Category: Bill of Rights

Use of Deadly Force

Use of Deadly Force

Cline on the Constitution-The Rules on the Use of Deadly Force by Police Officers.

A fearful nation is in retreat.  We are deep in the appeasement phase.  History shows it is inevitably a mistake.  Closing one’s eyes to looting, vandalism, tearing up traditions and tearing down sacred monuments doesn’t work.  It doesn’t appease the Tyrant nor the mob.  It emboldens, it encourages, it invites further aggression.  A bully does not suddenly realize the irrationality, the unreasonableness of his actions.  A bully enjoys the fear he creates and presses his victims harder against the wall.  A bully pretends sympathy when it suits his purpose, but secretly laughs as his victim squirms in humiliation.

The current acquiescence of America’s elite is futile. From those atop the country’s institutions in academia, business, politics, bureaucracies, media, book publishing, museums, philanthropies, sports, they assent to one outrage after another, blind to the fact that meeting demands are never enough. Princeton cancels Woodrow Wilson; the historically ignorant topple statues of Ulysses Grant, the author of the Star-Spangled Banner, and the great explorer Christopher Columbus; vandals deface the Lincoln memorial and statues of George Washington: anarchists throw ropes over Andrew Jackson, pseudo intellectuals target Thomas Jefferson for cancellation

Is it inevitable that a day will come when there is the realization that the pandering doesn’t work and the attacks may have to be repelled by force?  And, if so, on whom we will call?  The Police are being disarmed.  Senators and Congressmen arrayed in their fine suits sit over cups of tea and debate what holds the Policeman on the street may use in subduing a violent criminal.  In Los Angeles, already a dangerous city, government leaders propose banning police from using even non-lethal weapons like projectiles, batons and tear gas.

And so, assuming the Police answer the call, as they always have, what level of force can be used?  What are the Constitutional boundaries to the use of force?  And because, the more tools you take away, the more desperate circumstances you create for the officer under attack, the ultimate question.  When can deadly force be used?  And is it a Constitutional question?

As I came up through the ranks as a prosecutor, I worked daily with police officers.  First mostly with street officers, on Dui, domestic violence calls, assault and battery, barroom fights, then later mostly with detectives as I moved on to homicides and major sex crimes.  Even though the movies mostly portray detectives as the heroic type, with the patrolman as window dressing, in real life it was usually the man or woman in uniform on the street who is most important to the criminal justice system.  It’s the patrolman or woman who are on the streets on the night shift.  At two or three a.m., they are the first ones dispatched to the scene of a burglary, a rape, a murder. How they handle the scene and the people they encounter is critical. It takes courage and smarts. 

I am still thankful to the first patrolman on the scene of two homicide cases I took to trial, one a shotgun slaying of a young woman by an ex-boyfriend, and the second a planned murder of a man by his spurned wife. In each case, the first officer on the scene calmly and professionally took charge of the witnesses and preserved and documented the evidence I needed in securing the convictions two years later.  Never underestimate the professionalism and dedication of the Cop on the beat. 

As I set about learning my craft, I did a lot of ride-alongs with officers because I wanted to understand what they faced on the streets. 

Was it dangerous out there?  It was.  Of course, I stayed safely in the patrol car or far away from the potential violence, but I watched and the officers never had that option. 

This point bears emphasis.  Unless you have been in a fight, a real hand to hand fight with an hyped up and bulked up adult male or female intent on hurting you and resisting your every effort to subdue him or her, unless you have had to experience the sheer physical difficulty, you are not entitled to make judgements on what force is necessary or what tools should be used.  Law Enforcement has experts who do have the experience and do intensive and continual training on how to do the job with minimal risk to the officer or the person he encounters, but like any battle plan, when your own life and the lives of your partners and innocent bystanders is at risk, you use any means necessary if you want to go home that night.

The leading case on the Constitutional scope of the use of deadly force by a police officer is Tennessee v Garner decided in 1985. 

The framework of the case itself provides insight into how the rules on the use of deadly force developed and their efficacy.  We can look back over the 35 years since Garner was decided and, perhaps, evaluate the wisdom of the decision. The majority decision was written by Justice White, but an interesting dissent was penned by Justice Sandra Day O’Connor and joined in by Chief Justice Burger and the future Chief Justice, Willian Rehnquist. 

That dissenting opinion made some predictions that it is interesting to consider. 

In Tennessee v Garner, A Memphis police officer killed a young man attempting to escape after committing a nighttime burglary of a residence. 

The officer was dispatched to the scene and found the residence had been forcibly entered through a window and saw lights on inside the house. The officer saw a broken window and realized “that something was wrong inside,”. He could not determine whether anyone – either a burglar or a member of the household – was within the residence.  The Officer walked behind the house, and he heard a door slam. He saw Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, the officer fired his revolver and mortally wounded the suspected burglar.

Ten dollars and a purse taken from the residence was found on his person. 

The young man’s father sued in Federal Court under section 1983 of the Civil Rights Act discussed in my last post. The purpose of his lawsuit was to seek monetary compensation. 

The defense asserted by the officer was based upon a Tennessee statute which provided that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, “the officer may use all the necessary means to effect the arrest.” 

Basic to understanding how this case ends up being cognizable in the Federal court system instead of being relegated to State Courts is the word “seizure” in the Fourth Amendment.  The Fourth Amendment protects citizens against “Unreasonable Search and Seizure.” Whenever an officer restrains a person from walking away, the Supreme Court has held that constitutes a seizure.  Arresting a man is, therefore, a seizure of his person.  You could say, getting killed is about as seized as one can get.  

If the use of force in effecting an arrest (seizure) is unreasonable then the person’s Fourth Amendment rights have been violated under color of authority and section 1983 of the Civil Rights act (discussed in my last post) gets one into federal court.

Once the Garner case reached the Supreme Court, it found the Tennessee statute unconstitutional insofar as it authorized the use of deadly force against an apparently unarmed, “nondangerous” fleeing suspect.  Such force, the Court held, may not be used unless necessary to prevent the escape AND the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. 

The Court went to pains to point out the burglar was young, slight, and unarmed and the fact that he broke into an occupied dwelling at night did not “automatically mean he is dangerous.”

It was not enough, the Court held, that the felon was fleeing, the officer must also have believed that he posed a significant threat to the officer or other people.  And the belief must be reasonable viewed in the abstract. If there is no danger the officer cannot bring the escaping felon down with deadly force.   

Consistent with last week’s post the Court found that because the Officer relied in good faith on the Tennessee Statue, he had qualified immunity.  But, as usual, that didn’t let the city off the hook for a monetary recovery.

The Court was presented with arguments that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. 

These arguments were rejected.  The Court said, “Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects.” 

The Court went on to qualify the rule depending on the circumstances, “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. 

The Court among other considerations did acknowledge the Common-Law rule in effect at the time the Four Amendment was adopted which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon. However, it rejected its application after evaluating modern trends in law enforcement techniques.

In the dissent by Justice O”Connor, she took issue with the Court’s rejection of the Common Law rule and the substitution of the Court’s judgement for that of the Tennessee legislature.

She said, “Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court’s reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.”

The Justice argued, the Majority opinion obscured what must be decided in the case. 

“The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.”

And the Court emphasized that “In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the “rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat.” The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. 

And Justice O’Connor rejected the Majoirty’s attempt to minimize the nature of the crime.  “Household burglaries not only represent the illegal entry into a person’s home, but also “pos[e] real risk of serious harm to others.” Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority’s confident assertion that “burglaries only rarely involve physical violence.” 

And what of the fact that a young man lost is life? 

Justice O’Connor refuses to minimize the fact that a criminal makes choices with consequences.  

“The majority declares that “[t]he suspect’s fundamental interest in his own life need not be elaborated upon.” This blithe assertion hardly provides an adequate substitute for the majority’s failure to acknowledge the distinctive manner in which the suspect’s interest in his life is even exposed to risk. The officer’s use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person’s interest in his life, The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.”

Indeed.

For more writings by Phil Cline, visit philcline.com

Fear and Qualified Immunity

Fear and Qualified Immunity

Cline on the Constitution – Qualified Immunity and The Paralysis of Fear

We are afraid.  

Americans, once a proud, robust, hearty people, sometimes stubborn, often stern, cower in fear.  College professors are afraid to speak the truth; College Administrators are intimidated by students. It is rare the author, with the fortitude to call a man a man and a woman a woman. Today few good men and women can participate in the public arena without fear.  Those holding public office, dare not make a provocative comment, render an opinion, take a risk, do their department’s business if it might offend the wrong person or group.

The intimidation is palpable.  Business Executives are made to apologize for acts or words decades old. They are made to kneel in abject confessions of sins, for acting in accordance with the times and not anticipating what passes for virtue in this new more correct age.  One wonders, where went the Captains of Industry?  Those tough-minded builders of things, throwing up buildings, roads, bridges, dams, factories. What happened to those gruff individualists who brooked no quarter, hammering a project done, not giving a hoot who gets offended or why. 

Well, they are gone.  There are no Titians of Industry anymore.  None.  Instead our business leaders are wimpy smart kids with MBAs, who hire other wimpy smart kids who spend their time on things that don’t matter like who is correct today and who isn’t.  They never produce a thing.  Except cowards.

Everywhere there is fear of cyber bullying especially in the young.  It is a fear as a mind control technique perfected on college campuses and now exported to the outside world, corporations, news outlets, sports leagues, teaching, the arts, medicine, science, social studies.

A culture is being torn down before our very eyes.  A great Western culture developed over dozens of centuries producing wonderful art and sculpture is being banned, works by writers of genius and insight are being pulled from bookshelves.  Monument to great explorers and extollers of liberty like Washington, Jefferson and Lincoln and, yes, Columbus, are being defaced and torn down.  

And Americans do nothing.

Why?  Speak up. Resist. And you can get fired, dismissed, harassed, beat up.  Canceled. 

There is Fear. And Fear causes paralysis.  

Ironically, two issues that have been discussed in this last few weeks are based upon Fear. And each is a doctrine of Constitutional dimension in which the Supreme Court addresses the paralysis of fear. The first is Qualified Immunity, the subject of this segment, and the second is the use of Deadly Force by Police Officers, which I will discuss in my next post.

Qualified Immunity:

First let’s understand what Immunity is and then discuss why it is of such Constitutional significance that it is protected by the Supreme Court. 

There are two kinds of immunity, Absolute and Qualified. Police Officers (and other officials) enjoy Qualified Immunity. But it is helpful to understand the concept by starting the discussion with Absolute Immunity.

In my time as District Attorney, like many of my colleagues around the State, I found it necessary, on occasion, to investigate and prosecute individuals that were rich, powerful, influential and had many powerful friends. There was no limit to the amount of money they could spend on their defense.   And they had the financial means to personally retaliate against anyone who challenged their domain.  It is one thing, to face political opposition every four years.  To be challenged and maybe win, and maybe lose.  If you can’t face up to that without whining, then you have no business holding office.  That is not something to fear.  What is something to fear, however, is the loss of your home, the disability of endless lawsuits and legal fees threatening to bankrupt you and having a clueless judge pass on your every move. Why would one choose to take on a powerful person if he or she was to face endless lawsuits and the destruction of their family’s financial well-being. 

Without immunity that is what one can expect.  And that is the reason Prosecutors are protected by Absolute Immunity.

The Supreme Court has recognized that without such a protection the fear of endless personal lawsuits engenders a chilling effect on the public official.  It’s a paralysis caused by fear.  And it is not a new concept.  It was recognized at Common law and ultimately preserved by decisions of the Supreme court.    It’s the reason for Absolute Immunity.  And to a lesser extent the Qualified Immunity police officers have. 

The Historical context is important. 

After the Civil War, the Thirteenth Amendment (which outlawed involuntary servitude) and the Fourteenth Amendment (which guaranteed Equal Protection of Laws and Due Process by the States) was passed.  These two Amendments had unique sections authorizing Congress to enact legislation for the enforcement of the Amendments.  Congress took advantage of the provisions and passed a series of Civil Rights Acts.  

One of the Acts had Section 1983 of the United States Code which says, “Every person who, under color of [authority] subjects any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .”  

It is this section that is used to sue public officials, including police officers, who violate someone’s civil rights, including killing or injuring them in the application of force.  Under the clear language of section 1983, an officer is personally liable if he is found to have acted under color of his authority as a peace officer and his actions resulted in the deprivation of an individual’s rights.  

However, the Supreme court has held that Congress, when it passed the civil rights legislation, did not intend to abrogate Immunities that existed at Common Law.  Immunities that existed at Common Law at the time the legislation was passed included Absolute Immunity for certain high officials and Qualified Immunity for others, including police officers.

Absolute immunity means that you cannot be required to defend a lawsuit for any act done within the scope of the duties of the office.  Even if done for base reasons. Doesn’t matter.  It’s over.  No case that can be brought. No case has to be defended.  

Absolute immunity exists for Judges, Prosecutors, and Legislators.  And Presidents.  If a President acts within the scope of his office, he can’t be personally sued for money damages.  As long as he is in office when he acts.  For example, when one of President Clinton’s large haired doxies sued him for sexual assault committed before he was President, the Supreme Court rejected his assertion of Absolute Immunity. Since the act was alleged to have happened before he assumed the Presidency he was required to defend against the suit. 

Qualified Immunity for lesser officials including police officers, provides less protection. But it relies on the same principles.

In Harlow vs. Fitzgerald decided in 1985, the Supreme Court in upholding that government officials are entitled to Qualified Immunity reasoned that the doctrine was justified by “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.” The Supreme Court said, “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”  In other words so public officials and police officers aren’t fearful that if they act they will face a deluge of lawsuits.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. 

Specifically, Qualified Immunity protects a government official from lawsuits in which conjured up, novel theories are advanced that some act of an official violated a person’s rights. The doctrine restricts such suits to only those where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that a defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

For example, in Anderson v Creighton, a 1987 case, the Supreme Court held that when an officer of the law (in this case, an FBI officer) conducted a search which violated the Fourth Amendment that officer was entitled to Qualified Immunity if a reasonable officer could have believed that the search constitutionally complied with the Fourth Amendment.  It is not expected that a police officer has to know or anticipate the endless and obscure nuances courts have a tendency to append to legal rules. 

There is clearly a movement to deprive police officers the protections of the Qualified Immunity doctrine. Fortunately, so far at least, the Supreme Court has turned away invitations to do so. But the attacks will continue.  Like efforts to disarm, defund, and defame the brave and dedicated men and women in law enforcement, removing the basic protection of Qualified Immunity in which our officers must daily risk financial ruin if they act will further paralyze police from insuring we and our families are safe from the ever more violent bullying spreading through our society. 

For more writings by Phil Cline, visit philcline.com 

Self-Defense

Self-Defense

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 

Cline on the Constitution

Cline on the Constitution

Who has the Power?

Talk about your ironic twists of fate.  We may soon see one national emergency clarify whether another national emergency is real.  That’s important.  

In the name of public health, governors and mayors have claimed extraordinary powers over citizens and abrogated Constitutional rights due to the threat of the Covid virus.  Our schools have been closed, our interactions with fellow citizens regulated, our economy destroyed, and our health system put on life support.  And overlaying it all, have been given rules to live by under the rubric of “Social Distancing.” Every citizen in the United States, now knows what that means.  Get too close to someone in the Grocery Store and you are liable to get yelled at.  

But then the death of a black man by a white police officer led to Days of mass protests in venues far and wide.  It also led to Nights of Looting, Arson and Mayhem in cities in every region of the Country.  As to the later, few events in recent history have reinforced the wisdom of the Framers in enacting the Second Amendment.  The Unilateral disarmament of the police over the last decade, coupled with local and state government’s unwillingness or inability to protect its citizens underline the prudence of our founders in preserving our ability to defend ourselves from marauding savages, be it on the frontier of the eighteenth century or in more modern urban environments.

That aside, these mass gatherings and actions were many things: what they were not were exercises in Social Distancing.  If preachy rhetoric about the unacceptable dangers of congregants praying together in a pew are true, and, so bad Freedom of Religion can be trashed, then in a few weeks our nation may be brought low by mass infections and thousands, maybe millions of deaths.  That’s what the “experts” told us. Guess we will just have to wait and see.

From a Constitutional perspective, a common issue has arisen in how government may respond to both emergencies. There have been claims of power to act by the President on the one hand contradicted by claims of power to act by the Governors of the States on the other hand.  

Who has the power?  A legitimate question. Is it the one, both or neither?  

The answers I have seen in mass media and legal journals have been unsatisfying.  For sure, the answers are all over the place because of the overlay of politics.  The studied lack of interest on behalf of the media in accurate reporting also contribute to the confusion.  But there is another reason.  And that is because the Constitutional lines of authority to act are blurred by our system of Federalism.  That’s intentional.  The Framers of the Constitution wanted it that way and decades of tinkering by Presidents and the Supreme Court have fogged the lines of authority even further.  Why?  

Federalism is about Power.  Federalism is about the danger of too much power in too few hands.  And Federalism is about the intentional dilution of that power by dividing it among different levels of government.  

After the Revolution, our country’s first governmental system was not based on our revered Constitution. Rather it was organized under Articles of Confederation.  (Our first Confederacy!).  

While the States had fought together and thrown off the yoke of the Crown together, they had their own parochial interests and did not want to cede their power to other States much less to a Central Government.   Under the Articles of Confederation, the Federal government had no power to raise revenue and States even had their own standing armies and navies.  Ironically it was an insurrection of sorts, Shay’s rebellion, that made it apparent that a weak central government that was powerless even before a bunch of angry farmers had to be replaced.   

The Articles were cast aside, and a Constitution was drafted and submitted to the States for ratification.  The Bill of Rights followed closely thereafter. 

As the Constitution was drafted, there were still strong interests in maintaining the authority in the States as well as a general distrust of the power of centralized government born of the experiences and learning of the Framers.  In a sense while the Framers created a central government powerful enough to survive the challenges posed by foreign powers as well as conquering the Frontier, their innate distrust of power led them to dilute it in two distinct ways.  

The first is Horizontal.  There is a Separation of Powers between the Executive, Legislative and Judicial branches. And within the distribution of those powers, the Framers incorporated Checks and Balances to dilute the individual powers even more.  (See previous posts.)

The other way power was diluted was along a vertical axis; a division of powers between the Federal government and the States.   While we naturally think of a top down chain of command, that is not how it works in our system adhering to Federalist principles.  

The Tenth Amendment, provides, “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

The Federal government is, therefore, a government of Delegated Powers.  It has only those powers delegated to it by the Constitution.  All others are retained by the States or, and (this sometimes is glossed over), the People.  There is nothing in the Constitution, for example, that delegates to the Federal government power over public health issues.  Tradition, it is said, left matters of public health to the States. Problem is, that has not the been the practice either as to health issues or other issues. The lines have been blurred.  

 Another National Emergency, the Great Depression was the major event in history that removed many issues from strictly State control and made them Federal.  

During the Depression, the country was teetering, about to fall into a socialist abyss when a fresh, “can do”, populist President was elected.  Franklin Roosevelt. 

He started like wildfire, putting forward new programs to get the government and economy going again. Problem was the programs assumed powers the federal government did not have. And an old guard on the Supreme Court kept striking them down. And the Tenth Amendment was repeatedly relied upon.

In just a few months, The Court found over a half dozen of Roosevelt’s programs unconstitutional.  In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.” And it appeared his new Social Security and National Labor Relations Acts would soon suffer the same fate.

Roosevelt reacted. He came up with a plan.  A Court Packing Plan.  Within two months of his second inauguration, he struck.  In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy.  The average age of the Justices was seventy-one.  His plan would give him six new Supreme Court appointments and over forty new lower court Justices. 

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective as well as the impact the proposal had on the decisions of the Supreme Court and traditional Federalism.

Regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency.   They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done.  And in this confrontation with the Executive Branch, they saw they were going to ultimately lose.  They switched their rulings to save their institution from change.

From that point forward, no other New Deal program was overturned by the Supreme Court.

And for the next sixty years the Supreme Court never once struck down an expansion of federal power into areas traditionally reserved to the States.  Federal regulations and laws today govern almost every aspect of our lives in areas not specifically delegated to the Federal government, including health.  

I have previously posted about the extraordinary powers of the President in an emergency.  Probably the two most famous examples are Lincoln’s suspension of habeas corpus during the Civil War and Roosevelt’s Internment of American Citizens of Japanese descent during the second World War.  

If the Covid virus is indeed the existential threat it has been purported to be, there is little doubt that the President could assert power to act on the crisis over that of Governors. 

One further note.  There is a little referenced clause in the Constitution that is extremely relevant, given the unilateral actions of many Governors, including California’s.  This is the Guarantee Clause.  Article IV, Section 4 states: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .” 

One thing is clear Governor’s taking it upon themselves to suspend civil liberties and govern by fiat, is not the exercise of a Republican form of government.  A Republican form of government may not require two houses in the legislature, but it does require a legislature. Governor’s don’t get to ignore their legislatures in propounding laws.

The United States, in the form of Presidential action has the power act to require the States return to a Republican form of government. 

So far both sides have avoided a direct conflict. As a recovering politician of sorts, I would ordinarily say that is good.  But though we don’t want to admit it, these two emergencies have put our nation is on its knees.  The longer that goes on the more we are apt to welcome decisive federal action whether it fits with tradition or not. 

The Power to Close and the Power to Re-open

The Power to Close and the Power to Re-open

This week’s segment of Cline on the Constitution discusses The Power to Close Down and Re-Open.

I have watched with interest the developing debate over “reopening” American society. It is playing out at the federal, state and local levels. It seeks answers to exactly who has power under the Constitution as well as under a wide variety of state laws.  It involves basic human rights like Freedom of Religion, Freedom of Travel, Freedom to pursue one’s chosen vocation.  

These and related matters are finally finding their way to the Courts.  I’ve been surprised it has taken as long as it has.  It may be because there is such confusion about what legal remedy to seek, which legal forum to select, and who exactly, if we really want to sue the bastards, do we file our lawsuit against.  And, of course, one big deterrent is the way the Courts themselves rushed to close and delay their proceedings.  Not many courageous heroes stepping forward from the legal profession.  Though there are exceptions, in California, under the stewardship of a clueless State Chief Justice the Courts mostly brave the dangers with Zoom broadcasts from their well-appointed chambers or their coastal condominiums.

In attempting to put the matter in the proper perspective there needs to be clarity regarding what exactly the issue is are we talking about.  As I have discussed in past posts the United States Supreme Court has recognized that Government in general and the President and Congress in particular have extraordinary powers to act in an emergency like war. And because matters of public health are traditionally handled at the State level, local authorities can act enact regulations and rules that would by Constitutionally unacceptable in ordinary times.  Both levels of government can even suspend civil rights if there is a compelling need and the actions of the government are narrowly focused on addressing that need.   This is called the Strict Scrutiny test and there is ample Supreme Court precedent for its application.  

But there is no precedent for setting up a shadow government that regulates every aspect of a citizen’s life, arbitrarily categorizes one’s livelihood and role in society as “essential” or “non-essential” and governs the most mundane types of personal conduct.  And, by the way, though the Virus is terribly dangerous and vicious in its consequences, this is not a war.  War is a tired metaphor and is overused by the Media and public officials.  Not every disagreement is a “battle” and not every criticism is an “attack.” And, when discussing the Constitution and our rights, preciseness of language is important.  It is one thing to fight a real war that has existential consequences for the future of the nation and another altogether to respond to a public health emergency. 

There is nothing in the Constitution which expressly grants the power to government, Federal or State, to suspend all civil rights in the name of a health emergency.  And there is certainly no clause in the Constitution which grants officials the power to “close down” society and then decide when it will be allowed to reopen. Those powers, it is being argued, are implied from past exceptions made in very limited circumstances which the Supreme Court found acceptable.  When the President and the Governors engage in a debate over which has the power to reopen, the answer is neither because neither has the power to keep it closed. 

The Virus does present a unique threat and also, from a Constitutional perspective, novel issues.  While there is precedent, as I’ve stated, for imposing quarantines and isolating individuals to limit the spread of infectious disease, there is no historical basis for actions as widespread as has been imposed in the last couple of months.  

There is no clear answer to how the Constitutional questions will be answered, but we can say there will be a need to address three issues.  1) The Supreme Court case most often cited as a basis for extraordinary governmental actions in health emergencies is well over a hundred years old, did not involve the type of emergency we now face and is of questionable validity in modern America. 2) Federalism issues regarding the sharing of powers between the Federal Government and the States need to remain in balance. 3) Equal Protection of the Laws as guaranteed by the Fourteenth Amendment should be addressed, given the wildly unequal and uneven application of the shutdown and reopening rules from State to State, indeed from county to county and city to city.

Because of space limitations I will discuss each of the three issues in separate posts.

The Precedent.

The Supreme Court in 1905 decided the case of Jacobson v Massachusetts.  Jacobson refused to be vaccinated against smallpox.  A monetary fine was levied against him.  The Supreme Court upheld the fine.  It held “the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety peace, good order and morals of the community. Even liberty itself is not unrestricted license to act according to one’s own will.  It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.”

Though 115 years old, the Jacobson case continues to be cited by lower federal courts in cases of public health emergencies like the limited quarantines used during the Ebola scare of a few years ago as well as some of the cases involving restrictions on religious gatherings during the current Coronavirus emergency.  And the Attorney General of California has heavily relied on the Jacobson case to defend the draconian assertions of power by our own Governor.  

Many scholars, however, are of the opinion that Jacobson is simply outdated.  

In 1905, individual rights we take for granted today did not exist.  The incorporation doctrine which was used to make the Bill of Rights applicable to State Governments instead of the being limited to the Federal Government as originally drafted had not been broadly applied.  (For example, the First Amendment states “Congress shall make no law abridging Freedom of Speech” it says nothing about States doing it. It took the incorporation doctrine to extend the prohibition to the States). Additionally, in 1905, Women could not vote, African Americans were subjected to Jim Crow laws and the “Separate but Equal” segregation allowed under the infamous Plessy vs Ferguson case dominated the South and some other regions of the Country. 

To communicate the flavor of the times, one commentator pointed to a decision which used Jacobson as precedent. It was penned by no less an eminent Supreme Court Justice than the famous Oliver Wendell Holmes. It was rendered in 1927 and captures the dangerous deference the Court in those days paid to State actions if the State cited as justification “the public good.”  

In that decision, Buck v Bell, the Court citing Jacobson upheld the forced sterilization of a young woman. Among other things Holmes opined, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.  Three generations of imbeciles are enough.”  

It beggars the imagination that the Supreme Court would uphold such a rule today.  Yet Buck v Bell was a case based on Jacobson, and Jacobson is the same case being cited today by California’s Attorney General to defend orders severely restraining Californian’s personal liberities.

The Supreme Court has come a long way in its willingness to restrain the worse impulses of those who lean toward petty tyranny and who somehow come to occupy important offices across our land. If the Court fails to strike down the Jacobson formulation as arcane and contrary to our understanding or rights, I fear permanent damage will be done to the Constitution.  One hypothetical may be relevant. Consider this: there are those who believe Global Warming is an imminent public health threat and constitutes a dire emergency.  Does that mean that if these True Believers are placed in office, they have the power to suspend the Bill of Rights until the threat of Global Warming is eliminated?

For more writings by Phil Cline, visit philcline.com

Cline on the Constitution

Cline on the Constitution

Cline on the Constitution, Interfering with Religious Practices

Over a hundred years ago, Justice Louis Brandeis said, “experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

Weeks into it now, the lock down of the American Public in the name of a Health Crisis Emergency continues unabated. Each day from every corner of the nation, bubbles up new rules for how we must live our lives.  They emerge from every level of government, top to bottom and sideways from sometimes the most obscure bureaucracies.  Some rules are understandable as being reasonably related to the goal of the slowing the spread of the Coronavirus.  Others are just plain stupid.  Forbidding people at the store to buy groceries from wandering over to purchase garden supplies. Threatening them if they drive to their vacation homes. These and many more are of questionable constitutionality even in a state of emergency. 

The truth is there is no sure-fire way of stopping the virus completely.  Not every person can be protected from infection.  Not every innocent life can’t be saved.  At some point there has to be a balance between preserving our society and protecting our precious freedoms and striving for the best possible medical outcomes.

It has been my good fortune to have had a decades long career in public office. And during that time, I have dealt with hundreds of local, state and federal officials, including Judges, Congressmen, Senators and countless elected office holders.  Most have special talents and are bright and hardworking.  But one must never lose sight of the fact that as Justice Brandeis reminded us, they have the same foibles as the general population and in the same proportion.  They can be vain, arrogant, power mad, greedy and protective of their prerogatives. And, being human, when they find themselves in possession of too much power, they will abuse that power. That is true of a Governor as well as a City Councilman; it is true of a Sheriff as well as Judge. 

The Framers of our Constitution understood this human frailty and built safeguards in the form of Checks and Balances into the structure of our system of Government.  They don’t always seem to be working particularly well right now.  The leaders of our Justice system, instead of emulating the courage of our Doctors, nurses, and first responders has opted closure and delay and for self-protection. Many seem to be in hiding.  Our elected representatives with a few exceptions, are not even giving lip service to the rights and liberties being trampled on. 

This “emergency” has now been going on for weeks, and many say it must continue for months.  Is Dictatorial rule to remain in place?  No hearings, no legislative findings, no voting by the population on the rules being promulgated about how they may conduct themselves.  

As we celebrate Easter, of particular concern is the apparent targeting of religious practices.  Gatherings for religious observance are completely banned in some places. In others they are severely limited.  And there is very little attempt at accommodation by compromising on distancing, face covers etc., that are acceptable for grocery shopping but not, apparently worshiping one’s God. 

Instead there are threats of fines and jail for non-compliance with new rules. In Kentucky the governor threatened to have authorities take license plates numbers of attendees at Easter gatherings and to put them under house arrest for 14 days. No due process, no hearing, no trial. Rules criminalizing behavior issued by fiat, without any legislative or judicial action.  

On this Easter Sunday, I thought I would review a few Constitutional principles. I will limit the discussion to Freedom of Religion, though similar concerns are present across the whole array of individual freedoms.   

The First Amendment says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;”

As can be seen, there are two distinct clauses: The Establishment Clause and the Free Exercise Clause.  

The First Clause, The Establishment Clause, contains a prohibition against the “establishment” of a State Religion like the Framers had experienced with the Church of England.  Gradually, the Supreme Court expanded the definition to include any “excessive entanglement” by the government in religion including endorsing, furthering or supporting religion. Familiar cases involve challenges to prayer in public schools, posting the Ten Commandments in a Courthouse, or having prayers to open governmental meetings like city councils.  

The Second Clause prohibits the government from “Interfering” in an individual’s religious practices.  For example, the taking of the sacrament is a religious practice.  Government rules prohibiting or requiring it would be unconstitutional. 

The targeting we are seeing this Sunday involve The Free Exercise Clause and governmental orders restricting religious practices. 

The Supreme Court has had a checkered past in interpreting government rules which have the effect of interfering with religious practices.  The tenor of the debate can be traced back to Thomas Jefferson who wrote “I believe that religion is a matter which lies solely between man and his God; that the legislative powers of the Government reach actions only and not opinion.”  

Despite the literal reading of the amendment the decisions of the Supreme Court would follow Jefferson and distinguish between “thought” which could not be regulated and “action” which could.  For example, Reynolds v. U.S. in 1879 which held the Mormon practice of polygamy could be outlawed.  It was a religious practice, but under general law the Court ruled it was an act that could be prohibited. 

But then in 1940 the Court overturned convictions of Jehovah’s Witnesses for soliciting funds door to door in violation of local ordinances.  Of interest is that what the Court found most troubling was the law in question empowered a single administrative official to decide if an exercise was religious.  The Court was concerned that about the potential for arbitrary and capricious action by singular officials.  Not unlike the current situation. 

Eventually the Warren Court fashioned a formula that embraced the Strict Scrutiny test I have alluded to in other posts.  While the government may restrict certain religious practices for valid secular reasons, the Government could only do so by employing the least restrictive means available to achieve a valid governmental purpose.  Court decisions in the area have sharply split. There have been many 5 to 4 votes, the Justices reflecting a divide in the how the narrowly the Clause should be interpreted.  

Nevertheless, for decades the Supreme Court, when judging whether a governmental rule impinged on a religious practice used the Strict Scrutiny test requiring the government to show that it has an overwhelmingly compelling interest in regulating conduct.   For example, the Amish were able to successfully argue there was no compelling interest in requiring them to comply with compulsory school attendance laws.  Since it interfered with their practice of religion the laws were found to be unconstitutional as applied to them. 

In 1990 things changed.  In the case of Employment Division vs. Smith, in an opinion penned by Justice Scalia, on a 5-4 vote, the court held the strict scrutiny test no longer applied. The case involved two Native American men who used peyote in a sacramental ritual.  They were fired from their jobs for using the illegal substance off duty. They turned right around and applied for unemployment benefits. A state law denied them unemployment benefits because they were fired for violating a criminal law.  

The Supreme Court in reviewing the case, departed from the Strict Scrutiny Test and adopted what became known as The Neutrality test.  The denial of their claims was upheld.  The new test provided that an individual’s religious beliefs do not excuse a person from complying with valid neutral laws which are applied across the board and not specifically directed at religious practices.  

Then things got complicated.  Congress got involved.  A bipartisan coalition with members as diverse as Ted Kennedy and Orin Hatch felt that this new test would allow too many opportunities for punishing citizens who were engaged in Religious exercises.  In 1993 the Religious Freedom Restoration Act was passed by Congress which reinstated the strict scrutiny test.  However, the Court took offense and ruled that Congress had encroached on their area and violated the Separation of Powers. Their ruling limited the Law’s application to actions of the Federal government.  And to further complicate matters various States, but not all, passed their own Religious Freedom Restoration Acts.  Bottom line? Whether Strict Scrutiny applies to local governmental actions interfering with Religious Practices is in a state of flux.

That aside, as matters now stand, actions of the state and local government challenged as interfering with religious practices must satisfy the Neutrality Test.   For example, in Mississippi local officials took action last week to prohibit an Easter gathering which contemplated having a drive-up church in which worshipers stayed in cars to hear and participate in the service.   A federal judge ruled the actions of the officials unconstitutional because they targeted church gatherings, but not other gatherings like at grocery stores parking lots etc. They failed the Neutrality Test.

As this shut down stretches into the foreseeable future, local and state officials, before they issue new rules, would be wise to take the time to consider how they can accommodate the rights and needs of their citizens.  It would require giving some thought to finding the least restrictive means of interfering with the freedoms of the citizens of a democracy. Don’t go overboard.  It will be worth it in keeping the support of the citizens rather than criminalizing their behavior. 

For more writings by Phil Cline, visit philcline.com

Cline on the Constitution

Cline on the Constitution

Self-Defense against the government?

The nature of the Coronavirus has led every level of government; City, County, State and Federal; to take emergency action to mitigate the impact on society.  And that includes intruding upon civil liberties. 

There is no longer enough room to list all the ways our freedom is being restrained.  There are many. They range from illegal stops by police on cars with out of state license plates, to restraints on the exercise of religion, to prohibitions on engaging in business and in a chilling development encouragements, like the one issued by the Mayor of Los Angeles, offering monetary awards for neighbors to spy and report on their neighbor.

These orders restraining civil liberties with threats of arrest, monetary sanctions and even confiscation of property are daily being issued by officials lower and lower on the rungs of governmental power. It’s one thing for the President to exercise Emergency Powers in a crisis, or even a Governor, it is a wholly other matter for some small city Mayor or city councilman or some factotum in the back waters of a county health department to exercise control over our daily lives with threats of jail and fines for using the public roads or attending houses of worship.

One development piqued my interest.  

After a decade of police being disarmed and hamstrung in their interactions with criminals, courts across the land, and in our own county, have taken it upon themselves, against the advice of law enforcement experts, to issue orders for the release from jails of dangerous felons and other criminals.  

There is a delicious irony here.   Instead of relying on the competence of Sheriffs to run the jails and protect the inmates in their care, judges release dangerous criminals out of a misplaced concern for the virus being spread in the jails.  And at the same time, we have small town mayors threatening to refill the jails with law abiding citizens who choose to worship together or play basketball at a local park. I suppose there will be plenty of room to jail our citizens since so many of the criminals will be out on the streets.

Beyond the irony, it does hold the potential for civil unrest. 

At the same time these orders have put the public in danger, there have been efforts to keep citizens from purchasing guns and ammo to protect themselves.

I thought it would be interesting to revisit the Second Amendment foundations with this potential governmental overreach and the danger of civil unrest in mind.  

Historically there are two foundations to the Right to Bear Arms protected by the Second Amendment to the Constitution. Most serious commentary regarding the right to bear arms and most cases decided by the Supreme Court center on the first foundation, that is whether someone should be able to arm themselves for self-defense against criminals or for hunting and sporting purposes. 

For example during oral argument in District of Columbia v Heller, the case decision which debunked the theory that the Right to Bear Arms was solely coupled to the operations of Citizen Militias, Justice Kennedy asked a poignant question, whether in the context of Early American society the right had to do with “the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?”

Heller decided in 2008 and McDonald v Chicago decided in 2010 confirmed this basis. The Right to Bear Arms is tied to the right to individual self-defense.

But there is also a second foundation, seldom discussed. The Right to Bear Arms is tied to a right of self-defense against governmental oppression.

Modernly, arguments that it may necessary to protect oneself from repressive measures by the government have for the most part been relegated to fringe anti-government, Patriot, and survivalists’ movements. They are seldom taken seriously and almost never find their way into briefs filed with the Court nor in case decisions issued by the Court.  There is no need because Courts have been quick to hear and decide cases regarding the slightest infringement on the Bill of Rights. Overreaching by governmental entities is quickly restrained.

Nevertheless, there is a basis here. Always has been.  And we may find it relevant if the current Emergency is prolonged and if increasingly severe restraints on freedom and penalties for non-compliance are put in place. 

For Americans this foundation to the Right to Bear Arms can be traced to April 19, 1775, when a group of Americans bearing their own firearms stood before a contingent of British Redcoat soldiers representing the greatest military power on Earth. These Americans bore their own private arms on the town common of Concord, Massachusetts. And as Ralph Waldo Emerson’s said: “Here once the embattled farmers stood / And fired the shot heard round the world.” The use of those guns launched the American Revolution against a repressive government.

When years later, in 1789, The Founders drafted the Bill of Rights they recalled the British efforts to confiscate private firearms from the American colonists and that those same colonists used such firearms to start and help win the American Revolution.

The leading (and only) judicial precedent on the Statute known to the American Founders involved the prosecution of Sir John Knight in 1686 in England.  A Statute prohibited persons “from going or riding armed in affray of peace,” and the charges alleged Knight “did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects. The case was tried and Knight was acquitted. The Chief Justice presiding over the courts said the meaning of the Statute “was to punish people who go armed to terrify the King’s subjects.”

Knight was found not guilty. Why? He had walked in the streets and gone into a church service with a gun. But nothing in the evidence suggested that he had threatened anyone, brandished a weapon, or started a fight. 

The foundation for the ruling upholding his right to bear arms had a historical context.

The Restoration of the Stuarts in 1660 entailed measures to disarm the monarchy’s political enemies. In 1662 Charles II passed a bill empowering official “to search for and seize all arms” possessed by a person judged to be dangerous to the peace of the kingdom.”

The reason for such laws, William Blackstone, universally acknowledged as the foremost authority on British law, observed, was “prevention of popular insurrections and resistance to the government, by disarming the bulk of the people . . .”

James II continued the same repressive policies, which eventually sparked the Glorious Revolution of 1688. 

The Declaration of Rights of 1689, sparked by the revolution, listed the ways that James II attempted to subvert “the Laws and Liberties of this Kingdom,” including: “By causing several good Subjects, being Protestants, to be disarmed, contrary to law.”

Blackstone maintained that the declaration contained “absolute rights” of “personal security, personal liberty, and private property” to wit, “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

The Americans would hold tightly to this fundamental right of Englishmen when their freedom was threatened and violated by George III.             

As the Supreme Court said in McDonald, “The right to keep and bear arms was considered . . . fundamental by those who drafted and ratified the Bill of Rights.” 

In The Federalist No. 46, James Madison heralded “the advantage of being armed, which the Americans possess over the people of almost every other nation,” adding: “Notwithstanding the military establishments in the several kingdoms of Europe, . . . the governments are afraid to trust the people with arms.” 

George Mason opined that “when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised . . . to disarm the people; that it was the best and most effectual way to enslave them.”

The Framers understood that trust in government, any government, not to abuse its power over its citizens, not to compromise on their rights, was dangerous.  

Is it okay for Government to compromise our rights in an Emergency?  It’s one thing to strongly encourage people in the interest of the greater good to restrain the usual exercise of their rights.  In an Emergency.  But by definition an Emergency is not a permanent state of affairs. 

How long can rights be denied?  

It cannot be gainsaid, that the virus is serious.  Very serious. But the government is taking many of our liberties and shelving them.  And in the name of it being an Emergency, not a lot of thought is being given to the implications and, importantly, exactly who has the power to take away our rights.  

Questions always need to be asked.  

First, when do we get our rights back and, second, what do we do if they aren’t given back? What if our liberties continue to be constrained for weeks, months, years? And who gets to make decisions on what freedoms we may exercise? 

Are armed confrontations with the government possible if civil unrest is the result?  

God, I hope not.  

But to the Framers, in the context of their world, they understood it might one day be necessary.

Quarantine.

Quarantine.

Cline on the Constitution

Coronavirus Quarantines

With stunning speed our society, the most free in history, has had its meeting places shut down, its stores and products rationed, its children’s schools closed, its churches shuttered, its freedom of movement restricted and its population instructed (indeed ordered) to stay at home and off the public byways.  Even Martial Law is threatened by California’s Governor, an official who has never showed the slightest interest in public safety before.  

Just as stunning has been the citizenry’s almost universal compliance with the government’s interference with basic civil rights. At least so far.

Voluntary compliance with the orders given under Emergency power is one thing, but what of the instances where there is non-compliance?  What of the Constitution?  If a citizen refuses to do what some federal, state, county, or city official tells him to do, does the Constitution still have a role?  Has the Constitution been suspended?  Have the rights enshrined in the Bill of Rights been placed on the shelf to be taken down and dusted off some day when the virus runs its course? 

There have been isolated reports of disobedience.  In Louisiana the police showed up at a church which refused to hold their numbers to the required limits and threatened the pastor with the national guard if he violates the order again.  Gun and ammo sales are forbidden in some locales but took place anyway.  A bar refused to close. Young spring break rowdies partied on in defiance of orders to leave the beaches. 

Rare disobedience.  But what if it becomes more widespread and arrests are made, complaints filed?  

What can a citizen expect from the inevitable collision of the Constitution and the raw power of the government being projected in an Emergency?  

I’ve discussed Emergency Powers under the Constitution in previous posts.  Those discussions centered around the President’s and Congress actions during times of war.  Indeed, actions of the government during an emergency have been a recurring issue since the beginning of our Republic. Examples are many and included the Alien and Sedition Acts of 1798, Lincoln’s suspension of habeas corpus during the Civil War, Roosevelt’s internment of Japanese citizens during WWII. 

As an aside I will make this observation.  Inevitably, once the Emergency has passed there will be reviews, Monday morning quarterbacking, and recriminations.  The reviews will be done in a calm reflective atmosphere in which all the facts, unknown now, will be known and alternatives thoughtfully weighed and balanced.  And how the government should have acted will be judged by academic types who have never had the responsibility to act in an Emergency on anything.  In writing their papers and giving their lectures, they will never have to face the existential question faced by Lincoln when he asked, “Is it possible to lose the nation and yet preserve the constitution?”

What are the powers of the State during an Emergency like the one we are experiencing now?

The enforcement of orders made to stem the spread of the disease is an exercise of a state’s “police power.” The governing principles were adopted in early colonial America from English Common Law.  Those principles recognized there could be a limitation of private rights when needed for the preservation of the common good. 

One clarification: The application of “police powers” in the public health arena is not synonymous with criminal law enforcement. Rather, it is the authority to enforce civil self-protection rules. It is the power of the government, in the current situation, to pass and enforce isolation and quarantines to prevent the spread of disease. 

Historically, the exercise of such power enjoyed strong support from the courts.  The power was only restrained when the government engaged in open disregard for individual rights. To avoid Constitutional limitations the States only had to demonstrate that public health orders like quarantines were intended to further public health objectives. 

Interestingly, the first time the government used the police power in this way occurred after the end of the Revolutionary War, when Philadelphia was isolated to control the threat of Yellow Fever. 

By the time the federal Constitution was drafted, the use of quarantines were already a well-established form of public health enforcement.  The Supreme Court, for its part, consistently ruled that the State had the power to quarantine “to provide for the health of the citizens.” Over the life of the Republic, the uncontrollable nature of epidemic diseases moved the Supreme Court to regularly uphold such extreme measures on the basis of the defense of the common good.

They applied a very loose standards of review.   Generally, the courts invalidated measures only when the degree of restriction of personal liberty was found to be unconscionable.  

In the seminal case of Jacobson v. Massachusetts, the Supreme Court upheld the validity of a quarantine using just such a deferential standard of review. They, in effect adopted a rule that created a presumption of a quarantine’s constitutionality. In effect, the American legal system supported the subordination of individual rights when necessary for the preservation of common good.

However, the treatment by the Supreme Court changed markedly during the two decades beginning in the late 1950s. The Warren Court’s liberal emphasis on individual rights remade the basic tenets of police power.  As has been outlined in previous posts, they laid the foundation for the expansion of rights of an accused, established the right to privacy, abortion and the expansion of many other rights.  And in the area of public health enforcement, the Warren Court, like it did in other areas substituted the traditional deferential treatment of public health actions by the government with a heightened standard of review.  The new standard demanded that the least restrictive limitation to constitutional rights be used to further compelling state interests, and closely scrutinized the exercise of police power for constitutional infractions

The review of quarantine cases moved from a presumption of constitutional validity to the use of Strict Scrutiny test for constitutionality. Strict Scrutiny is the toughest test used by the Supreme Court in reviewing governmental actions that impinge on individual rights and must be passed by the government to meet Constitutionality.  

For example, not only must the government convince the Court there is a compelling need for the action like a quarantine, (Coronavirus certainly meets that), but also the orders are the least restrictive means necessary to justify the State’s action.  Is a blanket quarantine of tens of millions of citizens the narrowest use of the tool?  That might be questionable.  

Also, the Warren Court’s focus on civil rights in turn, led to the extension of the rights to pre-hearing notice, to legal counsel, to confront and cross-examine witnesses, to be committed only by clear and convincing evidence, and to preserve a record on appeal, to any citizen subject to an order of quarantine. 

The Warren Court decisions also affected public health activities such as testing, contact testing, and closing places identified as foci of contagion. 

While we all must do our part to fight the spread of the coronavirus, and that includes following the reasonable instructions of our leaders, it is not a blank check giving up all our rights. 

The Constitution is still there.  And, when challenged, actions of the government must still pass Constitutional muster.

For other writings by Phil Cline, visit philcline.com

Lord Byron and Perfection

Lord Byron and Perfection

Cline on the Constitution

Lord Byron and Perfection

So, what does Lord Gordon Byron have to do with the interpretation of the Constitution?  Well, it’s a stretch. Let’s see if I can get there.

Justice Antonin Scalia said, “The notion has somehow gained currency, . . . that if something is intensely bad, it must be prohibited by the Constitution; or if intensely desirable, it must be required by the Constitution.”

Neither is true. First, the actual Constitution is about governance not what should be or should not be.  And second, in an age of rampant self-righteousness, those who preach about the document’s “imperfections” misapprehend the nature of the document and the Amendment process built into the Constitution 

Most people, when they think of the Constitution, think first of Rights.  And mostly those rights enshrined in the Bill of Rights and later amendments passed after the Civil War.  But the Bill of rights was adopted separately from the Constitution, in fact, ratified by the States a couple of years after the Constitution.  

The original Constitution is not about rights but about governance.  It’s about a structure that delegates the power to get things done but defuses that power to protect against tyranny.  It jealously grants only so much power to the federal government as is felt necessary to the do the job and then splits it between departments of government so they can act as checks on each other.

As Justice Scalia put it:

“ . . . the bill of rights has value only if the other part of the Constitution – the part that really “constitutes” the organs of government – establishes a structure that is likely to preserve, against the irradicable human lust for power, the liberties that the bill of rights expresses. . . . So, while it is entirely appropriate for us Americans to celebrate our wonderful Bill of Rights, we realize (or should realize) that it represents the fruit, and not the roots, of our Constitutional tree.”

He goes on to state “. . . it is those humdrum provisions – the structural, mechanistic portions of the Constitution that pit, in James Madison’s words, “ambition against ambition,” and make it impossible for any element of government to obtain unchecked power- that convert the Bill of Rights from a paper assurance to a living guarantee.”

You can find in the “Constitutions” of the Communist China, and Socialist Russia paeans to individual liberty every bit as inspiring as our own bill of rights.  What you won’t find is a structure prevents the government from taking away those rights at its will and pleasure. 

More and more from those who live to criticize all things American, its culture, its history, its leaders, past and present, you hear the raspy gasps that the Constitution is an imperfect document because it does not meet their own self-deluded modern standards.

It is fatally flawed in their view because it is imperfect when in fact imperfection is the permanent state of mankind and all human affairs. 

Which brings me around to Lord Byron.

A distinguished scholar made this observation about the hangover in despair after the French Revolution 

Of those who invested in the blind belief that the French Revolution would solve all of societies inequities: “ . . . the disappointment that came with the failure of the French Revolution to user in the brotherhood of man and to end the abuses in government and in social and economic life; the disillusionment of those who . . . had hitched their wagons to the star of perfectibility and an idealized human nature and who were forced to resign themselves at last to the sad spectacle of man’s irrationality and imperfection.” 

It was that awakening to the reality of human nature which gave rise to the Romantic hero, the loner who follows his own code despite the corruption and imperfections he encounters everywhere.  Byron’s Don Juan was the earliest version.  The mythic wandering cowboy of the old West and Clint Eastwood’s Dirty Harry Callahan are later-day embodiments.      

The Framers were well-grounded in the history of the French Revolution and the literature and philosophy of the time.  They recognized the imperfection of man and, more importantly, the imperfection in themselves. They knew what they brought forth, though better than what had ever been done before (or since) was not perfect, but it had within it the means to adjust, to revise, to get better, even to experiment. 

Yes, they knew about the flaws regarding slavery.  And, yes a few even regretted that universal suffrage was not on the table, but they knew change was possible and even desirable. They knew neither they nor the instrument they produced could ever be infallible. Something modern day critics can never admit about their own teachings.

In their genius the Framers built into the Constitution a process by which it could be amended.  

Article 5 of the Constitution states, 

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to the Constitution, or on the Application of the Legislatures of two thirds f the several states, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”

Although there are two methods described, only one (that of initiation by Congress) has ever been used. Congress may establish the time frame under which the Amendment may be ratified and has the ultimate authority to decide if in fact was ratified by the States. In 1992 the Twenty Seventh was ratified after 203 years (was part of original twelve amendments proposed and prohibited pay raises for members of Congress during their terms) By contrast the Twenty-Sixth Amendment lowering the voting age to 18 was the fastest adoption of all.

The Constitution is not a perfect document.  However, it is the greatest formulation for the governance of a free society ever put to pen. Debated and drafted by a group of men, who were in the words of Thomas Jefferson, a gathering of demi-gods they made real a vision wider than our modern racial and gender myopia.  They were aborning a nation and sought to build into its fabric a means to insure as much as possible it would defeat attempts to turn its government against the citizens it governed.     

So, no it’s not perfect.  But, Mister, it’s damn good.

(Coming soon, “Evolving Standards? Living Constitution?  That’s what we want? Well, Isn’t it?”  Of course, this assumes I won’t get distracted by more madness on the impeachment front.)

For writings by Phil Cline visit philcline.com

Right to Confront Witnesses

Right to Confront Witnesses

In 1603, Sir Walter Raleigh, one of the most celebrated men of his era, was brought to trial for treason based upon accusations generated by the Spanish Ambassador. The evidence used against him was testimony taken in secret and a letter by an alleged accomplice, a man named Cobham.  Raleigh demanded the witness against him be brought forward so that his motives to lie could be examined in public.  He proclaimed, “Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.”  Raleigh suspected that if the witness was called to the stand before the judges he would recant. Raleigh demanded that the judges require the witness to appear, arguing that “[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face ….”  

His request was refused.  He was convicted, sentenced to death and beheaded.  One of the judges at Raleigh’s trial later said of the proceedings, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”

The injustice of Sir Walter’s case was recalled by Justice Antonin Scalia in Crawford v Washington, a case decided by Supreme Court in 2004, which reversed a conviction because the accused had been denied his right to confront and cross-examine the witnesses against him.  It is the leading case on the Right to Confront and Cross-Examine the Witnesses against you.

As impeachment fever has spread through our body politic, proceedings in Washington remind one of Sir Raleigh’s case.  Secret proceedings and testimony, the use of anonymous informants posing as whistleblowers, denial of the right of cross-examination, documentary evidence hidden from the accused, threats by members of Congress to arrest and hold members of the rival political parties in Cages.  The head spins with the implications.  The procedures employed resemble nothing so much as the Star Chamber, used in Merry Ole’ England to eliminate political opposition.  

As I have written in the past, it is indisputable that our most precious rights, from Freedom of Speech to Freedom of Religion to Due Process are not granted by the Constitution nor given to us by the Bill of Rights. Instead our rights exist apart from those documents, though they are protected by them. To the Framers our rights were given us, not by men, but rather by our Maker.  They are human rights to which everyone is entitled.  Nevertheless, the great men who gave birth to our nation, thought it wise to specify rights requiring special protection.  And that, in turn, enshrines them as universal values in our society.

The Sixth Amendment provides, inter-alia, that “the accused shall enjoy the right to a speedy and public trial, . . . ,and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.”

While legislative actions of Congress are not judicial proceedings once they step outside the legislative role, such as in impeachment proceedings, they are, as Hamilton said in the Federalist Papers, engaging in the nature of a judicial proceeding. There is an indictment procedure, a trial and conviction or acquittal.  And as such questions of Due Process, Right to Counsel, Right to Examine evidence and the Right of Confrontation are very much at issue.  

What we don’t have from past cases or practice is a clear picture of the scope of these rights in impeachment proceedings. I will most likely comment on issues as they arise in the coming weeks and months, but it will be helpful to just address one issue at a time. What is clear is that our values are reflected in respect for concepts such as the Right to Confront the Witnesses.  And if we are to honor or discount them in the coming such values in future proceedings will be meaningful in what we are saying to the public, our fellow citizens, indeed our children who ready or not are going to inherit and be responsible for our way of governing ourselves.

The right to confront one’s accusers is a concept that dates back to Roman times.

A few decades after Sir Walter Raleigh lost his head, the Courts of England accepted the justice of the concept to a civilized society. In 1696, The question was debated at length during infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick’s counsel objected to admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no opportunity to cross-examine.  He said, “[N]o deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him …[O]ur constitution is, that the person shall see his accuser”.

By 1791 (the year the Sixth Amendment was ratified), courts were applying the cross-examination rule even to examinations by justices of the peace in felony cases.

During the debates over the drafting of the Constitution, A prominent writer criticized the use of untested evidence.  “Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question. [W]ritten evidence … [is] almost useless. . . . and very seldom leads to the proper discovery of truth.”

The First Congress responded by including the Confrontation Clause in the proposal that became the Sixth Amendment.

As Scalia proclaimed in the Crawford case, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” The constitutional text, like the history underlying the common-law right of confrontation, “thus reflects an especially acute concern” with an out-of-court statement.

The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.

“Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” 

As we edge ourselves along a dangerous precipice for our nation and our way of governing ourselves, it is well that we be open to how our actions are reflecting our values.  The use of secret proceedings and untested witnesses is dishonorable and has no place in as important a judicial proceeding as Impeachment of a President.