The Federalist Blog

Updated 3/1/07

Just when I thought I had seen and heard it all, comes the case Scott v. Harris. The case involves Coweta County Deputy Sheriff Timothy Scott’s decision in 2001 to end a wild, high-speed chase over dark and wet Georgia highways by finally ramming the back of Victor Harris’ Cadillac, sending him down an embankment and flipping his car. Harris, then 19, was left a quadriplegic and has sued, claiming it was a violation of his constitutional rights for Scott to take such drastic action.

His constitutional what?

Here is the question’s presented to the court, for which the love of me cannot understand why such lousy and demonstrable false precedent is still adhered to justify hearing such a case:

• 1. Whether a law enforcement officer’s conduct is “objectively reasonable” under the Fourth Amendment when the officer make a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect’s vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death.

• 2. Whether, at the time of the incident, the law was “clearly established” when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight.

There is literally no Fourth Amendment issue under the federal Constitution because it had been strongly established by the court and the framers of the fourteenth amendment to not apply to anyone other than the Federal Government. It might under GA Constitution or local laws, but no way under any stretch of federal jurisdiction.

The framer of the Fourteenth Amendment’s first section, John Bingham, was clear and dead serious when he said over and over that those privileges and immunities are only those found under article 4, section 2 as they had always existed, and not the bill of rights. He officially stated in January of 1871 that the privileges and immunities incorporated nothing other than they had before the fourteenth.

The Fifth Amendment’s due process was incorporated, nothing else. Only courts administer due process through the administration of justice, not law enforcement agencies or officers, and further, search and seizures under the Fourth is not a function of the court in administering justice. In other words, you cannot use due process to impose a duty on anyone where that duty was never imposed upon them by the Constitution.

For search and seizures to be considered “unreasonable” under the concept of the terms under the Fourth Amendment, the search and seizure must had been conducted outside of the sanction of law. In other words, the act of search and seizure under any manner is not itself an issue, but whether existing law sanctions such acts.

Moreover, the court is attempting to cross a line into the police affairs of local government for which no such right had ever been surrendered to them to cross. Let us consider what the framers of the Fourteenth Amendment felt about the Federal Government disturbing local police powers.

Sen. John Sherman (OH) proposed an amendment (known as the Sherman Amendment) to enforce the Fourteenth Amendment in the year 1871. What Sherman proposed was to punish and bring private conduct within counties and cities of a State, under federal jurisdiction. The same House who adopted the Fourteenth Amendment overwhelmingly rejected it by 140 to 30.

Austin Blair (MI), a strong Fourteenth Amendment defender, and human rights activist, had this to say about the proposal on April 19, 1871:

They [States] create these municipalities; they say what their powers shall be. If the Government of the United States can step in and add to those obligations, may it destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, I ask gentlemen to tell me where its power will stop and what obligations it might not lay upon a municipality.

If gentlemen say that the powers of the General and State governments for the protection of life, liberty, and property are concurrent and that we can go everywhere throughout the United States and do by the General Government everything that can be done by any State government, then I grant this power might exist; but until I am shown that, I am unable to see it. As I have said, I have always supposed that there were certain powers and certain rights that belong to the States that the General Government has no right to interfere with. This right of local self-government, as I supposed, it was not the intention of the Constitution of the United States in any case to take away from the States, and I cannot see how it is possible that this power could exist without taking it away.

Sen. Frederick T. Frelinghuysen, said: “I submit that the police regulations of towns and counties are exclusively with the towns and counties, and they have in no manner forfeited to the Federal Government to make those police regulations.”

Sen. Lyman Trumbull, chairman of the Senate Judiciary said: “I am not willing to undertake to enter the States for the purpose of punishing individual offenses against their authority committed by one citizen against the other. We, in my judgment, have no constitutional authority to do that. When this government was formed, the general rights of person and property were left to be protected by the States, and there they are left today.”

Trumbull further added: “I do not know where in the Government of the United States gets the constitutional authority to go into the States and establish police regulations.” Bingham, under limited floor time, quickly questioned how the Federal Government could guarantee to the States a republican form of government while at the same time denying local government the right to govern themselves:

Mr. Speaker, how can States exist, how can you enforce the provisions of the Constitution of the United States as to States, if you will not maintain the corporate organizations of the several States? There can no more be a State under the Constitution and laws of the several States of this Union without the corporate organizations of counties or parishes therein than can be a United States under the Constitution of the United States without organized States; because the counties in the several States are integral parts of the States, just as the States of the Union are integral parts of the nation. If you destroy either you, destroy the whole fabric.

George Hoar added: “I do not favor interference in any degree by the national government with the local administration.” Luke Poland (former VT Supreme Court Justice) continues the assault on the notion the Federal Government is empowered to interfere with the local administration of justice:

[I] cannot agree with several gentlemen upon my (Republican) side of the House who insists that if the State authorities fail to punish crime committed in the State therefore the United States may step in and by a law of Congress provide for punishing that offense; I do not agree with those gentlemen.

James Garfield joined the chorus attacking the Sherman Amendment:

These systems of local government by counties and cities are adopted by the States as instrumentalities to aid them in the wise and judicious regulation and protection of the local and domestic interests of their citizens. It will never do to say that they may be tampered with, impeded, or arrested in the discharge of their duties, as this bill proposes. It would be fatal to the success and very existence of local self-government. It has many times been solemnly decided by the Supreme Court that these agencies adopted by the States to aid in local administration are above the touch or control of any power, are subject only to the exclusive regulation of the States.

John Farnsworth attacked the amendment this way:

The Supreme Court of the United States has decided repeatedly that the Congress can impose no duty on a State officer. We can impose no duty on a sheriff or any other officer of a county or city. We cannot require the sheriff to read the riot act or call out the posse comitatus (sic) or perform any other act or duty. Nor can Congress confer any power or impose any duty upon the county or city. Can we then impose on a county or other State municipality liability where we cannot require a duty? I think not.

Jefferson wrote from Monticello on June 12, 1823: “Can it be believed that under the jealousies prevailing against the General Government at the adoption of the Constitution, the States meant to surrender the authority of preserving order, of enforcing moral duties, and restraining vice, within their own territory?”

The court in The City of New York v. Miln, 11 Peters, 102, perhaps sums up the principle involved best: “All those powers which relate to merely municipal legislation, or which may be properly called internal police, are not surrendered (by the States) or restrained, and consequently in relation to those the authority of a State is complete, unqualified, and exclusive.“

The truth is nothing had been surrendered by the States to the Federal Government over local police matters. Both Congress and the Federal courts have been given no authority to legislate or oversight into the affairs of persons within State jurisdiction except under two very narrow conditions that no law enforcement officer could possibly violate.

The Supreme Court is well aware of these facts, but they continue holding onto their bogus precedent in order to invade a domain they cannot justify invading any other way. To say that today’s federal judiciary is in severe crisis would be an understatement. Let us hope they can find their way back into the light to restore dignity to the federal judiciary.