By John W. Whitehead
“A person should feel secure in their own home. No matter black, white, Hispanic, Asian, I don’t care who they are, they should feel secure in their own home. The police have no right to come in your house and push you around and beat you up and do the things they did on March, 15, 2009.”—Ryan Deaton, defense attorney for Marco Sauceda
Too often, we elevate the events of the American Revolution to near-mythic status and forget that the real revolutionaries were neither agitators nor hotheads, neither looking for trouble nor trying to start a fight. Rather, they were people just like you and me, simply trying to make it from one day to another, a task that was increasingly difficult as Britain’s rule became more and more oppressive.
Caught up in the drama of Red Coats marching, muskets exploding and flags waving in the night, we lose sight of the enduring significance of the Revolution and what makes it relevant to our world today. Yet the American Revolution did not so much start with a bang as with a whimper—a literal cry for relief from people groaning under the weight of an oppressive government’s demands.
America was born during a time of martial law, when government troops stationed themselves in homes and trespassed on property without regard for the rights of owners. Prior to the American Revolution, there was virtually no right to be secure against unreasonable searches and seizures. During colonial times, British judges issued “writs of assistance,” or general search warrants, which allowed police officers to enter any place upon demand. All that was needed for a judge to issue the warrant was an officer’s assertion of a mere suspicion of illegal activity.
As a consequence, British soldiers entered homes and places of business, virtually at will. As time went by, these general warrants were used with increasing frequency. The effects on the American people were devastating and long-lasting. As one colonist wrote, “our houses, and even our bedchambers, are exposed to be ransacked, our boxes, trunks, and chests broke open, ravaged and plundered by wretches whom no prudent man would venture to employ even as menial servants.”
Fast forward more than 200 years and we seem to have come full circle, once again being victimized by government agents that show little regard for our property or our persons. Indeed, if you want to get a sense of what “justice” in America has been reduced to, just consider the case of 30-year-old Marco Sauceda, who was recently sentenced to serve 30 days in jail and pay a $500 fine for resisting arrest after police mistook him for a burglar in his own home. Sauceda also suffered a gash to the top of his head that required medical attention.
Police entered Sauceda’s home at 111 Finley St. in Lufkin, Texas, on March 15, 2009, allegedly after a neighbor reported seeing a black man kicking in the front door. Obviously frightened, Sauceda, a Honduran immigrant who speaks no English and has the mind of a child, barricaded himself in his bathroom in response to the police invasion. When police did finally get Sauceda out of the bathroom, they pepper-sprayed him, shot him with a pepper ball gun and wrestled him to the ground. Throughout the ordeal, a terrified Sauceda remained silent.
Anyone with an ounce of sense would recognize that there’s something wrong when an innocent man with the mental acuity of a child is not only subjected to a warrantless invasion of his home by police officers but is physically brutalized by those same government agents and then forced to serve time for resisting arrest. And in fact, the jurors in Sauceda’s case did recognize that he had been wronged, but other than asking the judge for leniency in sentencing, they did nothing to right that wrong—they rendered him guilty. The judge was no better, going so far as to suggest that the unarmed Sauceda should have been sentenced to six months in jail for, believe it or not, putting the police officers—who were armed to the teeth, no doubt—in harm’s way.
This case, one that has not garnered major headlines or incited populist outrage, especially because it involves an immigrant—and an illegal one at that, although neither the police nor the jury were aware of his status—nevertheless highlights everything that is wrong with the so-called criminal justice system in America, a system lacking in true justice, whose shortcomings are more often condoned by the judiciary than set right.
For those who will immediately insist that non-citizens have no rights under the Constitution, the U.S. Supreme Court has made clear that the Constitution applies not just to citizens but to all persons residing in the United States. Thus, illegal or not, Sauceda is entitled to equal protection under the law as are all persons within the United States.
Unfortunately, those protections, such that they are, are being steadily eroded by legislation and court rulings that render the individual completely defenseless against the encroachments of the state. In a very real sense, we truly are back to where we started in those pre-Revolutionary War days, seemingly having learned next to nothing from those early days of tyranny at the hands of the British crown.
We are once again being subjected to broad search warrants, government agents trespassing on property without regard for the rights of owners and the blurring of all distinctions—for purposes of searches and seizures—between what is private and public property. Once again, the courts and state legislatures are seen to favor the interests of government officials, especially law enforcement, even if it comes at the expense of civil liberties. Indeed, there is no true justice in a court system where the judge, the prosecutor and the police form a triad against the accused. And once again, Americans are finding themselves underrepresented, overtaxed and forced at gunpoint, practically, to dance to the government’s tune. The similarities to pre-Revolutionary America are startling.
For example, since the time of the nation’s founding, Americans’ homes have been their most important physical possession. The colonists took to heart eighteenth century British Prime Minister William Pitt’s sentiment: “Every man’s home is his castle.” The Third Amendment addressed the Framers’ particular grievance with the Quartering Act of 1774, a policy that forced the colonists to provide accommodations for British troops in their homes at night, while these same soldiers terrorized their towns by day. This constant invasion of the colonists’ privacy by the British soldiers was condemned in the Declaration of Independence and was ultimately outlawed by the Third Amendment.
People often question whether the Third Amendment, which says our homes are off limits to the military, is germane to our lives today. Although it is true that Americans’ homes have generally been safe from government agents since the Revolutionary War and the military may not threaten private property per se, the right to keep the government out of our homes is an important safeguard against government abuse. It also reinforces the principle that civilian authority is superior to the military and paramilitary police units such as SWAT teams.
Unfortunately, in May 2011, the Indiana Supreme Court broadly ruled in Barnes v. State that people don’t have the right to resist police officers who enter their homes illegally. The court rationalized their 3-2 ruling legitimizing any unlawful police entry into a home as a “public policy” decision. On its face, the case itself is relatively straightforward: An Indiana woman called 911 during an argument with her husband. When the police arrived, the man blocked and then shoved an officer who tried to enter his home without a warrant. Despite the fact that the wife told police her husband hadn’t hit her, the man was shocked with a stun gun and arrested. Insisting that it would be safer for all concerned to let police proceed even with an illegal action and sort it out later in court with a civil lawsuit, the court held that residents can’t resist police who enter their home—whatever the reason. The problem, of course, is that anything short of complete and utter acquiescence and compliance constitutes resistance. Thus, even the supposedly protected act of free speech—a simple “Wait, this is my home. What’s this about?”—constitutes resistance.
Added to that, recently the U.S. Supreme Court effectively decimated the Fourth Amendment in an 8-1 ruling in Kentucky v. King by giving police more leeway to smash down doors of homes or apartments without a warrant when in search of illegal drugs which they suspect might be destroyed if the Fourth Amendment requirement of a warrant were followed. In this particular case, police officers in pursuit of a suspect they had seen engage in a drug deal in a parking lot followed him into an apartment complex. Once there, the police followed the smell of burning marijuana to an apartment where, after knocking and announcing themselves, they promptly kicked the door in—allegedly on the pretext that evidence of drugs might be destroyed. Despite the fact that it turned out to be the wrong suspect, the wrong apartment and a violation of every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered. Yet as Justice Ruth Bader Ginsburg, the lone voice of dissent among the justices, remarked, “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and … forcibly enter?”
The Fourth Amendment, which provides that the people have a right to be secure in their persons and property against unreasonable searches and seizures, arose out of colonial experiences as well. It also states that valid warrants require “probable cause” and a particular description of the place to be searched and the persons or objects to be seized. Unfortunately, increasing numbers of state laws—including the one used to convict Marco Sauceda—make it illegal to resist a law enforcement official in any way, leaving Americans virtually helpless in the face of a wrongful arrest and reliant on the courts to right the wrong. As to the need for probable cause in issuing warrants, that bar has been greatly lowered by a succession of court rulings to such an extent that there is virtually nothing to stop the police from entering one’s home based on the mere suspicion of wrongdoing by a police officer.
As government invariably oversteps its authority, Americans are faced with the pressing need to maintain the Constitution’s checks against governmental power and abuse. After all, it was not idle rhetoric that prompted the framers of the Constitution to begin with the words “We the people.”
We must remember that our freedoms were created with extraordinary care and foresight, but they were not meant simply for the moment. Our precious liberties were to be passed on to our descendants indefinitely. As the Preamble to the Constitution declares, the Constitution was drafted to “secure the blessings of liberty to ourselves and our posterity.” Formally adopted on September 17, 1787, it has long served as the bulwark of American freedom. And we the citizens are entrusted as guardians of those freedoms. When we shirk that duty, we leave ourselves wide open for an authoritarian regime to rise to power, place restrictions on our freedoms and usurp our right to govern ourselves.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at www.amazon.com. He can be contacted at firstname.lastname@example.org. Information about The Rutherford Institute is available at www.rutherford.org
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