Is It Constitutional? Federal Drug Policy: Part 3

“Liberty and order will never be perfectly safe, until a trespass on the constitutional provisions for either, shall be felt with the same keenness that resents an invasion of the dearest rights, until every citizen shall be an Argus to espy, and an Aegeon to avenge, the unhallowed deed.”

“The natural progress of things is for liberty to yield and government to gain ground.”

James Madison and Thomas Jefferson

Liberty is rare and precious gem. It’s a gem that few have possessed and none have kept forever. The United States has called itself home to liberty for a few centuries and even she has not offered liberty to everyone freely throughout these centuries.

One of the key indicators of true liberty is a citizenry that does not have to live in fear of being arbitrarily harassed, detained or worse by her government. This is why a police force in a free country should hold the upmost respect for liberty and its citizenry if it is to truly be a safeguard for liberty. A police force that does not cherish liberty or its citizenry is an enemy of true liberty.

How Does Drug Policy Impact the Federalization of the Police?

I’m going to briefly touch on some of the ways federal drug policy has dramatically expanded federal policing power. However, because there is so much content about each of these topics, I will touch on them here and use entire articles to break each of them down in more detail in future posts.

Federal Police Agencies

When our nation was founded in 1787 under the current Constitution, the creators of the Constitution were careful to leave all crime, crime prevention, policing, and day-to-day lawmaking/enforcing to the states and their local governments. Why? Because they believed that a federal police force was a threat to liberty, much like a standing army. However, the expansion of Congressional power under the commerce clause has dramatically changed this understanding by equipping Congress to write laws on a variety of different issues including, murder, theft, burglary, drug control and more.

The U.S. Constitution refers to only a few crimes which warrant Federal jurisdiction because of their particular threat to the operations of the central government. The constitution relegates the responsibility for 'internal order' to the States. When the U.S. Supreme Court approved Congressional regulation of activities affecting commerce, it sanctioned the most expansive basis for Federal criminal intervention yet invoked. This concept has led to Federal jurisdiction over such crimes as robbery and extortion, loansharking, drug trafficking, and generally any unlawful activity aided by interstate travel.  The most obvious consequence of this expansion of Federal criminal law is the overloading of Federal courts with cases lacking in any direct Federal interest or involvement. It also undermines the dual system of government (Federal-State) envisioned by the Nation's founders (Miner, 1989).

Since Congress is now equipped to write laws on a variety of “criminal” issues, they are also equipped to fund and create federal police agencies to carry out the enforcement of these criminal laws. These agencies include but are not limited to:

Joint Task Forces

Remember in one of my previous articles I said that local law enforcement cannot enforce federal law while federal law enforcement cannot enforce state or local law. Federal drug policy is much broader and more stringent on drug possession, use and trafficking than state laws. But there are not enough federal agents to effectively enforce all of their federal laws; therefore, the federal government came up with the idea of “joining forces” with state and local law enforcement.

According to the DEA’s website:

As drug trafficking increased nationwide, DEA recognized the need for cooperation and coordination of drug enforcement efforts with their state and local counterparts. This cooperation provided several advantages to all participating agencies: DEA was able to draw on the expertise of state of local law enforcement; DEA could share resources with state and local officers, thereby increasing the investigative possibilities available to all; state and local officers could be deputized as federal drug agents, thus extending their jurisdiction; state and local participating agencies could receive an equitable share of forfeited drug proceeds; and DEA could pay overtime and investigative expenses for the state and local agencies.

Joint task forces consist of state and local law enforcement agents, deputized as federal agents and therefore empowered to enforce federal law. State and local law enforcement agencies are incentivized to join these task force teams because of the federal funding and civil asset forfeiture money they are given. One source explains that local law enforcement is able to obtain more funds from the federal government if they say they’ll use the funds against drugs and terrorism. Some of the leading federal departments involved in this are the Department of Homeland Security, and Department of Justice, both offering grant programs for local police to focus on drugs and terrorism.

Initially declared by President Nixon in 1973,(Lynch, 2012) President Reagan re-dedicated the United States to the War on Drugs in 1982 and escalated it using multiple strategies, including increasing anti-drug enforcement spending, creating a federal drug task force, and helping to foster a culture that demonized drug use and drug users.(Benson et al., 1995; Nunn, 2002) Between 1982 and 2007, the number of arrests for drug possession tripled, from approximately 500,000 to 1.5 million,(The Bureau of Justice Statistics of The Federal Bureau of Investigation, 2008) and drug arrests now constitute the largest category of arrests in the US (Lynch, 2012). (Source) 

While drug policy does exist at the state level, it’s the federal government that has used “drug” control to expand its sphere of control into almost every aspect of American lives.

No-Knock Warrants and “Reasonable Suspicion”

The Snell Law Office explains it this way:

The U.S. Supreme Court ruled in 1968 that law enforcement officials can briefly detain someone if they have reasonable suspicion that a crime has been committed, is being committed, or is about to be committed. While this standard relies heavily on the officers’ judgment and much broader than probable cause, it must still be based on existing facts and circumstances – rather than just a hunch or a gut feeling. The main difference between probable cause and reasonable suspicion is that probable cause means there is concrete evidence of a crime and that any reasonable person might suspect criminal activity. In contrast, reasonable suspicion occurs when any reasonable officer might suspect a crime. 

So, how does this change things for the average American citizen in relation to police? It changes things rather drastically. The police can now (unconstitutionally) detain a person to “stop and frisk” them simply because they have some suspicion the person may be guilty of a crime. This suspicion can be rather broad since drugs have been criminalized.

Another source explains it this way:

In the 1968 Terry v Ohio case, the Supreme Court endorsed a new category of police intervention in civilian life.(Saleem, 1997) Previously, police intervention in civilian life had largely been limited to arrests; to arrest a civilian and deprive him or her of liberty, police first had to meet the relatively high standard of probable cause.(Saleem, 1997)3 In Terry v Ohio, the Supreme Court decided that officers could stop a civilian if they reasonably suspected, based on articulable facts, that the civilian was currently engaging in criminal activity or had engaged in criminal activity.(Saleem, 1997) “Reasonable suspicion” is a lower standard for intervention than “probable cause.”(Saleem, 1997) The Supreme Court permitted frisks (i.e., searches of the stopped civilian) if the officer reasonably suspected that the person was armed and dangerous; the frisk was designed to allow the officer to pursue the investigation without fear of violence.(Saleem, 1997)

The following two quotes summarize this issue perfectly:

Returning to the findings from the qualitative study, stops and searches could also involve extensive gratuitous physical and sexual violence. By increasing the frequency of aggressive police/civilian interactions, stop and frisks increase the chances that violence will occur. This chance may be exacerbated if, consonant with the militarization of police departments, police officers have come to see civilians less as civilians they are charged to protect and more as the enemy.(Lynch, 2012; Meeks, 2006; Nunn, 2002) 

In Whren v US (1996) and Illinois v Wardlow (2000), the Supreme Court further lowered the threshold for a police stop.(Barlow & Hickman Barlow, 2002; Nunn, 2002) Whren allowed officers to make “pretext stops,” that is, to stop someone for one violation when the officer’s true suspicion lay elsewhere (e.g., stop an individual for a minor traffic infraction when the officer’s true intent was to search the car for drugs).(Barlow & Hickman Barlow, 2002; Nunn, 2002) In Wardlow, the court expanded the legitimate grounds for a stop by ruling that simply running from a police car was suspicious behavior that justified a police stop and search.(Nunn, 2002)

Finally, no-knock warrants, particularly because of the “reasonable suspicion” of drugs have resulted in an even greater violation of American citizens, their liberties and property. Remember, in America, the Constitution is supposed to prevent government from ever violating the reason it exists–the protection of our private property. The idea that Americans, because of gross misinterpretation of the commerce clause, must live in the fear of an arbitrary power over them, is both horrifying and humbling at the same time.

The quote below gives greater detail:

Where they were once reserved to deal with hostage situations and terrorist attacks, their primary purpose now is to serve warrants for narcotics offenses, often low-level drug possession.(Balko, 2006; Nunn, 2002) SWAT teams are deployed approximately 40,000 times a year in the US.(Balko, 2006) These teams typically serve warrants late at night, when the target and the rest of his/her family/household are sleeping, and enter the home without warning (i.e., “no-knock warrants”).(Balko, 2006) During these nighttime raids, SWAT teams may be heavily armed and use battering rams to enter the home, diversionary grenades, and other urban warfare tactics.(Balko, 2006; Nunn, 2002) While police departments resist releasing data on SWAT team activities, an analysis by the American Civil Liberties Union (ACLU) of the approximately 500 drug-related SWAT team events occurring between 2011–2012 for which they had data identified 7 deaths and 46 injuries.(American Civil Liberties Union, 2014) Notably, drugs were found in just 35% of SWAT drug raids analyzed by the ACLU, indicating that SWAT teams violently invade the homes of many innocent families.

Make no mistake. These are not partisan issues. These are Constitutional and American issues, issues we must all be willing to open our eyes to face.

Civil Asset-Seizure Forfeiture

Civil asset forfeiture is one of the greatest violations of our liberty that I discuss in this article. I will take time to delve into it more in a later article, but here’s a basic definition by findlaw.org.

Unlike criminal asset forfeiture -- a less-common action in which property used or derived from a crime is forfeited only after a conviction for that crime -- civil asset forfeiture usually doesn't require a conviction or even criminal charges. The majority of such forfeitures are related to suspected illicit drug or organized criminal activities. Technically, it involves a lawsuit by the government against the property itself -- or, in legal terms, in rem. As strange as it may seem, the inanimate property (whether it's a yacht or a bag of cash) is the defendant in such a proceeding.

It depends on the jurisdiction, but typically the police (the plaintiffs in such a proceeding) are only required to show that there is a preponderance of the evidence suggesting the seized property was involved in wrongdoing. This is a much lower standard of proof than what's required for a criminal conviction (beyond a reasonable doubt), which is why property is so often seized from individuals who are not convicted of (nor charged with) a crime. Even if the owner of the property is tried for a crime related to the seized property, there's no guarantee they'll get their property back upon acquittal.

Another source explains:

Federal forfeiture law provides law enforcement with a strong monetary interest in asset seizures. Under the Department of Justice’s equitable sharing program, state and local law enforcement that turn over seized property to the federal government can pocket up to 80 percent of the forfeiture proceeds. Additionally, federal law does not require the collection or reporting of data on state, local, or federal seizures.

For example,

A few years ago, Sarah Stillman at “The New Yorker” recounted the ordeal of a couple who cops pulled over for driving in the left lane. The officers searched the car, which was being driven by a Latino man. They found cash that the couple had with them to buy a used car, but no drugs. Nonetheless, the cops and the county district attorney threatened to criminally prosecute the couple and take custody of the woman’s children if they didn’t immediately agree to hand over all their cash.

Here’s another example showing the way police power has been perverted. In this case, police stopped a van transporting legal medicinal marijuana per California law.

This time the cops seized about $350,000. The deputies, who were audibly excited about the $700,000 haul [from a previous stop], were somewhat disappointed by the relatively small size of the second seizure. Based on an audio recording by the van's security system, the lawsuit describes this exchange: "One of the deputies said, 'That's it?' and chuckled. He then said: 'You set the bar too high.' When another deputy remarked that he thought they'd get 'a million or two,' the [first] deputy responded, 'At least we got over a million'"—apparently referring to the combined take from the two seizures. The FBI later told Empyreal's lawyer it had also taken possession of the money seized on December 9, pending federal forfeiture proceedings.

Though the examples are endless, I’ll give one more.

Tim and his friend Blake were traveling to Houston in order to purchase a used car they found online. Since it was an all-cash deal, they were carrying $27,000 in twenty-dollar bills in a shopping bag. But as they got closer to the meeting place, they were stopped by the police for speeding. The officer, noticing a stack of twenties protruding from the bag, asked the men what they were up to. Not believing their story and suggesting they were actually making a drug transaction, he pressured them into handing over the cash. The officer informed the driver that they were heading to a "known drug spot."

Neither of the men were arrested or charged with a crime, but now they're $27,000 short and not sure if they'll ever see their hard-earned money again. 

Civil asset forfeiture laws are carried out primarily by the DEA and the FBI, although other federal agencies use this power as well. Again, from where does this power come? Because it’s certainly not the Constitution.

Military Training, Funding and Materials

Read below:

The Posse Comitatus Act has been dismantled over the past 30 years to advance the War on Drugs. The first challenge to the Act came in 1981, over a century after it was passed, when the military was permitted to give civilian police departments access to military bases, research, and equipment to strengthen these departments’ capacity to wage the War on Drugs.(Balko, 2006; powell & Hershenov, 1990) The military also became empowered to train civilian police departments in using military equipment. Five years later, Reagan declared drugs a national security threat; this declaration sanctioned greater collaboration between the military and police.(Balko, 2006) In 1993, the ban on the US Army’s ability to train police departments in urban warfare and close-quarters combat was lifted.(Balko, 2006; powell & Hershenov, 1990) In 1994, the Department of Defense released a memorandum authorizing the large scale transfer of military equipment and technology to police departments.(Balko, 2006; powell & Hershenov, 1990)

Challenges to The Posse Comitatus Act have led to the rapid growth of SWAT teams in civilian police departments. Only a handful of police departments had SWAT teams in the 1960s and 1970s.(Balko, 2006) By 1997, however, 89% of cities with populations >50,000 had at least one SWAT team, as did 70% of smaller cities.(Kraska & Cabellis, 1997; Kraska & Kappeler, 1997) SWAT teams are heavily armed with military-grade weapons.(Balko, 2006; Kraska & Kappeler, 1997) Between 1995 and 1997 alone, for example, the military transferred 3,800 M-16s, 2,185 M-14s, 73 grenade launchers, and 112 tanks to local police departments and trained police officers in how to use this equipment.(Balko, 2006)

...consonant with the militarization of police departments, police officers have come to see civilians less as civilians they are charged to protect and more as the enemy.(Lynch, 2012; Meeks, 2006; Nunn, 2002) Moreover, when officers regularly treat civilians as enemies, civilians are less likely to comply with their orders, which may in turn further amplify violence.(Hinkle & Weisburd, 2008) Physical violence reported by participants in [a] qualitative study [in New York] ranged from gratuitous kicks to beatings that broke ribs and teeth. Men who injected drugs reported the most extensive and frequent physical violence. Testifying to the questionable use of police force in these cases, none of the participants who described being beaten was arrested.

Participants in the qualitative study also experienced police-instigated sexual violence. Sexual violence arose in part out of an adaptive dynamic between officers and drug users. In response to the constant threat of a stop and frisk, drug users began storing drugs inside their underwear and inside their bodies, including in their rectums; officers in turn began to search civilians’ undergarments and rectums during stop and frisks in their effort to locate drugs. These extensive searches were humiliating for participants, particularly when they happened in public spaces where passersby could witness them.

Conclusion

I just unloaded a lot on you, I know. My hope is that this has left you reeling and hungry for more. Because friends, the destruction of liberty is not a joke and we can’t act like it is. Our government has gotten away with egregious violations of the Constitution for far too long simply because we aren’t aware of what it’s doing. Don’t forget where this comes from: the Supreme Court’s expansion of the commerce clause.

The time is now. Too much is at stake in the world and in our nation and the first step to defending liberty is to first know what we’re defending her from.

The Liberty Belle