A Brief History of American Law Enforcement, Part II

In Part I of this two-part series, I introduce an article by legal scholar Roger Roots in which he makes the case that modern-day law enforcement is on shaky legal grounds. I summarize his monograph from a historical perspective. Part I covered two of Roots' points: the role of the citizen in early law enforcement, and how laws were in forced at the time of the Founders. In this second installment, I discuss how modern police have a lower standard of accountability than would citizens in the same role, modern policing has resulted in less freedom, not more, and how modern police are analogous to the bane of the Founders: a standing army.

A Lower Standard of Accountability, More Abuse
Another point that Roots makes is the superiority of the citizen-based law enforcement model in the area of accountability. As seen above, a citizen remains liable for false allegations, trespassing, and other torts when he violates the rights of others; this vulnerability acts as a natural restraint on the action of a citizen. No such restraint exists for police and other agents of the modern criminal justice system (e.g. district attorneys and judges who grant search warrants based upon flimsy evidence); in fact, the opposite is true...that accountability for police is the exception rather than the rule, and favoritism toward police over ordinary citizens is a commonly accepted practice. Imagine if you would a world where

law enforcers were liable for false imprisonment, even where they acted with court permission, if procedures were improper. A deputy was liable for damages to an arrestee whom he arrested outside his jurisdiction. Sheriffs were even liable if their deputies executed civil process in a rude and insolent manner. When executing writs, sheriffs were liable for any unnecessary violence against innocent third persons who obstructed them. Sheriffs and justices who executed arrests pursuant to invalid warrants were considered trespassers (as were any judges who granted invalid warrants). Any person was justified in resisting, or even battering, such officers. Justices of the peace could be held liable for ordering imprisonment without taking proper steps. Nor did state authority provide the umbrella of indemnification that now protects public officers. Sheriffs of the nineteenth century often sought protection from liability by obtaining bonds from private sureties. Their bonds were used to satisfy civil judgments against them while in office. If the amount of their bonds was insufficient to satisfy judgments, sheriffs were liable personally. It was not uncommon for a sheriff to find himself in jail as a debtor for failing to satisfy judgments against him. Even punitive damages against officers - long disfavored by modern courts with regard to municipal liability - were deemed proper and normal under the law of the Framers

Such was the world of law enforcement in the days of the Founders. By contrast, very little personal accountability exists for misconduct on the part of law enforcement officers. Theoretically, the State is held accountable for cases of misconduct and violations of rights; in practice, as illustrated by the mere 27 cases of Federal prosecution of police for criminal infractions, rarely are law enforcers held accountable for misconduct. Some of this is due to a shift in jurisprudence...a key legal concept that was introduced into American law in the last 150 years is the "good faith" defense for LEOs in the execution of their duties, which becomes a virtual "get away with what I want to" get-out-of-jail-free-card for all but the most egregious violators. Thus the very evil that the Founding Fathers sought to dispatch at the end of the 18th century, swarms of unaccountable government agents violating the natural rights of citizens, quickly returned with the defense that an officer can rely on a "probably cause" defense in making an arrest, conducting a search, or detaining a citizen. That police abuse this probable cause defense to the detriment of the rights of citizens to be secure from unreasonable search and seizure and detainment is tautological in the days of "testilying" on search warrant applications.

Less Rights, More Power to the State
In addition to law enforcement officer's de facto immunity from being held accountable, the rights of citizens have also dwindled. No longer may citizens resist warrantless arrest; it is now a crime to resist an arrest by a law enforcer if the officer has probable cause"--which is little more than one man's opinion--that you committed a crime at some point in time in the past. In a further granting of power to the State and its agents, the officer doesn't even have to witness the crime...the word of a "confidential informant"--which may be a figment of the officer's imagination--is sufficient. In a world where freedom to move about at one's will, where freedom from government, not just freedom of government, was once enshrined by Justice Brandeis dictum that the right to be left alone is the most important right undergirding the Constitution, the now archaic requirement that the State have a properly formed warrant for a citizen's arrest for all but the most felonious and time-critical of crimes is a huge loss for the liberty of citizens everywhere. And while early jurisprudence permitted warrantless arrest in some cases seen as inherently prejudicial to public order and safety, at the time of the Founders, only seven crimes qualified for warrantless arrest. Furthermore, the right to self-defense has significantly eroded. Whereas the Second Amendment was conceived as a check on the power of the government--by arming the citizenry to resist the oppression of the State--today it is a crime to resist the State's near-monopoly on firepower, to fight back, even when the police barge into your house in the middle of the night by mistake. It is illegal for a man to defend his home, his castle, with deadly force, even if it is difficult to distinguish the dynamically entering masked law enforcers both in appearance and deed from common criminals. In addition, one's persons and vehicles are no longer secure from warrantless search and seizure as they were at the time of the Founding, "stop and frisk" is the rule of the day, based on the whim of a government agent. One's property rights have drastically dwindled, as personal property is now able to be seized if it were deemed "evidence", and personal papers and diaries, once exempt from search and seizure by law enforcement, is now fair game.

Police as a Standing Army, Contra the Intent of the Framers
Speaking of masked gunmen indistinguishable from gang-bangers, Roots contends that a paid professional police force is nothing more than the incarnation of the standing army that the Founders hated so much:

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. Professional soldiers used in the same ways as modern police were among the primary grievances enunciated by Jefferson in the Declaration of Independence. The duties of such troops were in no way military but involved the keeping of order and the suppression of crime. 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"..."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." 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, it is difficult to distinguish between modern police and the modern infantry soldier, and what small difference that does exist is one of degree, not kind. Both wear uniforms, with insignia that demarcates what "unit" they belong to. Both wear their arms on the outside. Both are accountable to a politically distant public official and are thus insulated from accountability to the public for their actions, follow a chain of command, have an insular, authoritarian subculture and consider themselves different and separate (and sometimes better) from the People they serve, referring to non-police or non-military citizens as "civilians". And increasingly, police employ military tactics, are often themselves trained by military units, and recruit many former military members as police officers. I do not think it much of a stretch to state that mindsets of the the soldier and the police officer are nearly identical. The Founders would probably look at our toleration of armed, uniformed, largely unaccountable troops in our midst with shock and horror.

In closing, Roots in this excellent monograph asks the question "are cops constitutional?". Whether they are or not is a question I didn't bother to address. But I did find it illuminating to consider the differences between the intents of the Founders for how we Americans were to enforce our laws, and the practices of the Leviathan that we have delegated our collective powers of law enforcement to. Although I will say that the reversion toward centralized State power, from the brief 150-year period where personal liberty was the concern of every (English) man, toward a more powerful State is consistent with political trends in the West since the mid- to late 1800s. It is this gradual return of power from the individual to the State that has permitted a return of the horrors that an unchecked government may inflict upon its people, one that should make each of us concerned about the long-term viability of the Great American Experiment.