALISTS CALL FOR CIVIL DAMAGES...........................739
DEVELOPMENT OF IMMUNITIES..........................................743
THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF PROBABLE SUSPICION................................................744
POLICE AND THE "AUTOMOBILE EXCEPTION"......................745
ONE EXCEPTION: THE EXCLUSIONARY RULE?......................747
THE FIFTH AMENDMENT....................................................751
DUE PROCESS...................................................................752
ENTRAPMENT...................................................................754
CONCLUSION...................................757
PART I
INTRODUCTION
Uniformed police officers are the most visible element of America's criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide.1 Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services.2 Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America's roads and street corners as anything peculiar ? let alone invalid or unconstitutional.
Yet the dissident English colonists who framed the United States Constitution would have seen this modern 'police state' as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown.3 The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance).4 Initiation and investigation of criminal cases was the nearly exclusive province of private persons.
At the time of the Constitution's ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay.5 Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation ? whether civil or criminal ? and the state was rarely a party. Professional police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order.6 The role of these "nightly watch" officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.7
While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution's imposed scheme of criminal justice.8 "Originalist" scholars of the Constitution have tended to be supportive, rather than critical of modern policing.9 This article will show, however, that modern policing violates the Framers' most firmly held conceptions of criminal justice.
The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state's interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others.10 Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.
THE CONSTITUTIONAL TEXT
The Constitution contains no explicit provisions for criminal law enforcement.11 Nor did the constitutions of any of the several states contain such provisions at the time of the Founding.12 Early constitutions enunciated the intention that law enforcement was a universal duty that each person owed to the community, rather than a power of the government.13 Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state.14
PRIVATE PROSECUTORS
For decades before and after the Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution: (1) victims of serious crimes approached a community grand jury, (2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and (3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men.15 Criminal actions were only a step away from civil actions ? the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim.16 Private prosecutors acted under authority of the people and in the name of the state ? but for their own vindication.17 The very term "prosecutor" meant criminal plaintiff and implied a private person.18 A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation's founding.19 When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name ? even if the attorney general himself did not approve of the action.20
Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication.21 Crime victims held the keys to a potential defendant's fate and often negotiated the settlement of criminal cases.22 After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant.23 Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and "not to make bargains to allow [defendants] to escape conviction, if they ... repair the injury."24
Grand jurors often acted as the detectives of the period. They conducted their investigations in the manner of neighborhood sleuths, dispersing throughout the community to question people about their knowledge of crimes.25 They could act on the testimony of one of their own members, or even on information known to grand jurors before the grand jury convened.26 They might never have contact with a government prosecutor or any other officer of the executive branch.27
Colonial grand juries also occasionally served an important law enforcement need by account of their sheer numbers. In the early 1700s, grand jurors were sometimes called upon to make arrests in cases where suspects were armed and in large numbers.28 A lone sheriff or deputy had reason to fear even approaching a large group "without danger of his life or having his bones broken."29 When a sheriff was unable to execute a warrant or perform an execution, he could call upon a posse of citizens to assist him.30 The availability of the posse comitatus meant that a sheriffs resources were essentially unlimited.31
LAW ENFORCEMENT AS A UNIVERSAL DUTY
Law enforcement in the Founders' time was a duty of every citizen.32 Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond "not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand."33 Any person could act in the capacity of a constable without being one,34 and when summoned by a law enforcement officer, a private person became a temporary member of the police department.35 The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.36
Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.37 But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers' era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.38
The Founders could not have envisioned 'police' officers as we know them today. The term "police" had a slightly different meaning at the time of the Founding.39 It was generally used as a verb and meant to watch over or monitor the public health and safety.40 In Louisiana, "police juries" were local governing bodies similar to county boards in other states.41 Only in the mid-nineteenth century did the term 'police' begin to take on the persona of a uniformed state law enforcer.42 The term first crept into Supreme Court jurisprudence even later.43
Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.44 Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.45 Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.46
At the time of Tocqueville's observations (in the 1830s), "the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,"47 yet Tocqueville doubted "whether in any other country crime so seldom escapes punishment."48 Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.49 Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.50 Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.51
Formal criminal justice institutions dealt only with the most severe crimes. Misdemeanor offenses had to be dealt with by the private citizen on the private citizen's own terms. "The farther back the [crime rate] figures go," according to historian Roger Lane, "the higher is the relative proportion of serious crimes."52 In other words, before the advent of professional policing, fewer crimes ? and only the most serious crimes ? were brought to the attention of the courts.
After the 1850s, cities in the northeastern United States gradually acquired more uniformed patrol officers. The criminal justice model of the Framers' era grew less recognizable. The growth of police units reflected a "change in attitude" more than worsening crime rates.53 Americans became less tolerant of violence in their streets and demanded higher standards of conduct.54 Offenses which had formerly earned two-year sentences were now punished by three to four years or more in a state penitentiary.55
POLICE AS SOCIAL WORKERS
Few of the duties of Founding-era sheriffs involved criminal law enforcement. Instead, civil executions, attachments and confinements dominated their work.56 When professional police units first arrived on the American scene, they functioned primarily as protectors of public safety, health and welfare. This role followed the "bobbie" model developed in England in the 1830s by the father of professional policing, Sir Robert Peel.57
Early police agencies provided a vast array of municipal services, including keeping traffic thoroughfares clear. Boston police made 30,681 arrests during one fiscal year in the 1880s, but in the same year reported 1,472 accidents, secured 2,461 buildings found open, reported thousands of dangerous and defective streets, sidewalks, chimneys, drains, sewers and hydrants, tended to 169 corpses, assisted 148 intoxicated persons, located 1,572 lost children, reported 228 missing (but only 151 found) persons, rescued seven persons from drowning, assisted nearly 2,000 sick, injured, and insane persons, found 311 stray horse teams, and removed more than fifty thousand street obstructions.58
Police were a "kind of catchall or residual welfare agency,"59 a lawful extension of actual state 'police powers.'60 In the Old West, police were a sanitation and repair workforce more than a corps of crime-fighting gun-slingers. Sheriff Wyatt Earp of OK Corral fame, for example, repaired boardwalks as part of his duties.61
THE WAR ON CRIME
Toward the end of the nineteenth century, police forces took on a brave new role: crime-fighting. The goal of maintaining public order became secondary to chasing lawbreakers. The police cultivated a perception that they were public heroes who "fought crime" in the general, rather than individual sense.
The 1920s saw the rise of the profession's second father ? or perhaps its wicked stepfather ? J. Edgar Hoover.62 Hoover's Federal Bureau of Investigation (FBI) came to epitomize the police profession in its sleuth and intelligence-gathering role. FBI agents infiltrated mobster organizations, intercepted communications between suspected criminals, and gathered intelligence for both law enforcement and political purposes.
This new view of police as soldiers locked in combat against crime caught on quickly.63 The FBI led local police to develop integrated repositories of fingerprint, criminal, and fraudulent check records. The FBI also took over the gathering of crime statistics (theretofore gathered by a private association),64 and went to war against "Public Enemy Number One" and others on their "Ten Most Wanted" list.65 Popular culture began to see police as a "thin blue line," that "serves and protects" civilized society from chaos and lawlessness.66
THE ABSENCE OF CONSTITUTIONAL CRIME-FIGHTING POWER
But the constitutions of the Founding Era gave no hint of any thin blue line. Nothing in their texts enunciated any governmental power to "fight crime" at all. "Crime-fighting" was intended as the domain of individuals touched by crime. The original design under the American legal order was to restore a semblance of private justice. The courts were a mere forum, or avenue, for private persons to attain justice from a malfeasor.67 The slow alteration of the criminal courts into a venue only for the government's claims against private persons turned the very spirit of the Founders' model on its head.
To suggest that modern policing is extraconstitutional is not to imply that every aspect of police work is constitutionally improper.68 Rather, it is to say that the totality and effect of modern policing negates the meaning and purpose of certain constitutional protections the Framers intended to protect and carry forward to future generations. Modern-style policing leaves many fundamental constitutional interests utterly unenforced.
Americans today, for example, are far more vulnerable to invasive searches and seizures by the state than were the Americans of 1791.69 The Framers lived in an era in which much less of the world was in "plain view" of the government and a "stop and frisk" would have been rare indeed.70 The totality of modern policing also places pedestrian and vehicle travel at the mercy of the state, a development the Framers would have almost certainly never sanctioned. These infringements result not from a single aspect of modern policing, but from the whole of modern policing's control over large domains of private life that were once "policed" by private citizens.
THE DEVELOPMENT OF DISTINCTIONS
The treatment of law enforcement in the courts shows that the law of crime control has changed monumentally over the past two centuries. Under the common law, there was no difference whatsoever between the privileges, immunities, and powers of constables and those of private citizens. Constables were literally and figuratively clothed in the same garments as everyone else and faced the same liabilities ? civil and criminal ? as everyone else under identical circumstances. Two centuries of jurisprudence, however, have recast the power relationships of these two roles dramatically.
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.71 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.72 It remains somewhat of a mystery, however, where this distinction was first drawn.73 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.74
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.75 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.76 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.77
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 laws78 and from laws regulating the use of equipment such as radio scanners, body armor, and infrared scopes.79 Legislatures also exempted police from toll road charges,80 granted police confidential telephone numbers and auto registration,81 and even exempted police from fireworks regulations.82 Police are also protected by other statutory immunities and protections, such as mandatory death sentences for defendants who murder them,83 reimbursement of moving expenses when officers receive threats to their lives,84 and even special protections from assailants infected with the AIDS virus.85 Officers who illegally eavesdrop, wiretap, or intrude upon privacy are protected by a statutory (as well as case law) "good faith" defense,86 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.88
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.89 Advocates of the Bill of Rights saw the chief danger of government as the inherently aristocratic and disparate power of government authority.90 Founding-era constitutions enunciated the principle that all men are "equally free" and that all government is derived from the people.91
RESISTING ARREST
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.92 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.93 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.94
Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations.95 Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody.96 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."97
By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance,98 (2) criminalized the resistance of any officer acting in his official capacity,99 (3) eliminated the requirement that an arresting officer present his warrant at the scene,100 and (4) drastically decreased the number and types of arrests for which a warrant is required.101 Although some state courts have balked at this march toward efficiency in favor of the state,102 none require the level of protection known to the Framers.103
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.104 Substantive due process principles require that the government interfere with such a right only to further a compelling state interest105 ? and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest.106 Thus, the advent of professional policing has endangered important rights of the American people.
The changing balance of power between police and private citizens is illustrated by the power of modern police to use violence against the population.107
As professional policing became more prevalent in the twentieth century, police use of deadly force went largely without clearly delineated guidelines (outside of general tort law).108 Until the 1970s, police officers shot and killed fleeing suspects (both armed and unarmed) at their own discretion or according to very general department oral policies.109 Officers in some jurisdictions made it their regular practice to shoot at speeding motorists who refused orders to halt.110 More than one officer tried for murder in such cases ? along with fellow police who urged dismissals ? argued that such killings were in the discharge of official duties.111 Departments that adopted written guidelines invariably did so in response to outcries following questionable shootings.112 Prior to 1985, police were given near total discretion to fire on the public wherever officers suspected that a fleeing person had committed a felony.113 More than 200 people were shot and killed by police in Philadelphia alone between 1970 and 1983.114
In 1985, the United States Supreme Court purported to stop this carnage by invalidating the use of deadly force to apprehend unarmed, nonviolent suspects.115 Tennessee v. Garner116 involved the police killing of an unarmed juvenile burglary suspect who, if apprehended alive, would likely have been sentenced to probation.117 The Court limited police use of deadly force to cases of self defense or defense of others.118
As a practical matter, however, the Garner rule is much less stringent. Because federal civil rights actions inevitably turn not on a strict constitutional rule (such as the Garner rule), but on the perception of a defendant officer, officers enjoy a litigation advantage over all other parties.119 In no reported case has a judge or jury held an officer liable who used deadly force where a mere "reasonable" belief that human life was in imminent danger existed.120 Some lower courts have interpreted Garner to permit deadly force even where suspects pose no immediate and direct threat of death or serious injury to others.121 The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability of an agent who shot and killed an innocent person to prevent another person from retreating to "take up a defensive position," drawing criticism from Judge Kozinski that the court had adopted the "007 standard" for police shootings.122
Untold dozens, if not hundreds, of Americans have been shot in the back while fleeing police, even after the Garner decision. Police have shot and killed suspects who did nothing more than make a move,123 reach for their identification too quickly,124 reach into a jacket or pocket,125 "make a motion" of going for a gun,126 turn either toward or away from officers,127 'pull away' from an officer as an officer opened a car door,128 rub their eyes and stumble forward after a mace attack,129 or allegedly lunge with a knife,130 a hatchet,131or a ballpoint pen.132 Cops have also been known to open fire on and kill persons who brandished or refused to drop virtually any hand-held object ? a Jack Daniel's whiskey bottle,133 a metal rod,134 a wooden stick,135 a kitchen knife (even while eating dinner),136 a screwdriver,137 a rake138 ? or even refused an order to raise their hands.139
Cops who shoot an individual holding a shiny object that can be said to resemble a gun ? such as a cash box,140 a shiny silver pen,141 a TV remote control,142 or even a can opener143 ? are especially likely to avoid liability. In line with this defense, police officers nationwide have been caught planting weapons on their victims in order to make shootings look like self defense.144 In one of the more egregious examples ever proven in court, Houston police were found during the 1980s to have utilized an unofficial policy of planting guns on victims of police violence.145 Seventy-five to eighty percent of all Houston officers apparently carried "throw-down" weapons for such purposes.146 Only the dogged persistence of aggrieved relatives and the firsthand testimony of intrepid witnesses unraveled the police cover-up of the policy.147
Resisting arrest, defending oneself, or fleeing may also place an American in danger of being killed by police.148 Although the law clearly classifies such killings as unlawful, police are rarely made to account for such conduct in court.149 Only where the claimed imminent threat seems too contrived ? such as where an officer opened fire to defend himself from a pair of fingernail clippers150 ? or where abundant evidence of a police cover-up exists, will courts uphold damage awards against police officers who shoot civilians.151
As Professor Peter L. Davis points out, there is no good reason why police should not be liable criminally for their violations of the criminal code, just as other Americans would expect to be (and, indeed, as the constables of the Founding Era often were).152 Yet in modern criminal courts, police tend to be more bulletproof than the Kevlar vests they wear on the job. Remember that the district attorneys responsible for prosecuting police for their crimes are the same district attorneys who must defend those officers in civil cases involving the same facts.153 Under the Framers' common law, this conflict of interest did not arise at all because a citizen grand jury ? independent from the state attorney general ? brought charges against a criminal officer, and the officer's victim prosecuted the matter before a petit jury.154 But the modern model of law enforcement provides no real remedy, and no ready outlet for the law to work effectively against police criminals. Indeed, modern policing acts as an obstruction of justice with regard to police criminality.
The bloodstained record of shootings, beatings, tortures and mayhem by American police against the populace is too voluminous to be recounted in a single article.155 At least 2,000 Americans have been killed at the hands of law enforcement since 1990.156 Some one-fourth of these killings ? about fifty per year ? are alleged by some authorities to be in the nature of murders.157 Yet only a handful have led to indictment, conviction and incarceration.158 This is true even though most police killings involve victims who were unarmed or committed no crime.159
Killings by police seem as likely as killings by death-row murderers to demonstrate extreme brutality or depravity. Police often fire a dozen or more bullets at a victim where one or two would stop the individual.160 Such indicia of viciousness and ferocity would qualify as aggravating factors justifying the death penalty for a civilian murderer under the criminal laws of most states.161
From the earliest arrival of professional policing upon America's shores, police severely taxed both the largess and the liberties of the citizenry.162 In early municipal police departments, cops tortured, harassed and arrested thousands of Americans for vagrancy, loitering, and similar "crimes," or detained them on mere "suspicion."163 Where evidence was insufficient to close a case, police tortured suspects into confessing to crimes they did not commit.164 In the name of law enforcement, police became professional lawbreakers, "constantly breaking in upon common law and ... statute law."165 In 1903 a former New York City police commissioner remarked that he had seen "a dreary procession of citizens with broken heads and bruised bodies against few of whom was violence needed to affect an arrest.... The police are practically above the law."166
THE SAFETY OF THE POLICE PROFESSION
Defenders of police violence often cite the dangerous nature of police work, claiming the police occupation is filled with risks to life and health. Police training itself ? especially elite SWAT-type or paramilitary training that many officers crave ? reinforces the "dangerousness" of police work in the officers' own minds.167 There is some truth to this perception, in that around one hundred officers are feloniously killed in the line of duty each year in the United States.168
But police work's billing as a dangerous profession plummets in credibility when viewed from a broader perspective. Homicide, after all, is the second leading cause of death on the job for all American workers.169 The taxicab industry suffers homicide rates almost six times higher than the police and detective industry.170 A police officer's death on the job is almost as likely to be from an accident as from homicide.171 When overall rates of injury and death on the job are examined, policing barely ranks at all. The highest rates of fatal workplace injuries occur in the mining and construction industries, with transportation, manufacturing and agriculture following close behind.172 Fully 98 percent of all fatal workplace injuries occur in the civilian labor force.173
Moreover, police work is generously rewarded in terms of financial, pension and other benefits, not to mention prestige. Police salaries may exceed $100,000 annually plus generous health insurance and pension plans ? placing police in the very highest percentiles of American workers in terms of compensation.174 The founding generation would have been utterly astonished by such a transfer of wealth to professional law enforcers.175 This reality of police safety, security and comfort is one of the best-kept secrets in American labor.
In all, it is questionable whether modern policing actually decreases the level of bloodshed on American streets. Police often bring mayhem, confusion and violence wherever they are called.176 Approximately one-third of the people killed in high-speed police car chases (which are often unnecessarily escalated by police) are innocent bystanders.177 Cops occasionally prevent rather than execute rescues.178 "Police practices" ranked as the number one cause of violent urban riots of the 1960s.179 Indeed, police actively participated in or even initiated some of the nation's worst riots.180 During the infamous Chicago Police Riot during the Democratic National Convention in 1968, police physically attacked 63 newsmen and indiscriminately beat and clubbed numerous innocent bystanders.181
PROFESSIONALISM?
If the modern model of cop-driven criminal justice has any defense at all, it is its "professionalism." Private law enforcement of the type intended by the Framers was supposedly more inclined toward lax and arbitrary enforcement than professional officers who are sworn to uphold the law.182 Upon scrutiny, however, the claim that professional police are more reliable, less arbitrary, and more capable of objective law enforcement than private law enforcers is drastically undermined.
The constitutional model of law enforcement (investigation by a citizen grand jury, arrest by private individuals, constables or citizens watch, and private prosecution) became seen as inefficient and ineffective as America entered its industrial age.183 Yet the grand jury in its natural and unhobbled state is more, rather than less, able to pursue investigations when compared to professional police. Grand jurors are not constrained by the Fourth, Fifth or Sixth amendments ? or at least the "exclusionary rule" fashioned by the courts to enforce those amendments.184
In the absence of police troops to enforce the law, the early criminal justice system was hardly as hobbled and impotent as conventional wisdom suggests. Private watch groups and broad-based advocacy groups existed to enforce laws and track criminals among jurisdictions. Thousands of local antihorsethief associations and countless 'detecting societies' sprang up to answer the call of crime victims in the nineteenth century.185 In Maine, the "Penobscot Temperance League" hired detectives to investigate and initiate criminal cases against illegal liquor traffickers.186 In the 1870s a private group called the Society for the Suppression of Vice became so zealous in garnering prosecutions of the immoral that it was accused in 1878 of coercing a defendant into mailing birth control information in violation of federal statutes,187 one of the earliest known instances of conduct that later became defined as entrapment.188 Although some of these private crime-fighting groups were invested with limited state law enforcement powers,189 they were not police officers in the modern sense and received no remuneration.
Such volunteer nonprofessionals continue to aid law enforcement as auxiliary officers in many American communities.190 Additionally, private organizations affiliated with regional chambers of commerce, neighborhood watch and other citizens' groups continue to play a substantial ? though underappreciated ? role in fighting crime.191 America also has a long history of outright vigilante justice, although such vigilantism has been exaggerated both in its sordidness192 and in its scope.193
Moreover, government-operated policing is hardly a monopoly even today, neither in maintaining order nor over matters of expertise and intelligence-gathering.194 There are three times more private security guards than public police officers and even activities such as guarding government buildings (including police stations) and forensic analysis are now done by private security personnel.195
The chief selling point for professional policing seems to be the idea that sworn government agents are more competent crime solvers than grand juries, private prosecutors, and unpaid volunteers. But this claim disintegrates when the realities of police personnel are considered. In 1998, for example, forty percent of graduating recruits of the Washington, D.C. police academy failed the comprehensive exam required for employment on the force and were described as "practically illiterate" and "borderline-retarded."196 As a practical matter, police are more dependent upon the public than the public is dependent upon police.197
Cops rely on the public for a very high percentage of their investigation clearances. As the rate of crimes committed by strangers increases, the rate of clearance by the police invariably declines.198 Roughly two-thirds of major robbery and burglary arrests occur solely because a witness can identify the offender, the offender is caught at or near the crime scene, or the offender leaves evidence at the scene.199 In contrast, where a suspect cannot be identified in such ways, odds are high that the crime will go unsolved.200
Studies show that as government policing has taken over criminal investigations, the rates of clearance for murder investigations have actually gone down. For more than three decades ? while police units have expanded greatly in size, power and jurisdiction ? the gap between the number of homicides in the United States and the number of cases solved has widened by almost twenty percent.201 Today, almost three in ten homicides go unsolved.202
DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE
Moreover, a surprisingly high number of police conclusions are simply wrong. Since 1963, at least 381 murder convictions have been reversed because of police or prosecutorial misconduct.203 In the 25-year period following the Supreme Court's ruling in Gregg v. Georgia204 reaffirming the use of capital punishment, one innocent person has been freed from death row for every seven who have been executed.205 In Illinois, Thirteen men have been freed from death row since 1977 after proving their innocence ? more than the twelve who were actually put to death over the same period. Governor George Ryan finally ordered a moratorium on executions until the death penalty system could be revamped,206 referring to the death penalty system as "fraught with error."207
Yet death penalty cases are afforded far more due process and scrutiny of evidence than noncapital cases. If anything, the error rate of police in noncapital cases is likely substantially higher. Governor Ryan's words would seem to apply doubly to the entire system of police-driven investigation.
The advent of DNA analysis in the courtrooms of the 1990s greatly accelerated the rate at which police errors have been proven in court, even while avenues for defendants' appeals have been systematically cut off by Congress and state legislatures.208 DNA testing before trial has exonerated at least 5000 prime suspects who would likely have otherwise been tried on other police evidence.209 Often, exculpatory DNA revelations have come in cases where other police-generated evidence was irreconcilable, suggesting falsification of evidence or other police misconduct.210 The sheer number of wrongly accused persons freed by DNA evidence makes it beyond dispute that police investigations are far less trustworthy than the public would like to believe.211
Even more unjustified is the notion that a justice system powered by professional police possesses higher levels of integrity, trustworthiness and credibility than the criminal justice model intended by the Framers. Within the criminal justice system, cops are regarded as little more than professional witnesses of convenience, if not professional perjurers, for the prosecution.212 Almost no authority credits police with high levels of honesty. Indeed, the daily work of cops requires strategic lying as part of the job description.213 Cops lie about the strength of their evidence in order to obtain confessions,214 about giving Miranda warnings to arrestees when on the witness stand,215 and even about substantive evidence when criminal cases need more support. Cops throughout the United States have been caught fabricating, planting and manipulating evidence to obtain convictions where cases would otherwise be very weak.216 Some authorities regard police perjury as so rampant that it can be considered a "subcultural norm rather than an individual aberration" of police officers.217 Large-scale investigations of police units in virtually every major American city have documented massive evidence tampering, abuse of the arresting power, and discriminatory enforcement of laws according to race, ethnicity, gender, and socioeconomic status. Recent allegations in Los Angeles charge that dozens of officers abused their authority by opening fire on unarmed suspects, planting evidence, dealing illegal drugs, or framing some 200 innocent people.218 More than a hundred prosecutions had to be dismissed in Chicago in 1997 due to similar police misconduct.219 During the infamous "French connection" case of the 1970s, New York City narcotics detectives were caught diverting 188 pounds of heroin and 31 pounds of cocaine for their own use, making the City's Special Investigating Unit the largest heroin and cocaine dealer in the city.220
Police criminality was so acute in New Orleans during the 1980s and 1990s that people were afraid to report crimes for fear that corrupt officers would retaliate or tip off organized crime figures. One New Orleans officer was convicted of ordering the execution of a witness who reported him to the internal affairs unit for allegedly pistol-whipping a teenager.221 Thirty-six Washington, D.C. officers were indicted on charges such as drug dealing, sexual assault, murder, sodomy and kidnapping in 1992.222
In Detroit, repeated corruption allegations have seen a number of low- and high-ranking officers go to prison for drug trafficking, hiring hit men, providing drug protection, and looting informant funds.223 Police burglary rings have been uncovered in several cities.224
Patterns of police abuse tend to repeat themselves in major American cities despite endless attempts at reform.225 New York City police, for example, have been the subject of dozens of wide-ranging corruption probes over the past hundred years226 yet continue to generate corruption allegations.227 Police exhibit unique levels of occupational solidarity.228 Review boards and internal affairs commissions inevitably fail to penetrate police loyalty and find resistance from every rank.229 Cops inevitably form an isolated authoritarian subculture that is both cynical toward the rule of law and disrespectful of the rights of fellow citizens.230 The code of internal favoritism that holds police together may more aptly be described as syndicalism rather than professionalism. Historically, urban police "collected" from local businesses.231 Today, a more subtle brand of racketeering prevails, whereby police assist those businesses which provide support for police and undermine businesses which are perceived as antagonistic to police interests. This same shakedown also applies to newspaper editors and politicians.232
Even at the federal level, where national investigators presume to police corruption and oversee local departments, favoritism toward the police role is rampant. In 1992, for example, the federal government filed criminal charges in only 27 cases of police criminality.233 A federal statute criminalizing violations of the Fourth Amendment has never been enforced even a single time, although it has been a part of the U.S. Code since 1921.234 Throughout the 1980s and '90s, the FBI Crime Laboratory actively abetted the misconduct of local police departments by misrepresenting forensic evidence to bolster police cases against defendants.235
COPS NOT COST-EFFECTIVE DETERRENT
In terms of pure economic returns, police are a surprisingly poor public investment. Typical urban police work is very expensive because police see a primary part of their role as intervention for its own sake ? poking, prodding and questioning the public in hope of turning up evidence of wrongdoing. Toward this end, police spin quick U-turns, drive slowly and menacingly down alleyways, reverse direction to track suspected scofflaws, and conduct sidewalk pat-down searches of potential criminals absent clear indicia of potential criminality.236 Studies indicate, however, that such tactics are essentially worthless in the war on crime. One experiment found that when police do not 'cruise' but simply respond to dispatched calls, crime rates are completely unaffected.237
Thus the very aspect of modern policing that the public view as most effective ? the creation of a 'police presence' ? is in fact a monstrous waste of public resources.238 Similarly, the history of America's expenditures in the war on drugs provides little support for the proposition that money spent on policing yields positive returns.239 University of Chicago professor John Lott has found that while hiring police can reduce crime rates, the net benefit of hiring an additional officer is about a quarter of the benefit from arming the public with an equivalent dollar amount of concealed handguns.240
There is no doubt that modern police are a creation of lawful representative legislatures and are very popular with the general public.241 But the rights of Americans depend upon freedom from government as much as freedom of government.242 Constitutions must provide a countermajoritarian edifice to the threat posed by the will of the masses, and courts must at times pronounce even the most popular programs invalid when they contravene the fundamental liberties of a minority ? or even the whole people at times when they inappropriately devalue their liberties.243
PART II
POLICE AS A STANDING ARMY
It is largely forgotten that the war for American independence was initiated in large part by the British Crown's practice of using troops to police civilians in Boston and other cities.244 Professional soldiers used in the same ways as modern police were among the primary grievances enunciated by Jefferson in the Declaration of Independence. ("[George III] has kept among us standing armies"; "He has affected to render the military independent of and superior to the civil power"; "protecting them, by a mock trial....").245 The duties of such troops were in no way military but involved the keeping of order and the suppression of crime (especially customs and tax violations).
Constitutional arguments quite similar to the thesis of this article were made by America's Founders while fomenting the overthrow of their government. Thomas Jefferson proclaimed that although Parliament was supreme in its jurisdiction to make laws, "his majesty has no right to land a single armed man on our shores" to enforce unpopular laws.246 James Warren said that the troops in Boston were there on an unconstitutional mission because their role was not military but rather to enforce "obedience to Acts which, upon fair examination, appeared to be unjust and unconstitutional."247 Colonial pamphleteer Nicholas Ray charged that Americans did not have "an Enemy worth Notice within 3000 Miles of them."248 "[T]he troops of George the III have cross'd the wide atlantick, not to engage an enemy," charged John Hancock, but to assist constitutional traitors "in trampling on the rights and liberties of [the King's] most loyal subjects ..."249
The use of soldiers to enforce law had a long and sullied history in England and by the mid-1700s were considered a violation of the fundamental rights of Englishmen.250 The Crown's response to London's Gordon Riots of 1780 ? roughly contemporary to the cultural backdrop of America's Revolution ? brought on an immense popular backlash at the use of guards to maintain public order.251 "[D]eep, uncompromising opposition to the maintenance of a semimilitary professional force in civilian life" remained integral to Anglo-Saxon legal culture for another half century.252
Englishmen of the Founding era, both in England and its colonies, regarded professional police as an "alien, continental device for maintaining a tyrannical form of Government."253 Professor John Phillip Reid has pointed out that few of the rights of Englishmen "were better known to the general public than the right to be free of standing armies."254 "Standing armies," according to one New Hampshire correspondent, "have ever proved destructive to the Liberties of a People, and where they are suffered, neither Life nor Property are secure."255
If pressed, modern police defenders would have difficulty demonstrating a single material difference between the standing armies the Founders saw as so abhorrent and America's modern police forces. Indeed, even the distinctions between modern police and actual military troops have blurred in the wake of America's modern crime war.256 Ninety percent of American cities now have active special weapons and tactics (SWAT) teams, using such commando-style forces to do "high risk warrant work" and even routine police duties.257 Such units are often instructed by active and retired United States military personnel.258
In Fresno, California, a SWAT unit equipped with battering rams, chemical agents, fully automatic submachine guns, and 'flashbang' grenades roams full-time on routine patrol.259 According to criminologist Peter Kraska, such military policing has never been seen on such a scale in American history, "where SWAT teams routinely break through a door, subdue all the occupants, and search the premises for drugs, cash and weapons."260 In high-crime or problem areas, police paramilitary units may militarily engage an entire neighborhood, stopping "anything that moves" or surrounding suspicious homes with machine guns openly displayed.261
Much of the importance of the standing-army debates at the ratification conventions has been overlooked or misinterpreted by modern scholars. Opponents of the right to bear arms, for example, have occasionally cited the standing-army debates to support the proposition that the Framers intended the Second Amendment to protect the power of states to form militias.262 Although this argument has been greatly discredited,263 it has helped illuminate the intense distrust that the Framers manifested toward occupational standing armies. The standing army the Framers most feared was a soldiery conducting law enforcement operations in the manner of King George's occupation troops ? like the armies of police officers that now patrol the American landscape.
THE SECOND AMENDMENT
The actual intent of the Second Amendment ? that it protect a right of people to maintain the means of violently checking the power of government ? has been all but lost in modern American society.264 Modern policing's increasing monopoly on firepower tends to undermine the Framers' intent that the whole people be armed, equipped, and empowered to resist the state. Many police organizations lobby incessantly for gun control, even though the criminological literature yields scant empirical support for general gun control as a crime-prevention measure.265
Nor is there much legitimacy to the claim that professional police are more accurate or responsible with firearms than the armed citizenry intended by the Framers. To this day, civilians shoot and kill at least twice as many criminals as police do every year,266 and their 'error rate' is several times lower.267 In a government study of handgun battles that lead to officer injuries, it was found that police who fired upon their killers were less than half as accurate as their civilian, nonprofessional, assailants.268
Moreover, police seem hardly less likely to misuse firearms than the general public.269 In New York City, where private possession of handguns has been virtually eliminated for most civilians, problems with off-duty police misusing firearms have repeatedly surfaced.270 Los Angeles police have been found to fire their weapons inappropriately in seventy-five percent of cases.271 Between early 1989 and late 1992, more than one out of every seven shots fired by Washington, D.C. police officers was fired accidentally.272
THE THIRD AMENDMENT
Although standing armies were not specifically barred by the final version of the Constitution's text, some authorities have pointed to the Third Amendment273 as a likely fount for such a conceptual proposition.274 Additionally, the Amendment's proscription of quartering troops in homes might well have been interpreted as a general anti-search and seizure principle if the Fourth Amendment had never been enacted.275 The Third Amendment was inspired by sentiments quite similar to those that led to passage of the Second and Fourth Amendments, rather than fear of military operations. Writing in the 1830s, Justice Story regarded the Third Amendment as a security that "a man's house shall be his own castle, privileged against all civil and military intrusion."276
The criminal procedure concerns that dominated the minds of the Framers of the Bill of Rights were created not only before the Revolution but also after it. In the five years following British surrender, the independent states vied against each other for commercial advantage, debt relief, and land claims. Conflict was especially fierce between the rival settlers of Pennsylvania and Connecticut on lands in the west claimed simultaneously by both states.277 Both states sent partisan magistrates and troops into the region, and each faction claimed authority to remove claimants of the rival state.278 Magistrates occasionally ordered arrest without warrant, turned people out of their homes, and even ordered submission to the quartering of troops in homes.279 In 1784, a Pennsylvania grand jury indicted one such magistrate and forty others for abuse of their authority.280 Many agents had to be arrested before the troubles finally ended in 1788 ? the very moment when the Constitution was undergoing its ratification debates.281 These troubles, and not memories of life under the Crown, were fresh in the minds of the Framers who proposed and ratified the Bill of Rights.
The Third Amendment's proscription of soldiers quartered in private homes addressed a very real domestic concern about the abuse of state authority in 1791. This same fear of an omnipresent and all-controlling government is hardly unfounded in modern America. Indeed, the very evils the Framers sought to remedy with the entire Bill of Rights ? the lack of security from governmental growth, control and power ? have come back to haunt modem Americans like never before.282
THE RIGHT TO BE LEFT ALONE
The 'police state' known by modern Americans would be seen as quite tyrannical to the Framers who ratified the Constitution. If, as Justice Brandeis suggested, the right to be left alone is the most important underlying principle of the Constitution,283 the cop-driven model of criminal justice is anathemic to American constitutional principles. Today a vast and omnipotent army of insurgents patrols the American landscape in place of grand juries, private prosecutors, and the occasional constable. This immense soldiery is forever at the beck and call of whatever social forces rule the day, or even the afternoon.284
THE FOURTH AMENDMENT
Now to the Fourth Amendment. The Amendment reads: "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."285 This protection was clearly regarded as one of the more important provisions of the Bill of Rights during debates in and out of Congress prior to ratification.286 To this day, the Amendment is probably the most cited constitutional provision in challenges to police action.
The cold, hard reality, however, is that the interest protected by the amendment ? security from certain types of searches and seizures ? has been drastically scaled back since 1791. In saying this, I am mindful that there are those among the highest echelons of the bench and academy who claim that current Fourth Amendment law is more protective than the Framers intended.287 Indeed, there are those claiming the mantles of textualism and originalism who would decrease Fourth Amendment rights even further.288 The ever-influential Akhil Amar, for example, has argued that the Fourth Amendment's text does not really require warrants but merely lays out the evidentiary foundation required to obtain warrants.289 Amar joins other "originalist" scholars who emphasize that the only requirement of the Fourth Amendment's first clause ("The right of the people to be secure in their persons, papers, and effects from unreasonable searches and seizures shall not be violated") is that all searches and seizures be "reasonable."290 The warrant requirement pronounced in many Supreme Court opinions, according to Amar, places an unnecessary burden upon law enforcement and should be abandoned for a rule Amar considers more workable ? namely civil damages for unreasonable searches after the fact as determined by juries.
This type of "originalism" has appealed to more than one U.S. Supreme Court justice,291 at least one state high court,292 and various legal commentators.293 Indeed, it has brought a perceivable shift to the Supreme Court's Fourth Amendment jurisprudence.294 Even the U.S. Justice Department has adopted this argument as its own in briefs filed in the U.S. Supreme Court arguing for elimination of the warrant requirement.295
The problem with this line of interpretation is that it does not square with the original view of the Framers. Even the most cursory examination of history reveals that law enforcers of the Founding Era, whether private persons, sheriffs or constables, were obligated to procure warrants in many circumstances that modern courts do not require warrants.296 The general rule that warrants were required for all searches and seizures except those involving circumstances of the utmost urgency seems so well settled at the time of ratification that it is difficult to imagine a scholar arguing otherwise.297 But Professor Amar does. "Supporters of the warrant requirement," the professor writes, "have yet to find any cases" enunciating the warrant requirement before the Civil War.298
Perhaps Amar has overlooked the 1814 case of Grumon v. Raymond, in which the Connecticut Supreme Court held both a constable, who executed an improper search warrant, and a justice of the peace who issued the warrant, civilly liable for trespass.299 The court in Grumon clearly stated that the invalidity of the search warrant left the search's legality "on no better ground than it would be if [the search had been pursuant to] no process."300 Or maybe Amar is unfamiliar with the 1807 case of Stoyel v. Lawrence, holding a sheriff liable for executing a civil arrest warrant after the warrant's due date and declaring that the warrant "gave the officer no authority whatever, and, consequently, formed no defence";301 or the 1763 Massachusetts case of Rex v. Gay, acquitting an arrestee for assaulting and beating a sheriff who arrested him pursuant to a facially invalid warrant;302 or Batchelder v. Whitcher, holding an officer liable for ordering the seizure of hay by an unsealed warrant in 1838;303 or Conner v. Commonwealth, in which the Pennsylvania Supreme Court concluded in 1810 that if the requirement of warrants based on probable cause could be waived merely to allow constables to more easily arrest criminals, "the constitution is a dead letter."304
Even the cases Amar cites for the proposition that search warrants were not required under antebellum Fourth Amendment jurisprudence do not squarely support such a proposition.305 Most of them merely repeat the "warrant requirement" of the common law and find that their given facts fit within a common law exception.306 Similarly, the cases Amar cites that interpret various Fourth-Amendment equivalents of state constitutions by no means indicate that Founding-era law enforcers could freely search and seize without warrant wherever it was "reasonable" to do so. 307
WARRANTS A FLOOR, NOT A CEILING
Under Founding-era common law, warrants were often considered as much a constitutional floor as a ceiling. Warrants did provide a defense for constables in most trespass suits, but were not good enough to immunize officials from liability for some unreasonable searches or seizures.308 The most often-cited English case known to the Framers who drafted the Fourth Amendment involved English constabulary who had acted pursuant to a search warrant but were nonetheless found civilly liable for stiff (punitive, actually) damages.309
For more than 150 years, it was considered per se unconstitutional for law enforcers to search and seize certain categories of objects, such as personal diaries or private papers, even with perfectly valid warrants.310 Additionally, Fourth Amendment jurisprudence prohibited the government from seizing as evidence any personal property which was not directly involved in crime, even with a valid warrant.311 The rationale for this "mere evidence" rule was that the interests of property owners were superior to those of the state and could not be overridden by mere indirect evidentiary justifications.312 This rule, like many other obstacles to police search and seizure power, was discarded in the second half of the twentieth century by a Supreme Court much less respectful of property rights than its predecessors.313
PRIVATE PERSONS AND THE FOURTH AMENDMENT
Under the Founders' Model, a private person like Josiah Butler, who lost twenty pounds of good pork under suspicious circumstances in 1787, could approach a justice of the peace and obtain a warrant to search the property of the suspected thief for the lost meat.314 Private individuals applied for many or most of the warrants in the Founders' era and even conducted many of the arrests.315 Ev
