2004-08-06 / Columnists

From the Editor’s Desk

By Howard Schwach


As both a student and teacher of American history, I have great regard for the U.S. Constitution. It is unarguably the greatest document ever written by flawed men to govern other flawed men and women.

As a wise old gentleman once said, however, the Constitution is not a suicide pact.

Let’s take a look at the actual document for a moment.

The First Amendment is the most famous of the original ten – The Bill of Rights.

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s the biggie – the amendment quoted most often by those who want to limit the right of government to safeguard its citizens.

Look at what it says. “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Founding Fathers wanted to insure that citizens had the right to protest the actions of its government by peaceably assembling to petition for a change in the government’s direction. The fact that they inserted the word “peaceably” into the document implies that there had to be a mechanism that government could employ to insure the peaceful aspect of the redress of grievances.

In our case, the New York City Police Department is that mechanism.

Nowhere in the Constitution does it say that people have the right to enter a sensitive zone, such as a public building, a place where government officials are gathering, an event that draws thousands of people, without being checked.

In fact, the Constitution says nothing at all – not one word – about privacy rights. But, you say, you forget the Fourth Amendment.

Let’s take a look at what it says.

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and on warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the places to be searched, and the persons or things to be seized.”

Now, you might say that the Fourth Amendment prohibits the police from searching anybody, nevertheless those protesters entering the protest areas, but the operative word here, I believe, is “reasonable.”

What was reasonable in 1786 is obviously not what is reasonable today. When Federal Judge Robert Sweet wrote his first decision on allowing the NYPD to check the bags of those coming onto the protest area, he was a strict constructionist, saying that the police had to have probable cause for the search of each person as if the information had to come on that specific person and not a general cause.

That has now been modified to allow a more general probable cause.

The American Civil Liberties Union (ACLU) doesn’t like that very much. As the protector of the Constitution, the ACLU’s position is that the police should never search anybody unless the cop has personally seen somebody commit a crime. That is ridiculous.

It would be hard for any reasonable person to argue that the attacks on the World Trade Center, coupled with the more recent threats on New York City and with the success of the terrorists in changing the outcome of the Spanish elections are not a serious probable cause that a terrorist threat could take place in or around the area of the Republican National Convention, particularly with the President and Vice President in attendance.

The ACLU, however, makes that argument, saying that the rights of the protestors would be diminished by being searched for bombs and weapons. It is not a popular argument, except among those who want the Constitution to be a suicide pact.

Making the argument that a strict standard of probable cause must be present for police to act has already impacted life here in Rockaway.

On Saturday night, there were two large parties in Rockaway. The “Function At The Junction,” which is partially sponsored by The Wave, and Family Night at the city housing project called by most, “The 40’s.”

When the two groups mingled, probably more than 1,000 party-goers altogether, there was a recipe for disaster because at least one of those people had a gun and decided to use it indiscriminately on the crowd. Sources say that that he was a gang member, either from the Bloods or the Crips. Others say that it was the same old battle between to local housing projects that precipitated the shooting. Which gang or which housing project the shooter was from hardly mattered, especially to the family of the one man who was killed and the other five, all teenagers, who were wounded.

The question of which group the shooter belongs to matters less than how he got the gun he used to do the shooting.

There was a time, not so long ago, that taking guns off the street was a priority for the NYPD. They had special units that focused on illegal weapons and cops were proactive in taking guns off the street.

That ended when there were some tragic accidents in which innocent people were killed or injured. The ACLU and minority groups screamed about Gestapo tactics and the special units were disbanded.

Cops were told not to search anybody unless they actually saw a weapon on their person.

That is a stupid rule.

I was a teacher for 30 years. I could literally walk into a room and sense that there was going to be a problem, a fight, an argument. It comes with the territory. The same is true of experienced cops. They can tell by a certain walk, by a bulge in a pocket or by a shirt worn loose. They know. At one time, they could stop and search that person and, more often than not, they would find a weapon and that weapon would be taken off the street. To my mind, the cop’s perception is enough probable cause for a search.

That is no longer true and more weapons are on the street than every before. The community wants to be safe, but it does not want cops hassling its young men. It can’t have it both ways. The less that police can be proactive, the more guns there will be on the street and the more incidents such as Saturday’s.

It all goes back to the Constitution. It was written more than 200 years ago by brilliant, albeit flawed men who wanted nothing more than to preserve the new Democracy that it had formed in 1776 and had brought through the crucible of the Revolutionary War. It has been ‘modified” many time by activist Supreme Courts, notably the Warren Court in the 1950’s.

It was never meant to be a document that would allow the nation to be destroyed by a small bunch of religious terrorists and do-gooder’s who cannot see the reality of life.

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