Gun Owners of AmericaH.R. 666 and the Assault on the Bill of RightsSat Sep 22, 2007 23:38H.R. 666 and the Assault on the Bill of Rights
Gun Owners of America
Summary: On February 8, 1995, the House of Representatives passed H.R. 666 by a vote of 289-142. This bill, along with its companion S. 54, will allow evidence seized from otherwise illegal searches to be included in a trial if the officers can show an "objectively reasonable belief" that they were acting in "good faith." (Another bill, S. 3, is much more liberal in allowing illegally obtained evidence to be included at trial. That is, the bill does not require that the evidence must be obtained in "good faith.") (1)
Supporters of this legislation claim that too many criminals are slipping through "loopholes" in the Fourth Amendment; that too many crooks are getting off on technicalities. But government studies show that the exclusionary rule affects less than one percent of criminals.
The question is, should we sacrifice the security of all law-abiding citizens because less than one percent of the criminals may inadvertently benefit? H.R. 666 and its Senate counterparts could easily encourage the harassment of law-abiding citizens by removing the incentives for officers to secure a warrant. Moreover, this legislation would affect decent people, as even Congressmen have been found to have illegal evidence -- such as "illegal" guns -- in their possession.
Removing incentives to secure a warrant
H.R. 666, S. 3 and S. 54 will remove the deterrents which prevent officers from conducting warrantless searches. Two of the bills (H.R. 666 and S. 54) allow an officer to violate the Fourth Amendment if the officer has an "objectively reasonable belief" that he is acting in "good faith." Some claim that this "objective" standard will allow judges to easily determine whether officers acted properly or not.
The problem is that in many cases, it will be impossible to verify what the officer's "objective belief" really was, and the test will in fact become quite subjective. Rep. Lincoln Diaz-Balart (R-FL), speaking in favor of this legislation, said that under H.R. 666 the defendant will have the burden of proving that the law enforcement officer "could not have reasonably believed that he was acting in conformity with the fourth amendment." (2)
Notice that the defendant will have the burden of trying to prove what the law enforcement officer "believed"! Officers can easily concoct "objective" reasons after the fact to justify an illegal search.3 The defense then has to prove that the officer actually knew he was not acting properly; they will have to delve into the officer's mind and show what he was really thinking.
Currently, one protection afforded by the "exclusionary rule" is that evidence seized during an illegal search will be excluded from trial. But under H.R. 666 and S. 54, evidence seized from an otherwise illegal search could be introduced in a trial if the officers can show they were acting in "good faith." In essence, officers could easily find something to justify their actions after the fact.
The BATF is notorious for doing this already. (4)
In June of 1971, four BATF officers burst into the home of Ken Ballew. The tragic events which followed show clearly how renegade officers will always try to justify their actions after brutalizing the innocent. Rep. John Dingell (D-MI) explained on the House floor what happened:
"BATF first entered an apartment upstairs where they held a shotgun at the head of some 8-year-old children. When they found they had raided the wrong place, they then went downstairs, and they broke through a back door in the man's home. . . . They seized the man's wife and threw her into the hall in only her underpants. Mr. Ballew was coming out of the shower with a cap and ball revolver seeking to defend his home and his wife against a noisy band of intruders who bore no indicia of their service as law enforcement officers." (5)
The result? BATF officers shot Mr. Ballew in the head. If he is still alive today, he is disabled and still partially paralyzed, incapable of speech -- and unlike Jim Brady, he has never been available for Congressional testimony.
After the assault, the officers quickly began justifying their actions. Dingell explains:
"They [the BATF officers] went outside, still dressed as hippies with beards and in scruffy clothes, and at which time they first put on their BATF armbands to show that they were law enforcement officers engaged in proper exercise of their legal authority, and that they had given proper warning to the individual of their authority which, in fact, they had not." (6)
The officers immediately tried to justify their actions. And while Mr. Ballew did not have illegal evidence, this case clearly demonstrates how officers will always want to justify their actions. It's human nature. At times, they may even be willing to lie.
"Indeed, the [Ballew raid] was classed as a training exercise," Rep. Dingell explained. "This whole unfortunate matter was covered up under the aegis of Mr. Connelly, the then-Secretary of the Treasury." (7)
H.R. 666 and S. 54 will encourage cover ups. They will encourage warrantless searches and seizures, and the subsequent justification of actions. If this legislation becomes law, officers may find it's much easier to justify their actions after they've collected substantial evidence from an innocent victim, rather than demonstrating ahead of time to a judge that they have probable cause.
(Under S. 3, officers will not even have to justify their actions. This bill will allow illegally obtained evidence to be introduced at trial, even if the officers knew they were acting improperly.) (8)
What if "illegal" evidence had been found in Mr. Ballew's apartment? Would that mean that Mr. Ballew -- an otherwise law-abiding, decent person -- was in reality a violent thug? Hardly. Would, say, an "illegal" handgun found in his apartment have justified the treatment that Mr. Ballew received? Never. But could the BATF have invented reasons after the fact to "show" their raid was executed in good faith? Probably.
Fourth Amendment helps protect the Second Amendment
Some have claimed that honest people -- like Mr. Ballew -- would never have illegal evidence in their possession. These folks argue that this reform measure only seeks to stop criminals from getting off on technicalities; that honest people will never have illegal evidence that needs to be suppressed.
In the first place, the Fourth Amendment (and the exclusionary rule) were not designed to protect the guilty, they were intended to protect the innocent from invasion by renegade officials.
(The exclusionary rule says that illegally obtained evidence cannot be introduced at trial. While the exclusionary rule is not technically a part of the Fourth Amendment, advocates point out that it has historically been the best way to enforce the guarantees which protect honest citizens in their "persons, houses, papers, and effects." The exclusionary rule is one of the best deterrents against government abuse. In essence, one could view the exclusionary rule as that which puts teeth into the Fourth Amendment guarantees.) (9)
The exclusionary rule protects every law-abiding American by strongly encouraging police officers to conduct proper searches. If they do not follow procedures -- obtaining valid search warrants, etc. -- officers risk the possibility of the court suppressing the evidence which they obtained illegally.
Does the exclusionary rule just let criminals go free? No. Government studies have found that only a small percentage of persons arrested for felonies (less than one percent) ever benefit from having evidence suppressed because it was obtained illegally. (10)
On the other hand, there are countless numbers of cases where the police did not undertake an illegal search because the exclusionary rule discouraged them from doing so. As a result, millions of Americans have enjoyed the protection of both the exclusionary rule and the Fourth Amendment.
The question is, should we sacrifice the security of all law-abiding citizens because less than one percent of the criminals may inadvertently benefit? And even more basic, will giving officers broader powers to conduct -- what would otherwise be -- illegal searches even affect the average person? After all, would any decent, law-abiding person ever be in possession of illegal evidence? The answer might not be so obvious.
H.R. 666, S. 3 and S. 54 will lead to harassing of law-abiding gun owners
Many Americans are in possession of guns, that while protected by the Second Amendment, are "illegal" because of local anti-gun laws. Even Congressmen have been known to run afoul of the law because they owned such "illegal" evidence.
Rep. Maurice Hinchey (D-NY) was caught illegally carrying a handgun in Northern Virginia in 1994. (11) Fortunately for him, he was not caught near his home in the District where the handgun is illegal and would have netted Mr. Hinchey a much more serious penalty.
Also in 1994, The Washington Times reported that Sen. Jay Rockefeller (D-WV) owned one of the rifles covered by the "assault weapons" ban. The gun, which was reportedly located at Sen. Rockefeller's D.C. home, is illegal under D.C. law. (12)
And then there are several well-known cases from the private sector. For example, Carl Rowan and Bernard Goetz are decent and upstanding citizens. Both exercised their constitutional right to protect themselves, and in doing so, both were caught with "illegal" evidence.
Carl Rowan used an unregistered handgun to shoot a trespasser in his backyard. The 1988 shooting occurred in Washington, D.C. where such firearms are strictly controlled. And Bernard Goetz used an "illegal" handgun to shoot several attackers on a New York City subway in 1984. A jury acquitted Goetz on assault charges, ruling that he acted in self-defense. Nevertheless, he was convicted of possessing an "illegal" firearm and sent to jail.
Another innocent victim is Wanda Boley of Northern Virginia. Boley is a teacher who began carrying a firearm in her car after she had been threatened by a car-full of punks several years ago. Virginia law allows one to carry a gun in one's car, as long as the gun is kept in plain view. So Boley was careful to obey the law, and she began keeping a gun in plain view at all times.
But little did she know that Congress had passed the School Zones Safety Act in 1990. As a result, every time she drove her car to work, she was committing a felony. One day while Boley was teaching, a passerby saw the gun in her car, which of course was still in plain view. The passerby called the authorities and Boley was arrested during the middle of class. (13)
Boley was not a criminal. She was not violent. She was a decent person who was trying to obey the law. But not having kept up with the tremendous number of unconstitutional changes in the law, she was caught with "illegal" evidence.
Another lady who ran afoul of the law is one whom newspapers will only identify as "Becky." Becky lives in Washington, D.C. and owns an unregistered firearm, which she used to defend her family in December, 1994. (14)
After two thugs entered Becky's home, they began preparing to burn the house. They were armed with knives and had already tied up one of her daughters with (duct tape). As one of the intruders charged Becky, she grabbed her gun and shot him. The other fled -- that being the good news. The bad news is that Becky was in possession of an illegal gun and District officials could decide to prosecute her.
Carl Rowan, Bernard Goetz, Wanda Boley and Becky -- all decent people who were exercising their constitutional right to protect themselves. If any of them had been subject to warrantless searches before they used their guns for self-defense, officers would have found a gold-mine of "illegal evidence." But were these people really criminals? Hardly.
And yet, H.R. 666, S. 3 and S. 54 give a green light to anti-gun officials who want to harass law-abiding gun owners. In the name of getting tough on crime, constitutional protections will be thrown out the window and otherwise honest citizens can be persecuted by their government.
Congress should curtail, not encourage, warrantless searches
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