“Are cops constitutional?”
This is the question Radley Balko poses to start his book, Rise of the Warrior Cop; the militarization of America’s police forces. Beginning with Ancient Rome and quickly moving forward through the American Revolution and 19th century, Balko provides an historical and philosophical foundation for a detailed discussion of American police since 1960. From the perspective of civil liberties Balko traces the birth of SWAT teams, increased sale of military hardware to police forces, the War on Drugs, and other events and trends that have militarized US police forces. Full of important facts, stories, and trends, I highly recommend this book to anyone interested in criminal justice, their rights, or democracy; even if he doesn’t really talk about the constitutionality of the police.
There are several threads to follow throughout the book, all of which deserve their own discussion. Here, I will focus on a single sentence that is central to much of the book and many of Balko’s arguments:
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.
That is the third amendment to the Constitution of the United States of America. Engblom v. Carey is the only major federal court case that has relied upon this amendment, and not a single Supreme Court Case has used it as their primary rationale for a ruling. Yet Balko argues that what he calls the Symbolic Third Amendment, more or less the Castle Doctrine, is both the goal of the amendment and one of the central civil liberties citizens in the US don’t know they’ve lost.
The Castle Doctrine functionally states that a citizen’s home should be a place of sanctuary and privacy; unwanted state intrusions to the home should happen only in extreme situations and with stringent restraints. One of those restraints, encoded in Common Law before the colonization of the Americas, is that agents of the state (police) must knock and announce their presence before entering a home. They are allowed to use force to gain entrance only in extreme, likely life or death, situations and even then they must make their identity clear. This knock-and-announce rule exists not only to preserve the sanctity of the home for the owner, but also to protect the police themselves. It exists so that citizens know that any violence that ensues is being carried out by representatives of the sole legitimate user of violence in the area, i.e. the state. This reduces the probability and frequency of police or citizen violence, and increases citizen cooperation.
Balko makes a compelling argument that various violations of the Castle Doctrine were central to inspiring the American Revolution, and these violations led to the addition of the third amendment of the US Constitution. If Balko’s Symbolic Third Amendment analysis is correct, then the fourth amendment (search and seizure) may not even need to be the primary constitutional response to law enforcement abuses—especially when it comes to the home.
Unfortunately, in the 1960s tough on crime political currents, epitomized by Richard Nixon’s continual law and order campaign and War on Drugs, began eroding the Symbolic Third Amendment. Though there were initial ebbs and flows, those political currents continue to today and have destroyed many civil liberties. In particular, there has been a movement from knock and announce raids to no-knock raids in which police simply kick in the door, without necessarily identifying themselves. These no-knock raids, once illegal, were first pushed by Richard Nixon and though they have faced pushback in Congress (chiefly by Senator Ervin, D-NC) and the Courts, today no-knock raids are commonplace, with over 20,000 a year (context: if that all happened in Wyoming then almost ten percent of WY households would receive a no-knock raid, a year). Balko provides numerous stories and statistics to illustrate the traumatizing, and sometimes deadly, consequences of these raids, as well as the frequency at which they fail in some fashion or another.
No-knock raids are not the only fashion in which the Symbolic Third Amendment has been undermined. Even knock-and-announce raids are often different in name only. Courts have upheld fifteen seconds as a reasonable amount of time for police to wait between announcing their arrival and engaging in a “dynamic entry” (often breaking down a door or through a window). Even without a warrant, police can easily force entry to citizens’ homes (without even using qualified immunity). This trend culminated in Kentucky v. King, a 2011 Supreme Court decision in which the majority found that warrantless searches due to pressing (exigent) circumstances do not violate the fourth amendment unless the police violated the fourth amendment in creating said circumstances—Ruth Bader Ginsburg was the sole dissenter. If the police knock on a door and identify themselves and they hear movement, and they believe that this movement is to destroy evidence, they can immediately kick the door down. With or without a warrant, any evidence they turn up is acceptable in court. For the record, that was literally what the police did in Kentucky v. King, and the Court ruled 8-1 for the State.
The story of the (death of the) Symbolic Third is central to the book, and a parable to a variety of other stories Balko tells. Rights have been expanded in recent history—for example the Miranda Warning which requires police to inform suspects they have a right to remain silent turned 52 this year, making it a decade younger than the average sitting US Senator. But our rights have also been under siege by judges appointed by liberals and conservatives alike. For the most part this is not a malicious program, and it certainly isn’t a conspiracy to turn the US into a police state, but we are disturbingly far along that path. I agree with Balko that becoming aware of the rights we have, and no have lost, as citizens is a vital first step to ending this systemic attack on our rights, and the foundations of democracy.