Cline on the Constitution – “Defunding” the Police and the Right to Self-Defense.
Efforts to “defund” and dismantle police departments are not about reform, nor are they not about punishing individual police officers for wrongs, real or imagined. They are about weakening the social fabric of the nation, giving license to law breakers and ignoring the resulting harm to the men, women and children the police daily risk their lives to protect.
As surely as the sun rises from the East, the next phase will be movements to “defund” the military. In the great halls of China or the marbled rooms of the Kremlin, they couldn’t have wished for a better scenario than unilateral disarmament of our military. And in the counsels of gangs, cartels, and the network of child traffickers and exploiters, they could not imagine a better situation than a defenseless community. Robbers, looters, murderers, much less the common thief must be salivating.
And what of the day after? When the police pull out, turn over their precincts, dismiss their officers, do the citizens left behind to fend for themselves have any right to protect themselves individually or collectively, by any means necessary? Because one can rest assured that just as the first word screamed out of someone’s mouth toward anyone who might object to the defacing of the Nation’s Capital and its monuments will be “Racism”, the first word screamed if a group of citizens band together to protect their families and property will be “Vigilantism.” And the use of such fear tactics against law-abiding citizens seem to be of the main play in the playbook.
Chicago’s Mayor, for one made that clear. Even though she presides over the murder capital of the United States, awash in handguns, even though she showed not the slightest inclination or competence to meet, much less defeat, armed and violent criminals gangs breaking, looting and burning her city, when a group of men and women gathered together on the streets of their own community to protect each other, the first words she uttered was she “would not tolerate vigilantes.”
And one other aside. There another unseemly side to the “defund the police” movement. A blatant grab for money.
All sources of funding for police departments come from taxes. Money taken from citizens. Of course, what you won’t hear after “defunding” is a discussion about returning the tax dollars to taxpayers. Instead you will witness all kinds of packs slinking out of the woods to pick over the bones of the police budgets.
I have dealt with and supported dozens of non-profits over the decades, and some of them do some good for the community. However, anyone who has dealt regularly with them understands they have a voracious appetite for funding. They are dependent on donations and are constantly engaged in efforts to raise money. Nothing wrong with that. But they are anything but apolitical. Help them and they will praise you to high heaven. And, of course, put you on their phone list. And that is okay.
But when it comes to funding, they are a bottomless pit. You only have to look at San Francisco and consider the untold millions of dollars spent to address the homeless issue. Yet the problem just gets worse every year. All that money, taxpayer money, wasted. And relationships with some of the non-profits can become dicey if they see you as a competitor for funds they would like to have. We saw this recently when legions of non-profits showed up to urge local City Councils in Visalia and Porterville as well as at the County Board of Supervisors to redirect money away from the very police agencies that supported them in the past and give it to whom? To themselves of course. They showed up with their hands out, no shame, and not a red face among them.
So, for citizens left without police protection, or left with a police department crippled by budget cuts, does the Constitution protect the Right to Self-Defense?
It seems a simple question. However, neither the Constitution nor the Bill of Rights expressly provide for a Right to Self-Defense. And if you don’t think it necessary to consider, you haven’t been watching the last few months as we have witnessed basic rights being eroded because Governor’s, Mayors, and their enablers deem it, in their self-declared wisdom, to suspend our rights. Given the animosity shown to those who opposed these restraints, one would expect little patience with citizens who pick up a gun, a baseball bat, or a knife to protect themselves.
First, what is Self-Defense?
The laws in various States define the term differently though there are common elements.
When attacked, a person may use reasonable force against an adversary if he believes he is in immediate danger of bodily harm and the use of force to avoid the harm is necessary.
It bears emphasis, that the level of force in response to the attack must be a reasonable. One may not use deadly force in responding to non-deadly attack. In other words, if someone pops you one in the kisser, you can’t pull your AK-47 and dispatch him though you may sorely wish to do so.
If, however, there is a reasonable belief the attacker intends to inflict death or serious bodily injury, (maybe you are an older fella who’s lost his athleticism, like me, and getting pummeled by the Rock himself who doesn’t appear inclined to let up) well, the use of deadly force in self-defense may be justified. And, again, the belief only has to be a reasonable belief. It matters not whether the deadly threat is actually true. As Justice Holmes said, “Detached reflection cannot be demanded in the presence of an uplifted knife.”
A little more on Deadly Force situations. Some states require a person to retreat if he is attacked if it is safe to do so rather than to use deadly force in one’s defense. The reader may recall the Trayvon Martin case in Florida in 2012 and the discussion of “Stand your Ground” defense. Florida had passed such a law in 2005, obviating the old English rule which was the source of the Duty to Retreat concept.
It depends on the State, whether there is a statutory Duty to Retreat. Being a big fan of Western movies, I always subscribed to the to the theory that the Duty to Retreat rule was adopted by the more effeminate Eastern States. The more manly Western States rejected the Retreat rule. When, at High Noon, you walked down the middle of Main Street to face the bad guy you didn’t high tail it for the hills because someone saddled your horse for you. As one commentator opined, “while there is a strong policy against the unnecessary taking of human life, on the other hand, there is policy against making one act a cowardly and humiliating role.”
(Well, I guess I should add, that was true in a West less populated by “Snowflakes” and “Corporate Apology Tours.”)
There is ample case precedent for the proposition that the Right to Self-Defense has a Constitutional dimension. In McDonald et. al. v City of Chicago decided by the Supreme Court in 2010, Justice Alito said, “Self-Defense is a basic right, recognized by many legal systems from ancient times to the present day.” Citing the earlier decision in Heller vs District of Columbia he reiterated that “individual self-defense is the “central component’ of the Second Amendment. And that the need for defense of self, family, and property is most acute in the home. That was the key to the decision in Heller which decoupled the Militia Clause from the Right to Bear Arms. As Justice Scalia stated, the handgun is “the most preferred firearm in the nation to keep for protection of one’s home and family.” And, therefore, as Alito said in McDonald, “citizens must be permitted to use handguns for the core lawful purpose of self-defense.”
The Supreme Court finds a Right to be Fundamental and, therefore, subject to restraint by the government in only the rarest of circumstances if it is necessary to our “system of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”
In 1765, Blackstone, the great commentator on the English law, referred to the “natural right of resistance and self-preservation.” As with other rights, as was stated in United States v Cruikshank in 1876, The Constitution recognizes the pre-existence of the right. It pre-existed an exists separate and apart from the Bill of Rights. The right does not “depend upon the instrument (Constitution) for its existence.” Rather it depends on Constitution to ensure the right is not “infringed.”
As Justice Scalia wrote of the framers, “They under stood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” Like looking to your government for protection and finding no one there or worse yet, precincts occupied by anarchists.
Lastly, as I’ve explained in previous posts, a Fundamental Right does not have to be expressed in the words of the Bill of Rights to be protected by the Constitution.
I have referred to the Ninth amendment as a source of what we call Unenumerated Rights, that is rights that are not listed in the Bill of Rights, but which the courts have said exist and are worthy of protection under the constitution.
Again the 9th Amendment states that “the Enumeration of certain rights in the Constitution is not meant to disparage or deny other rights retained by the people.” The most famous example of these other rights is the right to privacy.
The right to privacy is nowhere listed in the constitution, yet it cannot be seriously contended that it does not exist. The same is true of the Right to Self-Defense.
The Right to Self-Defense is real and it is protected by the Constitution from unreasonable burdens being placed upon it by corrupt governmental officials.
One more thing to say in conclusion. I led the District Attorney’s office for over two decades. By law I was the Chief Law Enforcement Officer in the County. As in all human endeavors, there were ups and downs both in interactions with staff and the general public. One of the principles I used to teach my top assistants, is to not make permanent judgements of staff within the office, nor supporters outside the office when times are good. You can best judge a person’s character and the sincerity of their support when you are attempting to navigate troubled waters. Our police agencies, locally and across the nation are under siege, figuratively and literally.
They need our support.
For more writings by Phil Cline, visit philcline.com