I have often wondered what it was like
when communities were small, and everybody knew
everybody.
This thought occurred to me while I was
driving through Tombstone, Arizona, site of the famous
gunfight. As was reported in the papers of the day (not
television news), the Earps and Doc Holliday were walking
down the street, knowing that the Clantons and Lowery
were at the corral. These factions had been at odds with
each other for years, and on this day there appeared to
be a plan, for as the Earps and Doc walked by the
Clantons, the Earps threw some hateful words out. This,
apparently, did not provoke the desired action, so Doc
pulled his shotgun from under his coat, turned and fired.
The Earps then joined in and only two of the others got
away.
Similarly, here in Waco, one faction,
with color of law, was able to open up on the other in a
devastating gunfight that left 9 dead. The color of law
was sufficient, at least for the time being, to vindicate
the aggressors. In both cases the side with color of law
would have, if circumstances warranted, been given time
off, with pay, while adjudication occurred. The other
side would have been incarcerated until adjudication was
completed. Those with color of law would not be charged
with a crime, but the others would be charged with
serious crimes.
While I was here during the siege I ran
across an interesting piece of Texas law. In the Texas
Penal Code, §9.31 (C), reads as follows:
§9.31 (C) The use of force
to resist arrest or search is justified:
(1) If, before the actor offers any resistance, the peace
officer (or person acting at his direction) uses or
attempts to use greater force than necessary to make the
arrest; and
(2) when and to the degree the actor reasonably believes
the force is immediately necessary to protect himself
against the peace officer's (or other person's) use or
attempted use of greater force than necessary.
There must have been a reason for this
law to have been passed, so I went back and reread the
definition of:
liberty 1. Exemption
from slavery, bondage, imprisonment, or control of
another. 2. Freedom from external restraint or compulsion
(Webster's New Collegiate Dictionary).
LIBERTY Freedom;
exemption from extraneous control. The power of the will
to follow the dictates of its unrestricted choice, and to
direct the external acts of the individual without
restraint, coercion, or control from other persons. (Black's
Law Dictionary - Third Edition)
It appears, then, that the right for
each of us to walk freely, subject to not harming or
injuring another person or his property is the concept of
liberty that the Founding Fathers spoke of, and we have
let our liberty be lost in a myriad of regulation, rule
and control.
What gives a "peace officer"
the right to take a persons liberty, or property?
Obviously the Texas legislators realized that excessive
force could be used, unlawfully, justifying lawful
retaliation. Perhaps they understood human nature and
knew that personal bias might play a part when one
person, operating under color of law, might exceed lawful
exertion of force. Understanding that abuse of power
might occur, isn't it possible that both time and
extension of power might result in "law
enforcement" officers exerting an authority that is
beyond lawful authority?
Wondering how, and why, the scope of
law enforcement may have changed, I began searching
further and ran into an interesting account of a
significant change that came as a result of a major
trauma in the history of the United States of America.
During World War II, especially with the troops being an
occupation army after the armistices, there was a rather
carefree attitude among those who thought they may never
see home again. To control the servicemen the Military
Police had to impose arbitrary authority under the
maritime jurisdiction that all soldiers were subject to.
Meanwhile, back in the states, police officers
approaching retirement during the war tended to stay on
to help out in the war effort. As the MP's began
returning stateside (literally tens of thousands of them)
they began to fill the ranks of local law enforcement,
filing in the gap made by those now retiring. The
attitude of arbitrary enforcement was ingrained in the
returnees, and, although tempered by training as they
joined the local ranks, still became a prevalent attitude
which began a change of servant to master.
I looked further (American's Bulletin,
September 1993) and found an interesting article,
portions of which follow:
This fundamental premise
was upheld by the Supreme court of the United States in
the case of John Bad Elk v. U.S., 177 U.S. 529 (1900)
when the court stated: "...where the officer is
killed in the course of the disorder which naturally
accompanies an attempted arrest that is resisted, the law
looks with very different eyes upon the transaction when
the officer had the right to make the arrest, from what
it does if the officer had no right. What might be murder
in the first case might be nothing more than manslaughter
in the other, or the facts might show that no offense had
been committed.
"an arrest made with a
defective warrant; or one issued without affidavit; or
one that fails to allege a crime is without jurisdiction,
and one who is being arrested may resist arrest and break
away. If the arresting officer is killed by one who is
resisting, the killing will be no more than involuntary
manslaughter.
In reviewing the case we
find that:
"The court charged the
jury: "The deceased, John Kills Back, had been
ordered to arrest the defendant; hence he had a right to
go and make the attempt to arrest the defendant. The
defendant had no right to resist him. .. In this
connection I desire to say to you, gentlemen of the jury,
that the deceased, being an officer of the law, had a
right to be armed, and for the purpose of arresting the
defendant [John Bad Elk] he would have the right to show
his revolver. He would have had the right to use only so
much force as necessary to take his prisoner, and the
fact that he was using no more force than was necessary
to take his prisoner would not be sufficient
justification for the defendant to shoot him and kill
him. The defendant would only be justified in killing the
deceased when you should find that the circumstances
showed that the deceased had so far forgot his duties as
an officer and had gone beyond the force necessary to
arrest the defendant, and was about to kill him or to
inflict great bodily injury upon him, which was not
necessary for the purpose of making the arrest.
The jury, relying on these
instructions, convicted John Bad Elk of murder and the
case went to the higher court on error. The higher court
stated:
"We think the court
clearly erred in charging that the policeman had the
right to arrest the plaintiff [John Bad Elk] in error,
and to use such force as was necessary to accomplish the
arrest, and that the plaintiff had no right to resist it.
"At common law, if a
patty resisted arrest by an officer without a warrant,
and who had no right to arrest him, and if in the course
of resistance the officer was killed, the offence of the
party resisting arrest would be reduced from what would
have been murder, if the officer had the right to arrest,
to manslaughter. .. So we can clearly see that something
has happened that has had the affect of allowing us to be
arrested (lose our liberty) by the design of a law
enforcement officer when the Supreme Court has held that
the officer has no right unless certain procedures
(constitutional protections) are adhered to.
Perhaps we have been led to believe
that law enforcement has superhuman rights. Perhaps the
Founding Fathers, and those that followed recognized that
no special privilege could be granted to normal humans
who took a job that put them at risk. Perhaps arrest
cannot be made, unless by indictment, properly obtained
information or if a serious crime, not minor, is
committed in the presence of the officer, and, perhaps
not even in this last case unless property or lives are
at stake.
As a general rule we have accepted the
fact that we may shoot another person to protect our
lives, property or money. But what is property or money
if not a previous conversion of time. The time exerted to
achieve the money or property surely had value. When
someone attempts to "steal" that time prior to
conversion are we not able to understand that even more
is being taken away than when property is? Just because a
man is wearing a badge gives him no right to take from us
what we would not allow to be taken by someone without a
badge. Why have we come to a point that we accept
authority, such as that which invaded Mt. Carmel Center,
Waco, Texas, without question? However, when the matter
comes to life or death we are willing to protect our
property, by any means necessary, when just the property
jeopardized.
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