The end of law: peace, order and the common good

1. Jay in Federalist No. 2

Nothing is more certain than the indispensable necessity of government… the people must cede to it some of their natural rights, in order to vest it with requisite powers.

2. “Law is said to bind those subject to it, and whoever is bound find his freedom curtailed to some extent.”

3. “The purpose of law [is]… to protect and promote true liberty. Law tends to make men good, directing them to their last end pointing out to them the means necessary to this end.”

4. Plato.

Mankind must have laws, and conform to them, or their life would be as bad as that of the most savage beast. Plato, Laws IX, p. 754 The reason for this “No man’s nature is best for human society; or knowing, always able and willing to do what is best.”

5. “True are or politics is concerned, not with private but with public good (for public good binds together states, but private only distracts them); and that both the public and private good as well as of states is greater when the state and not the individual is first considered.”

6. Although a person knows in the abstract that this is true yet if he be possessed of absolute and irresponsible power, he will never remain firm in his principles or persist in regarding the public good as primary in the state, and the private good as secondary. Human nature will always be drawing him into avarice and selfishness, avoiding pain and pursuing pleasure without any reason, and will bring these to the front, obscuring the juster and better… For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no needs of laws to rule over him ; for there is no law or order which is above knowledge, nor can mind without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best.

7. Aristotle

“Now if arguments were in themselves enough to make men good, they would justly… have won very great rewards… [but] they are not able to encourage the many to nobility and goodness. For these do not by nature obey the sense of shame, but only fear, and do not abstain from bad acts because of their baseness but through fear of punishment; living by passion they pursue their own pleasures and the means to them, and avoid the opposite pains, and have not even a conception of what is noble and truly pleasant since they have never tasted it.”

8. For he who lives as passion directs will not hear arguments that dissuades him, nor understand it if he does; and how can we persuade one in such a state to change his ways? And in genera passion seems to yield not to argument but to force. The character, then, must somehow already be there already with a kinship to virtue, loving what is noble and hating what is base.

But it is difficult to get from youth up a right training for virtue if one has not been brought up under right laws; for to live temperately and hardily is not pleasant for most people, especially when they are young. For this reason their nurture and occupations should be fixed by law; for they will not be painful when they have become customary.

9. [E]ven when they are grown up, practice and be habituated to them, we shall need laws for this as well, and generally speaking to cover the whole of life; for most people obey necessity rather than argument, and punishments rather than the sense of what is noble.

10. [I]f…the man who is to be good must be well trained and habituated, and go on to spend his time in worthy occupations and neither willingly nor unwillingly do bad actions, and if this can be brought about if men live in accordance with a sort of reason and right order, provided this has force—if this be so, the paternal command indeed has not the required force or compulsive power (nor in general has the command of one man, unless he be a king or something similar); but the law has compulsive power, while it is at the same time a rule proceeding from a sort of practical wisdom and reason. And while people hate men who oppose their impulses, even if they oppose them rightly, the law in its ordaining of what is good is not burdensome.

11. [W]hat should be the conditions of the ideal or perfect state; for the perfect state cannot exist without a due supply of the means of life… There will always be a certain number of citizens, a country in which to place them, and the like.

12. [A state even if great by numbers] [W]e ought not to include everybody, for there must always be in cities a multitude of slaves and sojourners and foreigners; but we should include those only who are members of the state, and who form and essential part of it.

13. [Aristotle then argues that size makes a country more difficult to govern as laws cannot be efficiently and effectively implemented even-handedly.] Moreover, experience shows that a very populous country can rarely, if ever, be well governed; since all cities which have a reputation for good government have a limit of population… For law is order, and good law is good order; but a very great multitude cannot be orderly: to introduce order into the unlimited is the work of a divine power—of such power as holds together the universe. Beauty is realized in number and magnitude, and the state which combines magnitude with good ordr must necessarily be the most beautiful.

14. Aquinas

Article I. Whether law is something pertaining to reason? Law is a rule and measure of acts, by which man in induced to act or is restrained from acting [law is derived from ligare (to bind), because it obliges one to act.]

15. Article 2. Whether the law is always directed to the common good? It would seem that the law is not always directed to the common good as to its end.

a. Objection 1. For it belongs to law to command and forbid.

b. Aquinas Answers: Now the first principle in practical matters, which are the object of practical reason, is the last end; and the last end of human life is happiness of beatitude… Consequently, the law must regard principally the relationship to happiness.

The Militarization of Police Forces as Violative of the Third Amendment, Part IV: Badges and Incidents Military Occupation

C.            The Third Amendment Protects Us from the Incidents and Badges of Military Occupation

             With respect to race, in enacting the October 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Congress made the following finding:

Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude. (National Defense Authorization Act for Fiscal Year 2010, PL 111-84, October 28, 2009, 123 Stat 2190; See also Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY.  Journal of Constitutional Law, Vol. 14:3 (February 2012) at 563; at https://www.law.upenn.edu/journals/conlaw/articles/volume14/issue3/McAward14U.Pa.J.Const.L.561%282012%29.pdf; accessed on January 28, 2015 at 9:29 p. m. P. S. T.)

What, however, qualifies as a badge or incident of slavery? Does this concept refer only to a public law that discriminates against African Americans or, more generally, on the basis of race? Alternatively, does it encompass any public or private practice that “perpetuates [racial] inferiority?” Or is its scope even broader, extending to “any act motivated by arbitrary class prejudice?” (Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY, supra, at 564).

The Thirteenth Amendment promised the freed slaves “universal civil and political freedom.” The concept of the “badges and incidents of slavery” is meant to assist Congress in identifying ways in which it can fulfill that promise and, at the same time, to mark the outer boundaries of the Section 2 power. Indeed, the terms “badge” and “incident” are terms of art that refer to specific aspects of the slave system and its legacy. (Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY, supra, at 566).

With respect to the Third Amendment, to analogize the goals of Professor McAward’s article by paraphrase, we must develop and provide a conceptual framework for interpreting and identifying the badges and incidents of the “quartering” of para-military police forces within a modern context. Such a framework not only will assist Congress in crafting Third Amendment legislation and the federal courts in policing the outer boundaries of our fundamental rights under the Third Amendment to be free from military occupation by heavily armed para-military police forces. (Jennifer Mason McAward, DEFINING THE BADGES AND INCIDENTS OF SLAVERY, supra, at 566).

        The examples provided earlier in the discussion are indicative of police conduct and practices that can be considered badges and incidents of a military occupying force rather than police forces. 

         To be continued...

The Militarization of Police Forces as Violative of the Third Amendment, Part III

Third Amendment Protection of our Fundamental Liberty Interests against Military ‘Occupation’ by Para-Military Police Forces 

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. (U.S. Const. amend. III)

In his outstanding treatise on the Bill of Rights, Akhil Reed Amar observes that “[The] Third Amendment focuses on structural issue of protecting civilian values against threat of an overbearing military.  No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle insinuation.  (Akhil Reed Amar, at 59)  He then suggests, the term ‘occupation’ is not limited merely to physical space. “What about more insidious forms of military occupation, featuring federal soldiers cowing civilians by psychological guerrilla warfare, day by day and house by house?”  (Id.)

A.  Third Amendment Penumbral Rights

Professor Amar observes that the United States Supreme Court has reconstructed the Third Amendment [incorporating it and making it applicable to the States through the 14^th Amendment] “in an unreflective but highly plausible way.  In landmark cases like Griswold v. Connecticut [italics in original], the Court has viewed the Third Amendment as an embodiment of a right of “privacy” in the home.” (Akhil Reed Amar, supra, at 267).

In Griswold v. Connecticut, the defendants were convicted of violating the Connecticut birth control law. The Circuit Court in the Sixth Circuit, Connecticut, rendered judgments, and the defendants appealed. The Appellate Division of the Circuit Court affirmed, and defendants appealed. The Connecticut Supreme Court of Errors, 151 Conn. 544, 200 A.2d 479, affirmed, and the defendants appealed. The Supreme Court, Mr. Justice Douglas, reversed the state courts,  holding that the Connecticut law forbidding use of contraceptives unconstitutionally intrudes upon the right of marital privacy. (Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)).

Most importantly, Griswold “protected basic constitutional rights and applied them against the states in conventional fashion under the Fourteenth Amendment, and it mandated a stricter scrutiny for laws that interfere with “fundamental personal rights” than those that regulate economic relations.” (Griswold v. Connecticut inThe Oxford Companion to the Supreme Court of the United States, Kermit L. Hall, ed., 2d. Ed. (Oxford University Press, 2005) at 408).  

 [S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. [internal citations omitted]. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy.  (Griswold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 (1965)).

Thus the “philosophy of the amendment” according to the opinion in Griswold is “that a constitutional right of privacy could be constructed from the commitment to personal autonomy found in the penumbras of the Bill of Rights.”  (Third Amendment, in The Oxford Companion to the Supreme Court of the United States, supra, at 1015).

This philosophy of penumbral rights was reaffirmed as the Supreme Court impliedly held, e.g., that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion.” (Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 510, 19 L. Ed. 2d 576 (1967). The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. (Id., 389 U.S. at 351 fn. 5, 88 S. Ct. at 511).

Since Griswold, these penumbral rights to privacy have been examined whether they apply to sale of contraceptives to unmarried individuals (Carey v. Population Services International, 431 U.S. 678 (1977); relations among homosexuals (Bowers v. Hardwick, 478 U.S. 186 (1986); and women’s choices regarding abortion. (Roe v. Wade, 410 U.S. 113 (1973).

While the Supreme Court has never decided a case dealing direction with the quartering of troops, the Court of Appeals for the Second Circuit held in Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states, the Third Amendment was designed to assure a fundamental right to privacy (Id.,  677 F.2d at 962), and that Third Amendment applied to the National Guard while on State Duty.  (Third Amendment, in The Oxford Companion to the Supreme Court of the United States, supra, at 1015).

Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) involved an action brought in the Southern District of New York under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343(3) & (4) by two correction officers at the Mid-Orange Correctional Facility (“Mid-Orange”) in Warwick, New York, against the Governor and various officials of the State of New York, plaintiffs-appellants contend that their due process and Third Amendment rights were violated during a statewide strike of correction officers in April and May of 1979 when they were evicted from their facility-residences without notice or hearing and their residences were used to house members of the National Guard without their consent. As the Engblom Court observed: “For the first time a federal court is asked to invalidate as violative of the Third Amendment the peacetime quartering of troops “in any house, without the consent of the Owner.” (Engblom v. Carey, 677 F.2d at 959).

The facts of the case were as follows:

At the time of the strike appellants had worked at Mid-Orange for nearly two years and were residing in housing located on the grounds of the facility. Of the total staff of some 210, approximately 36-45 officers resided in the “Upper and Lower Staff Buildings” located at Mid-Orange. Although only employees were eligible to live there, such residence was optional on the employee's part and not a condition of employment. (Engblom v. Carey, 677 F.2d at 959).

^…

On April 18, 1979, a statewide strike was called by the Security and Law Enforcement Employees Council 82, AFL-CIO. On that day Governor Hugh L. Carey issued a Proclamation and Executive Order activating the National Guard. On April 19 most of the officers at Mid-Orange joined the strike. Either on that day or the following day Superintendent Snow because of the strike issued an order barring striking employees from the facility grounds unless they obtained his permission. At 12:10 A.M. on April 21 Snow finally declared an emergency at Mid-Orange. Beginning around April 19, National Guardsmen had begun arriving at Mid-Orange, eventually reaching a maximum force of 260.

As a result of these developments, from April 19 to April 25 appellants and other employees believed to be on strike were repeatedly denied access to the administration building. Striking officers who lived in staff housing were thus also denied access to their apartments, with one exception on April 20 when appellant Engblom was permitted to retrieve some personal items. The payroll rental deductions were cancelled effective April 19, 1979. Some time before April 25 a decision was made by Mid-Orange to clear the rooms that had been leased to the striking officers so that the rooms could be used to house National Guardsmen, who until then had been housed in the school and administration buildings. On April 25 officer-tenants were permitted to enter and remove and store their belongings in a locked storage area in the building, and appellants did so. Their rooms had been ransacked and personal property was found to be missing or destroyed. Beginning at the same time Guardsmen were housed in these rooms and remained until the end of the strike on May 5…

Participation in the strike was the sole reason for evicting resident staff-tenants and using their rooms to house the Guard. However, at no time prior to the evictions did Mid-Orange provide notice or undertake investigations in accordance with its own regulations…

When the strike was over on May 5, appellants were made an offer to resume residence in their staff housing, which they declined. Neither was terminated and both continue to work as correction officers at Mid-Orange.  (Engblom v. Carey, 677 F.2d at 960-61).

The Court’s reasoning and holding:

The crux of appellants' Third Amendment claim depends on whether the nature of their property interest in their residences is sufficient to bring it within the ambit of the Third Amendment's proscription against quartering troops “in any house, without the consent of the Owner.” The absence of any case law directly construing this provision presents a serious interpretive problem, and little illumination can be gleaned from the debates of the Constitutional Convention. We are thus left with the language of the Third Amendment and analogies to other areas of law. Under a technical and literal reading of the language, the Third Amendment would only protect fee simple owners of houses. We reject such a formalistic construction for the same reasons that it has been rejected in analogous contexts.  (Engblom v. Carey, 677 F.2d at 961-62).

The Third Amendment was designed to assure a fundamental right to privacy. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965)... Since the privacy interest arises out of the use and enjoyment of property, compare Griswold, supra (privacy in marital relationship), an inquiry into the nature of the property-based privacy interest seeking protection becomes necessary. In closely analogous contexts rigid notions of ownership are not prerequisites to constitutional protections. When determining whether a legitimate expectation of privacy exists for the purposes of the Fourth Amendment, for instance, the Supreme Court has rejected the notion that a protected privacy interest in a place must be “based on a common-law interest in real or personal property.” [internal citations omitted] Rather, the Court stated that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy.” Id. (emphasis added). Similarly, in applying the due process clause, the Court has extended its procedural protection “well beyond actual ownership of real estate, chattels, or money,” …, and has interpreted “property” as “not limited (to) a few rigid, technical forms,” but as “denot(ing) a broad range of interests that are secured by ‘existing rules or understandings.’ ”... A rigid reading of the word “Owner” in the Third Amendment would be wholly anomalous when viewed, for example, alongside established Fourth Amendment doctrine, since it would lead to an apartment tenant's being denied a privacy right against the forced quartering of troops, while that same tenant, or his guest, or even a hotel visitor, would have a legitimate privacy interest protected against unreasonable searches and seizures. [citations omitted].

Accordingly we hold that property-based privacy interests protected by the Third Amendment are not limited solely to those arising out of fee simple ownership but extend to those recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others…

Applying these principles, as a matter of state law appellants throughout the strike had a lawful interest in their living quarters sufficient to entitle them to exclude others… Thus, even if pre-deprivation due process procedures were not available to them, they retained a protectible interest in their quarters until they were lawfully deprived of it.

Appellants' interest, moreover, reasonably entitled them to a legitimate expectation of privacy protected by the Third Amendment. Appellants' rooms, which they furnished and for which they were charged a monthly rent, were their homes. They did not maintain separate residences or have alternative housing available in the event of an emergency. During the entire two-year period preceding the strike, appellants did not reside in any other dwelling…

Finally appellants' jobs were not conditioned on their living in staff housing; nor was staff housing provided as a form of remuneration for their employment. It was only after appellants had been on their jobs as correction officers that they became eligible to apply for staff housing. Thus New York decisions relied upon by the district court are not on point, since they all involve apartment superintendents whose jobs required occupancy on the premises.

We conclude, therefore, that in the context of a motion for summary judgment the record, viewed most favorably to appellants, does not preclude a finding that they had a substantial tenancy interest in their staff housing, and that they enjoyed significant privacy due to their right to exclude others from what were functionally their homes… Accordingly, since we cannot say that as a matter of law appellants were not entitled to the protection of the Third Amendment, we reverse the summary dismissal of their Third Amendment claim.  (Engblom v. Carey, 677 F.2d at 962-64).

B.   Our Penumbral Rights under the Third Amendment Provide Us with Fundamental Liberty Interests against the Occupation, Intimidation, Domination by Military Forces

        Under the reasoning of Engblom, the crux of a Third Amendment claim depends on whether the  nature of their property or privacy interest in their neighborhoods and residences is sufficient to bring it within the ambit of the Third Amendment's proscription against quartering troops “in any house, without the consent of the Owner.”  The issue is whether a policeman in military gear a soldier for purposes of the Third Amendment?; and, if so, then is his or her presence in our neighborhoods and homes a violation of our fundamental liberty interests.

        Pursuant to the authorities cited and for the reasons stated above, our penumbral rights under the Third Amendment provide us with fundamental liberty interests against other forms of governmental invasion.  The occupation, intimidation, domination by ‘military’ forces of any kind to include more insidious forms of military occupation, featuring militarized and heavily-armed police forces cowing civilians by psychological guerrilla warfare, day by day and house by house and in the activities described in the reports of the ACLU, HRW, and other documentary sources constitute governmental invasion of those interests.

       Hamilton forcefully affirmed in Federalist No. 8 that the presence of a standing army / occupation can lead to overdependence and subjugation.  Once this happens, our civil society is lost because “it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.” 

     The object of the Third Amendment is the protection of civil society from an overbearing military. 

      The Supreme Court has strongly declared in Griswold and Katz, that the protection of civil society from an overbearing military is a fundamental liberty interest that falls within our penumbral rights under the U. S. Constitution.  Thus the government may not violate such liberty interest absent a compelling governmental interest and no other viable alternatives exist. 

As Senator Coburn noted an increasingly militarized police force is hardly distinguishable from a standing army.

         Moreover, the issue of consent.  The Third Amendment also guards against unfettered executive action at federal level and through the Fourteenth Amendment applies to the States.

        Another important facet of the Third Amendment is that “the amendment stands as an important reaffirmation of the separation of powers, and limited executive authority… which often goes unnoticed because of our modern-day fixation on individual rights.  To put the point a different way, the deep spirit of the Third Amendment cautions skepticism about unilateral executive assertions of military necessity.  (Akhil Reed Amar, The Bill of Rights, Yale University (1998), at 62).

        We must not continue the militarization of our police forces.  Our police forces are established to protect and serve, not to intimidate and oppress. 

The Militarization of Police Forces as Violative of the Third Amendment, Part II

Standing Armies?

        One of the earliest arguments in favor of the federal constitution was the necessity of unity among the states to preclude the necessity of a standing army which was seen as a threat to the liberty interests of all.

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. (Federalist Paper, No. 8, supra, at 67).

        In Federalist No. 8 Hamilton clearly demonstrates the “classic republican skepticism of peacetime armies” (Akhil Reed Amar, supra, at 267):

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. [emphasis added] The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. (Federalist Paper, No. 8, supra, at 69-70).

       This is the problem we now face.  "Tell me what the difference is between an increasingly militarized police force and a standing army,” Sen. Tom Coburn (R-Okla.) said during a hearing before the Senate Homeland Security and Governmental Affairs Committee, the first congressional hearing on the militarization of police.  (Senators blast DOD program that 'militarized police' By Tim Devaney, The Hill, 09/09/14 03:13 PM EDT  http://thehill.com/regulation/217136-senators-blast-dod-program-to-militarize-police; accessed on December 25, 2014 at 1428 hrs. P.S.T.).

"It's hard to see a difference between the militarized and increasingly federalized police force we see in towns across America today and the force that Madison had in mind when he said 'a standing military force with an overgrown executive will not long be a safe companion to liberty,' " said Sen. Tom Coburn (R., Okla.) on Tuesday, referring to one of the Founding Fathers.  (Grossman, Updated Sept. 9, 2014 7:38 p.m. ET; accessed on December 24, 2014, at 1509 hrs. P.S.T.).

       Senator Coburn’s concern was given particular effect on this Christmas in one specific but poignant example:

Manchester [CT] Police are on a mission this Christmas Day--delivering toys to needy children.
Police cruised through town this morning in an armored vehicle, decked out in lights and tinsel, to hand out toys to needy children.
…
The officers' sleigh is the department's armored Bearcat, a $250,000 vehicle that is designed for tactical emergency response. (Manchester Police Help Santa on Christmas Day By Stephanie O'Connell, NBC Connecticut, Thursday, Dec 25, 2014 • Updated at 7:02 PM EST; in http://www.nbcconnecticut.com/news/local/Manchester-286828801.html; accessed on December 26, 2014, at 2025 hrs P.S.T.).  

Insidious Military Occupation and Domination of Society?

A peacetime ‘army’ of para-military police forces can lead to what Hamilton and the founding fathers feared most:

The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. (Federalist Paper, No. 8, supra, at 69-70).

       Or as Patrick Henry put it:  “Here we may have troops in times of peace.  They may be billeted in any manner [emphasis added]—to tyrannize, oppress, and crush us.”  (Quoted in Akhil Reed Amar, supra, at 61).

       Police Special Weapons and Tactics (SWAT) teams are the ‘poster images’ of actions to ‘tyrannize, oppress, and crush us’ by police paramilitary operations gone awry:

SPECIAL WEAPONS AND TACTICS TEAMS were created in the late 1960s for extreme scenarios like saving hostages and taking down active shooters. But police departments soon began deploying them in more mundane situations. In 1984, just 40 percent of SWAT teams were serving warrants. By 2012, the number was 79 percent. In all, the number of SWAT raids across the country has increased 20-fold since the 1980s, going from 3,000 per year to at least 60,000. And SWAT teams are no longer limited to large cities: In the mid-1980s, only 20 percent of towns with populations between 25,000 and 50,000 had such teams. By 2007, 80 percent did.

Much of the increase has been driven by the drug war, says David Klinger, a former Los Angeles cop and a professor of criminal justice at the University of Missouri-St. Louis. "If we didn't think that drugs were the most evilest thing in the history of God's green earth," he says, "and weren't running hither and yon trying to catch people with dope in their house, none of this would have happened."

Today, 85 percent of SWAT operations are for "choice-driven raids on people's private residences," Peter Kraska, an Eastern Kentucky University researcher who studies tactical policing, said in a recent Senate hearing. According to a study released by the American Civil Liberties Union earlier this year [referenced above], 62 percent of SWAT deployments were for drug raids. The study found that in these raids, drugs were found only half of the time. When weapons were "believed to be present," they were not found in half of the cases for which the outcome was known. (http://www.motherjones.com/politics/2014/10/swat-warrior-cops-police-militarization-urban-shield ; accessed on December 27, 2014 at 2330 hrs. P.S.T.). 
 

Presently, the problem was best summarized in a recent editorial in the Sacramento News and Review:

For too long, we’ve allowed ourselves to think that people who are killed or harmed by police must have done something wrong. But does anyone really think that mental illness, or shoplifting, or car theft, or outstanding warrants on burglaries, or—for crying out loud—selling loose cigarettes on the street demands an immediately executed death sentence?  (Editorial, Sacramento News and Review, December 25, 2014, http://www.newsreview.com/sacramento/shocking/content?oid=15834400; accessed December 26, 2014, 0107 hrs. P.S.T.)

                According to Human Rights Watch (“HRW”), a nonprofit, nongovernmental organization that supports human rights around the globe, in response to Ferguson protests:

Police have responded with threatening measures – such as pointing military assault rifles at peaceful protesters and deploying armored vehicles – that infringe on rights to peaceful assembly and expression. They have also used apparently unnecessary or excessive force – including firing teargas and rubber bullets into crowds, and arbitrarily detained journalists covering the events.
The police response to the protests has also raised concerns about the accountability of law enforcement, Human Rights Watch said. Some police officers were not wearing name tags or badges with visible numbers, witnesses said. Early in the police response, four law enforcement agencies were involved, with officials on the scene refusing to identify which agency was in charge. This made it difficult to determine whether each of the agencies had policies on the use of force and whether they were being followed.  (Human Rights Watch, US: Holder Should Press for Police Reform.  Ferguson Unrest Shows Need for Effective Oversight, Transparency, August 20, 2014; at http://www.hrw.org/news/2014/08/20/us-holder-should-press-police-reform; accessed on December 26, 2014, at 1908 hrs, P.S.T.).

        After direct observations in Ferguson by HRW personnel, in another news report, HRW commented:

Human Rights Watch spent several days in Ferguson, beginning on August 17, to investigate and report on the reasons behind the protests, as well as the police response. Law enforcement agencies in a number of instances used teargas, rubber bullets and other tactics in apparent violation of the right to peaceful assembly and freedom of expression, and engaged in possible excessive use of force.

In one episode, police pointed rifles at a local resident and her 15-year-old daughter who were peacefully protesting in a private parking lot even though they had permission from the owner. In another case, a group of peaceful marchers and a photojournalist were surrounded by armored police vehicles, backed into a driveway, and tear-gassed three seconds after being told to disperse.

The law enforcement response to the protests featured a lack of transparency and accountability, Human Rights Watch said. These problems may have been exacerbated by the large number of separate local, county, and state agencies involved and the lack of communication among them. Missouri state officials have provided inconsistent information regarding which agencies were involved and when. Public records requests Human Rights Watch submitted on August 28 have gone unanswered, beyond the three-day time period that Missouri public records laws mandate for a response. (Human Rights Watch, US: Missouri Should Review Ferguson Response. Law Enforcement Failures Show Need for Effective Oversight, Transparency, September 9, 2014; at http://www.hrw.org/news/2014/09/09/us-missouri-should-review-ferguson-response; accessed on December 26, 2014, at 1920 hrs, P.S.T.).

In a concluding news report on this issue, HRW determined that:

Human Rights Watch found serious problems in the police response to the protests. The problems included the intimidation of protesters that infringed upon their rights to assembly and freedom of expression, which are protected under both the US Constitution and international law. At times, the police used unnecessary and disproportionate force. The authorities also hindered media organizations from gathering news on the protests. (Human Rights Watch, US:  Respect Rights of Ferguson Protesters.  Past Abuses Highlight Need for Improved Police Response, November 19, 2014; at http://www.hrw.org/news/2014/11/19/us-respect-rights-ferguson-protesters; accessed on December 26, 2014, at 1914 hrs, P.S.T.).

The fact is that by coopting military practices, training and equipment, the federal government is now involved in our local police forces.  For example, what is a police officer going to use a grenade launcher for?

The use of tactics such as showing up at people’s homes and making arrests in the middle of the night were standard practices of the Soviet NKVD (People’s Commissariat of Internal Affairs) during the reign of Iosif Stalin.  Is this what we want for America in the 21^st century? 

The Militarization of Police Forces as Violative of the Third Amendment, Part I

The Third Amendment to the United States Constitution provides:

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. (U.S. Const. amend. III)

[The] Third Amendment focuses on structural issue of protecting civilian values against threat of an overbearing military.  No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle insinuation.  (Akhil Reed Amar, The Bill of Rights, Yale University (1998), at 59)

        Recent events in Ferguson, Missouri, New York City and other places have placed this issue squarely in the public eye, as heavily armed police forces are seen on national television as military occupation forces shooting and killing unarmed citizens instead of police officers protecting us. “The continual necessity for their services enhances the importance of the [para-military police forces], and proportionably degrades the condition of the citizen. The [police] state becomes elevated above the civil.” (Alexander Hamilton, The Federalist Papers, No. 8 (New York: Mentor Books, 1961), at 70).

I submit that the right of citizens to be free from any form of ‘military occupation’ either openly or by subtle insinuation, or by any form of peripherals thereof (such as a ‘police’ state) “is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights.” (Griswold v. Connecticut, 381 U.S. 479, 487, 85 S. Ct. 1678, 1683, 14 L. Ed. 2d 510 (1965).  If instead of police forces now we have military forces in our cities and neighborhoods, then this constitutes the ‘quartering of soldiers’ in our neighborhoods violating our penumbral privacy rights under the Third Amendment to secure our homes against ‘military occupation.’  

Militarization of Police Forces

The issue of police departments using military-style equipment was thrust into the spotlight in August, when media outlets began broadcasting footage of officers in Ferguson squaring off with protesters following the police shooting of an unarmed black man. Ferguson officers used armored tanks and machines guns in the response to demonstrations, which began after the death of 18-year-old Michael Brown, who was killed by a police officer in a street confrontation. (Senators blast DOD program that 'militarized police' By Tim Devaney, The Hill, 09/09/14 03:13 PM EDT http://thehill.com/regulation/217136-senators-blast-dod-program-to-militarize-police; accessed on December 25, 2014 at 1428 hrs. P.S.T.).

If you are wondering what the police was planning to do with those armored tanks and machine guns, you are not alone; and the answer cannot likely be an acceptable one.  However, the fact is that:

America has been quietly arming its police for battle since the early 1990s.

Faced with a bloated military and what it perceived as a worsening drug crisis, the 101st Congress in 1990 enacted the National Defense Authorization Act. Section 1208 of the NDAA allowed the Secretary of Defense to “transfer to Federal and State agencies personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is— (A) suitable for use by such agencies in counter-drug activities; and (B) excess to the needs of the Department of Defense.” It was called the 1208 Program. In 1996, Congress replaced Section 1208 with Section 1033.  The idea was that if the U.S. wanted its police to act like drug warriors, it should equip them like warriors, which it has—to the tune of around $4.3 billion in equipment, according to a report by the American Civil Liberties Union. The St. Louis County Police Department’s annual budget is around $160 million. By providing law enforcement agencies with surplus military equipment free of charge, the NDAA encourages police to employ military weapons and military tactics.  (How America’s Police Became an Army: The 1033 Program BY TAYLOR WOFFORD 8/13/14 AT 10:47 PM in Newsweek;  http://www.newsweek.com/how-americas-police-became-army-1033-program-264537, Accessed On December 24, 2014 at 14:15 hrs P.S.T.).

According to a study by the American Civil Liberties Union published last year [referenced in the above article]:

Across the country, heavily armed Special Weapons and Tactics (SWAT) teams are forcing their way into people’s homes in the middle of the night, often deploying explosive devices such as flashbang grenades to temporarily blind and deafen residents, simply to serve a search warrant on the suspicion that someone may be in possession of a small amount of drugs. Neighborhoods are not war zones, and our police officers should not be treating us like wartime enemies.  (ACLU, War Comes Home: The Excessive Militarization of American Policing (2014), at 2; in https://www.aclu.org/sites/default/files/assets/jus14-warcomeshome-report-web-rel1.pdf, accessed on December 24, 2014, at 1315 hrs. P.S.T.).

Militarization of policing encourages officers to adopt a “warrior” mentality and think of the people they are supposed to serve as enemies. (Id., at 3).

The ACLU study findings included the following:

1.            Policing—particularly through the use of paramilitary teams—in the United States today has become excessively militarized, mainly through federal programs that create incentives for state and local police to use unnecessarily aggressive weapons and tactics designed for the battlefield. For example, the ACLU documented a total of 15,054 items of battle uniforms or personal protective equipment received by 63 responding agencies during the relevant time period, and it is estimated that 500 law enforcement agencies have received Mine Resistant Ambush Protected (MRAP) vehicles built to withstand armorpiercing roadside bombs through the Department of Defense’s 1033 Program.2.            The militarization of policing in the United States has occurred with almost no public oversight.3.            SWAT teams were often deployed—unnecessarily and aggressively—to execute search warrants in low-level drug investigations; deployments for hostage or barricade scenarios occurred in only a small number of incidents. (Id., at 5).4.            The use of paramilitary weapons and tactics primarily impacted people of color; when paramilitary tactics were used in drug searches, the primary targets were people of color, whereas when paramilitary tactics were used in hostage or barricade scenarios, the primary targets were white. (Id., at 5).5.            SWAT deployments often and unnecessarily entailed the use of violent tactics and equipment, including armored personnel carriers; use of violent tactics and equipment was shown to increase the risk of bodily harm and property damage. (Id., at 6).

All that battle gear you saw in Ferguson was acquired not from the military, but from private companies like the ones touting their wares at Urban Shield.

This summer, images of armored vehicles and police pointing semi-automatic rifles at demonstrators in Ferguson, Missouri, set off a debate over what journalist Radley Balko has termed the "rise of the warrior cop." A National Public Radio analysis found that since 2006, the Pentagon has given local cops some $1.9 billion worth of equipment—including 600 mine-resistant, ambush-protected vehicles (MRAPs), 80,000 assault rifles, 200 grenade launchers, and 12,000 bayonets (yes, bayonets). But those totals pale in comparison to the amount of gear purchased from private companies. The Ferguson Police Department, for example, received some computers, utility trucks, and blankets from the military—but all that battle gear you saw on TV was bought from corporations like the ones pitching their wares at Urban Shield. Outfitting America's warrior cops, it turns out, is a major business, and one fueled in large part by the federal Department of Homeland Security. The Department of Defense has given $5.1 billion worth of equipment to state and local police departments since 1997, with even rural counties acquiring things like grenade launchers and armored personnel carriers. But Homeland Security has handed out grants worth eight times as much—$41 billion since 2002. The money is earmarked for counterterrorism, but DHS specifies that once acquired, the equipment can be used for any other law-enforcement purpose, from shutting down protests to serving warrants and executing home searches.  (The Making of the Warrior Cop: Inside the Billion-Dollar Industry that Turned Local Cops into SEAL Team Six.  Do police really need grenade launchers? By Shane Bauer, Mother Jones, October 2014; in http://www.motherjones.com/politics/2014/10/swat-warrior-cops-police-militarization-urban-shield ; accessed on December 27, 2014 at 2330 hrs. P.S.T.)

This industry of suppliers hosts its own conferences where its paddles its latest hardware to police from across the country and a host of other countries.

Organizers of the conference, known as Urban Shield, said it was the largest first-responder training in the world; now in its eighth year, it has drawn teams from places as far-flung as Singapore, South Korea, Israel, and Bahrain. Each group would go through 35 tactical scenarios over 48 hours, with no breaks except the occasional catnap. An airplane was lined up for busting a gun smuggler, and a cargo ship would be seized by a terrorist after a make-believe earthquake. A "militant atheist extremist group" would take hostages at a church.

The event was paid for mostly by the Department of Homeland Security, but more than 100 corporations threw in money too, up to $25,000 each. In many of the scenarios, teams would try out the latest equipment on offer from Urban Shield's corporate sponsors—Verizon, Motorola, SIG Sauer. Many were military supply companies—FirstSpear, for example, was founded by former soldiers to make body armor and bandoliers for "US and allied warfighters." Here, they sold their stuff to cops. Then there were "platinum sponsors" like Uber, which gave police discount black-car rides for the weekend.

Urban Shield was started in 2007 by an Alameda County assistant sheriff named James Baker. In 2011, he told me, Homeland Security asked him to bring the event to other parts of the country, so he started a company, the Cytel Group, that would put on Urban Shield in Boston, Austin, and Dallas. "Urban Shield is a program that gets everybody working together" to respond to crises, he said. Baker's firm has also received $500,000 in state funds to write guidelines for SWAT teams, on things like how much gear each team is required to have.  (http://www.motherjones.com/politics/2014/10/swat-warrior-cops-police-militarization-urban-shield ; accessed on December 27, 2014 at 2330 hrs. P.S.T.).

This concern is not just of liberals and civil libertarians but reflects deep concern among conservatives as well.  For example, 

“Senators took aim in particular at the Defense Department's provision of 617 mine-resistant, ambush-protected vehicles to small police departments. As the U.S. has drawn down forces in Iraq and Afghanistan, the hulking vehicles have been finding their way to smaller and smaller towns. Police departments generally don't receive training in how or when to use them.”  (Senators Criticize Growing Militarization of Local Police Departments:  Democrats, Republicans Question Federal Programs Giving Military-Style Gear to Local Law Enforcement, By Andrew Grossman, Wall Street Journal, Updated Sept. 9, 2014 7:38 p.m. ET; http://www.wsj.com/articles/senators-criticize-militarization-of-local-police-departments-1410287125;  accessed on December 24, 2014, at 1430 hrs. P.S.T.).

Sen. Claire McCaskill (D-Mo.), who called for [a] hearing, criticized Ferguson police for creating the appearance of a “war zone” and treating protesters like “enemy combatants” in the suburb of St. Louis.

McCaskill said the Pentagon’s 1033 program is “driving me crazy.”

McCaskill pointed out that in some places local police departments are more heavily armed than the National Guard. In Michigan, a police department with only one full-time officer was given 13 assault weapons, she said.

But what upsets her the most is that, rather than providing old, used weapons to police, more than one-third of the time the Pentagon is giving them new equipment for free. [emphasis added]

"What are we doing?” McCaskill asked. "Why are we buying these at the Department of Defense merely to turn around and give it away?"  (Senators blast DOD program that 'militarized police' By Tim Devaney, The Hill, 09/09/14 03:13 PM EDT  http://thehill.com/regulation/217136-senators-blast-dod-program-to-militarize-police; accessed on December 25, 2014 at 1428 hrs. P.S.T.; Pentagon and Other Agencies Slammed for Police Militarization at Senate Hearing, By Jenna McLaughlin, Mother Jones, Tue Sep. 9, 2014 4:07 PM EDT  http://www.motherjones.com/mojo/2014/09/pentagon-slammed-police-militarization-senate-hearing ; accessed on December 28, 2014 at 0035 hrs. P.S.T.).

This is not good, particularly as, e.g., the data in the Mother Jones article suggests that violence against police officers has gone down since the 1990s and crime is down as well—and not because of the increased militarization of the police.

This was a common theme [at the Urban Shield Conference]: Since the bad guys are well armed, police need better defenses and an intimidating appearance. And it's true that guns on the street have gotten bigger—but it's also true that being a cop today is the safest it has been since 1964. The most dangerous year in recent decades was 1973, when there were 134 felony killings of police officers in the line of duty. By 2012, that number had dropped to 47. Some of that might be because police are better protected, but they are also not being attacked as often: Assaults on cops are down 45 percent since their peak in 1971. Indeed, violent crime overall is down in America—it has fallen by nearly half since 1991. (http://www.motherjones.com/politics/2014/10/swat-warrior-cops-police-militarization-urban-shield ; accessed on December 27, 2014 at 2330 hrs. P.S.T.).