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Chuck Klein © 2022
Published in the Summer 2022, THE CHIEF OF POLICE magazine,
the Official Publication of The National Association of Chiefs of Police.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. U.S. Constitution, 9th Amendment
Enumeration: List of rights.
Certain: Fixed, settled.
Rights: That which a person has a just claim to.
Shall: Mandatory, must be done.
Construed: Interpreted.
Deny: To refuse to accept the existence, truth or validity thereof.
Disparage: To lower in rank, reputation, depreciate, tamper.
Others: The rights not listed in the Constitution as opposed to the certain rights that are listed. These other rights are the inalienable rights that include, but are not limited to: The right to be presumed innocent until proven guilty; The right to protect oneself, property and family; The right of inheritance and bequeathal, to be treated equally before the law … self-evident truths such as “life, liberty and the pursuit of happiness.”
Retained: To keep in possession, to hold secure or intact.
People: Human beings - the citizens of the United States of America.
PREFACE
There are two issues, Duty and Power, that have come to light in the recent case (1) (2) against the now ex-Minneapolis Police Officers, Tou Thao and J Alexander Kueng (George Floyd matter) (3). The first is basic to policing, per se. The second topic concerns the judicial system.
HISTORY
A police force is not a democracy; sworn officers do not have the right to vote on how to proceed during any official detail involving the public. LE is a quasi-military organization inasmuch as there is a hard chain of command – as opposed to a soft chain found in civil or other public institutes. MPD patrol officers, Thao and Kueng, witnessed their sergeant (Derek Chauvin) wrestle a violent, resisting arrestee (George Floyd) to the ground and further observed the sergeant place his knee on Floyd’s neck until Floyd died. As a result of these actions/inactions Chauvin was tried and convicted of a crime (see Part I of this series for a different view) and the subordinate officers were also tried and convicted in court. The prosecution alleged that Thao and/or Kueng violated Floyd’s Constitutional rights and should have intervened if they had knowledge (unsubstantiated evidence) that the on-scene, ranking officer was using the ambiguous term: unreasonable force.
The judicial system that fostered the convictions of Thao and Kueng is based on (mis)interpretations and direct and indirect denials and disparages of our Constitution.
DUTY
The question here concerns what, if anything, a police officer is required (has a duty or legal obligation) to do when faced with the question of whether or not to take action against (interfere with) the acts of a superior officer during a lawful arrest. The implied Constitutional reference is to the 5th and 14th Amendments, neither of which requires a LEO or anyone to intervene for the benefit of another. The word unreasonable, or any such language, also does not appear in these Amendments of which the relevant portions read (with annotation):
“…no person…shall be deprived of life without due process of law;.…” Only MPD Sgt. Chauvin was denying George Floyd the right to life.
“…nor deny to any person within its jurisdiction the equal protection of the laws.” States could not make and enforce laws that treated persons (even if they were not U.S. citizens) differently. If officers Thao and/or Kueng had intervened in similar situations or were acting in contravention to department rules specifically requiring intervention against a superior officer, that would constitute depravation.
Suppose a private in the military over-hears his commanding officer ordering an attack that the private believes to be unreasonable. Should the private shoot the CO if the CO fails to heed the private’s warning? How ‘bout if a Secret Service agent believes his CO (POTUS) is about to issue unreasonable orders to send troops….
The relevant portions of the statute for which Thao and Kueng are charged (emphasis added):
18 U.S.C.A. § 242. Deprivation of rights under color of law. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, ... the deprivation of any rights, … secured or protected by the Constitution or laws of the United States, …on account of such person being an alien, or by reason of his color, or race … shall be fined under this title, or imprisoned…. [emphasis added] (4)
Nowhere in the indictment, charge to the jury or trial evidence, does the prosecution allege that Thao or Kueng used any racial slur or in any way exhibited or spoke any words referencing the race, color or alien status of Floyd. Therefore, this statute ONLY applies if the defendant was depriving another due to that person’s race, color or alien status. America is not a commonwealth; we are a statutory nation insofar as it can only be a crime if there is a specific law to which someone can be held accountable and that law incorporates a punishment provision. Citizens cannot be convicted of violating a Constitutional article or amendment unless that section spells out an articulated punishment (civil accountability is held to a different standard).
In the charge to the jury at the conclusion of this criminal trial of ex-Minneapolis LEOs, Tou Thao and J Alexander Kueng, the judge told the jury: (5)
“...defendant[s] violated Mr. Floyd’s right to be free from a police officer’s use of unreasonable force…” If the force became unreasonable it only did so upon Floyd’s death.
“…that the defendant had the opportunity… [to intervene]” If a subordinate officer intervenes with a lawful arrest by the senior officer, this junior officer will surely face disciplinary action including termination.
“…and [had] means to intervene…” If the senior officer does not heed this warning, the prosecution alleged the junior officer’s duty is to use his/her power to intervene, i.e., physically assault his superior. Such physical force will surely cause termination and felony charges of assaulting a police officer to be filed against the subordinate officer.
“…to stop the unreasonable force;” There is no statute, law or Constitutional mandate for a police officer to interfere with a superior officer’s course of action. It is clear that the subject patrol officers were not indicted for a violation of a statute that makes it a crime to fail to take action (intervene) UNLESS race, color or alien status is alleged.
SUMMARY:
Though a LEO takes an oath to protect lives and property, the point at which another’s life or property is in jeopardy is not only subjective, but relevant to the consequences the officer faces. Were the officers wrong not to intervene? Probably. Would they have been wrong if they had intervened? Probably. Either way they will suffer irreparable harm – a violation of their Constitutional rights. Unless race, color or alien status is a criterion, failing to intervene is not a crime whereas assaulting a police officer is a felony.
SOLUTION:
While the higher courts review the convictions of Thao and Kueng our federal legislators might be encouraged to push for a federal statute with wording to the effect: It shall be in violation of Federal Law for a prosecuting attorney to charge any person with a crime for which all of the elements of the crime are not present. One convicted under this statute shall be fined $____ or imprisoned not more than _______ years, or both.
POWER
The following Instructions (charge) to the Jury is taken directly from the federal case (6) against the ex-MPD LEOs, Thao and Kueng, who were charged with violating 18 U.S.C.A. § 242 Deprivation of rights under color of law (7). In effectively all criminal jury trials, the presiding judge will read the below (or words to that effect) to “charge the jury”. (8)
“It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.”
Here, the trial judge ordered the jurors to accept his definition, meaning and application of the law and regardless of what the jurors believe to be in concert to the Constitution, they must follow his directives. This is a direct infringement of the defendant’s rights under the 6th Amendment to the Constitution, which states:
“In all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury….”
An impartial jury means one made up of openminded and unbiased citizens – not corrupted by undue influence, bias or prejudice from any source. When a judge orders a jury to follow his/her instructions about how to define and apply the law as he/she explains it to them - that jury is no longer impartial. (9) A jury that has been subjected to this usurpation of power is no longer unprejudiced - it has been influenced to the judge's uncontested bias. Uncontested because judicial rules forbid the defendant’s attorney to address the jury after these instructions have been issued. This charge to the jury is not open to cross or direct examination – the judge’s word is final, conclusive and absolute. This is no different than the judge, for all intents and purposes, telling a jury how vote by requiring them to accept his or her interpretation and meaning of the law. A government employee using his or her powerful position to ‘instruct' or ‘tamper with’ a jury has construed, denied and disparaged other rights - a clear violation of the 9th Amendment of the U.S. Constitution (10).
There are two basic reasons judges insist on being the only definer of the law:
1) Because they believe common jurors are just that - regular people that are not sophisticated enough to understand the law unless a judge explains it to them;
2) Judges do not want to surrender their self-granted power of having the final say.
Officially, Judges preside in criminal jury trials for the primary purpose of ensuring a fair trial. They are referees or umpires whose duties lie in making sure the playing field is level - not to pass judgement. Judgements are reserved to the jury. Juries decide facts, and when appropriate, judge the law as well. When a jury evaluates the law, it means comparing a law in question against an accepted standard. In America, the only standard to which a law can be assessed is a constitution, either state or federal. Jurors do not have the license to judge a law to their private standard or opinions; whereas allowing one to whimsically decide whether a law is good or bad based upon a personal view would be inviting judicial lawlessness.
However, what the judicial branch does, is refuse to tell a jury of their rights, while at the same time not allowing an attorney to do so. This is made clear by rules of the American Bar Association (ABA) which governs all American trials. (11). However, and this is a significant however: The court cannot prevent the defendant from giving his or her interpretation of the law he or she is charged under - but not as a witness under direct examination – only acting as his or her own attorney. Acting as one’s own attorney (pro se), one can say almost anything to a jury. (12) Thus, a defendant's ability to present his/her demeanor and often even a kind of summation is possible without exposure to impeachment or cross-examination. This may be a great tactical move, but only if the defendant is well poised, knowledgeable and a good speaker. The quirk of forbidding attorneys to argue the law before the jury, but permit pro se (amateur) testimony, seems to have escaped the logic of the judicial system. Does not telling a jury they have this right a denial of others rights noted in the 9th Amendment? Ditto, the defendant’s right to know of his or her pro se rights?
Forcing a defendant to become his/her own lawyer just for the sake of arguing the law's constitutionality, is a clear violation of the 6th Amendment right to counsel which includes this demand:
“…to have the assistance of counsel for his defense.”
In other words, it is well established in case law, the accused is entitled to representation at ALL levels of trial including pre-trial, interrogation and post-trial sentencing. Therefore, it seems illogical that the courts continue to support the self-empowering ABA which clearly forbids one’s legal representation at a most critical stage of a trial - the "instructions/charge" to the jury.
Our rule-of-law, The Constitution, was written by laymen for laymen and nowhere in its articles or amendments is the judicial branch empowered to instruct a jury what they must do or not do. Some states, in open confrontation to the Constitution, have even gone so far as to require jurors to report fellow jurors who refuse to follow the law as directed by a judge.
Rep. Henry Hyde’s opening statement in the Clinton impeachment investigation, 18 Dec 1998, has been recognized as the standard for the definition of the Rule of Law – the U.S. Constitution.
"The rule of law is like a three-legged stool. One leg is an honest judge, the second leg is an ethical bar and the third is an enforceable oath. All three are indispensable to avoid political collapse … The phrase 'rule of law' is no pious aspiration from a civics textbook … The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties," (13)
In all criminal proceedings witnesses who are going to testify before a jury must swear or affirm, under penalty of perjury, to tell the truth. This rule applies to everyone including lawyers, police officers and other government employees even though they have sworn an oath to their office and the Constitution. However, the framers of our Constitution did not require judges, during a jury trial, to swear to tell the whole truth and nothing but the truth. The judge is immune to this rule of law because he is not expected to testify. Unfortunately, judges do testify in the form of their 'instructions' or 'charges' to the jury. It is during this 'testimony' - this propagation of their own power - that the judge will NOT tell the whole truth. The whole truth being a jury's right and power to decide the constitutionality of a law or the defendant’s right to address the jury on the subject of the law, thus crippling one leg of the stool.
SUMMARY:
We are not a nation of laws; we are a nation of Constitutions. A community’s mood swings – including that of judges - has had negative impacts on LEOs; only the Constitution and ALL of its Amendments stands to preserve the rights, integrity and honor of the rule of law.
Many precedent-setting rulings, dating from the decade of this country's inception to as late as 1972, have confirmed that Jury Prerogative (sometimes called Jury Nullification) is a bono fide right and power of a jury: Jury Prerogative is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution. (14)
"The jury has a right to judge both the law as well as the facts in controversy." John Jay, 1st Chief Justice U.S. Supreme Court (1789).
The jury does and always has had, in the words of Justice Holmes, "the power to bring in a verdict in the teeth of both law and facts" (Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 [1920]).
"The law itself is on trial quite as much as the cause which is to be decided." Harlan F. Stone, Chief Justice U. S. Supreme Court (1941).
"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...." (U.S. vs. Dougherty, 1972) (15).
SOLUTION:
Police academies might begin teaching the court room tactic of pro se – how to inform your jury of its rights to judge the law should the question of a law’s constitutionality become an issue during a trial in which you are charged. Perhaps, if Thao and Kueng had utilized this strategy….
About the Author: Chuck Klein is a former: police officer, licensed Private Investigator (ret.), active member of International Association of Law Enforcement Firearms Instructors (IALEFI), Level 6 firearms instructor for Tactical Defense Institute (www.tdiohio.com). He is the author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution. His education includes Bachelor of Laws, Blackstone School of Laws. Information about his writings and e-mail contact is available on his web site: chuckklein.com
NOTES:
(1) U.S. District Court U.S. District of Minnesota (DMN) CRIMINAL DOCKET FOR CASE #: 0:21-cr-00108-PAM-TNL All Defendants https://www.morelaw.com/verdicts/case.asp?n=0:21-cr-00108-PAM-TNL&s=MN&d=161390 Return
(2) Main stream media report of the case: https://www.cbsnews.com/news/george-floyd-trial-verdict-reached-federal-civil-rights-trial/ Return
(3) A veteran Minneapolis LEO held his knee on a combative arrestee for an extended time causing the arrestee’s death. Wikipedia, The killing of George Floyd Return
(4) U.S. Code 18/242;Return
(5) Instructions to the Jury, CASE 0:21-cr-00108 Return
(6) Ibid U.S. District Court. Return
(7) Ibid U.S. Code. Return
(8) Ibid Instructions to the Jury. Return
(9) U.S. Constitution, Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed....” Return
(10) U.S. Constitution, Amendment VI See lead-in to this treatise and Amendment #9 Return
(11) The American Bar Association, Instructions to the Jury. "The judge will point out that his or her instructions contain the interpretation of the relevant laws that govern the case, and that [sic] jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, the jurors determine the facts and reach a verdict, within the guidelines of the law as determined by the judge." Return
(12) There is no law, statute or case law forbidding jurors to ignore a judge’s instructions to come to their own conclusions as to the interpretations of a law, statute or constitutional wording. Return
(13) Henry Hyde’s Rule of Law Return
(14) Jury Prerogative Return
(15) United States v. Dougherty - 154 U.S. App. D.C. 76, 473 F.2d 1113 (1972) Return
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Chuck Klein © 2023
Published in the 2023 Summer issue, THE CHIEF OF POLICE magazine,
the Official Publication of The National Association of Chiefs of Police.
Also see: PROPOSED 28TH AMENDMENT
I Pledge Allegiance
I, me personally, promise as an oath
of loyalty, duty, devotion
to the Flag of the United States of America,
The symbol and the representation
of the United States
of America,
and to the Republic
A nation that lives
by the rule of law
for which it Stands,
That which the Flag represents,
One Nation Under God,
United as a single people
under a supreme being.
Indivisible,
Facing all enemies, we stand
back-to-back, shoulder-to-shoulder,
rich-to-poor, liberal-to-conservative,
With Liberty and Justice for All.
Freedom, sovereignty, equality, fairness and truth,
all on the shoulders
of our law enforcement officers. (1)
PREFACE
Escalating violent crime has been blamed on such factors as the perceptions of police restraint during and after racial-justice protests, initiatives to release criminal arrestees without bail, reduction of undercover LE infiltration of gang-violence programs, reduced in-person church services, financial and medical isolation related to pandemic stress, illegal (and legal) addictive drug usage and, of course, an inability to keep guns out of the hands of those who shouldn’t have them.
Cops would most likely be more comfortable if no one had access to firearms except themselves while many citizens might favor everyone packing heat as in the old adage: An armed society is a polite society (2). Because America is so sharply and evenly divided and inasmuch as it has been over 60 years since the last Constitutional amendment was passed, passage of a new amendment would be difficult sans unity on the most contentious of issues. For the pro-gun citizenry, it centers on the fear of the slippery-slope ultimately leading to registration that results in confiscation. Anti-gunners would be happy if the Second Amendment (3) was repealed. Police want to be able to not only identify the owner of a firearm, but don’t want to face armed criminals while at the same time need assurances that they, and their family members, will be able access firearms upon retirement. States center on money, i.e., funds raised from licenses and procedures.
Crimes committed against persons – especially police officers – has intensified to disrupting levels and virtually nothing, save band-aid approaches, has been done to appease any of the camps. Following many shootings, the cycle has been for Democrats to rise up in arms (figuratively), Republicans to double-down, politicians to pass meaningless legislations and the courts to nullify challenges to the 2A. Perhaps, it’s time for a different approach. Recently, SCOTUS over-turned a century old NYC law that gave bureaucrats the power to determine if a person was allowed to receive a license to carry a concealed gun in public. (4) Though New York and other communities with similar laws will have to adjust, new law suits and legislation will surely ensue followed by more challenges to the courts. It seems to be a never-ending cycle.
“The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning
but without understanding.” (5)
HISTORY
The Second Amendment to the U.S. Constitution is a problem inasmuch as it is ambiguous – unclear due to generalization, on-going legislative and court rulings as to who can own and bear arms and which arms are allowable. To some citizens it is perfectly clear, this Amendment should be taken literally while others read it as it should be applied to present-times, subjectiveness and interpretation. There are four factors that govern and define firearm ownership in America: Individual Rights, Citizenship, Other’s Rights and Wrongs.
Individual Rights
There are only two kinds of rights: Conditional and unconditional. The right to free speech is conditional inasmuch as the condition, public safety, trumps the 1st Amendment as in yelling fire in a crowded theater when there is no fire…. Even the right to life is conditional: state/federal governments can take the life of a person who commits certain crimes and, of course, one’s right to life is conditioned when trying to take another’s life who’s exercising their right to self-defense. Because the meaning of the wording of the Second Amendment, “The right of the people to keep and bear arms shall not be infringed” (6) has been found to be a conditional right, we American’s will always be fighting in the courts for tomorrow's definition of conditions.
The right to protect oneself and one’s family is unconditional – there are no restrictions or conditions – it is absolute, fundamental and inalienable. This is not to be confused with the ability to self-protect, i.e., the right to possess, carry or utilize a firearm – or any other weapon - to affect this right. The ability to protect oneself utilizing weapons is not fundamental or unconditional and thus is subject to limited governmental controls, albeit, limited restrictions. And that’s the rub … which government and what type of controls.
The Second Amendment to the U.S. Constitution
is not an unconditional or absolute right.
If it were, grade-schoolers would be allowed to
pack a Uzi to class and prison inmates would have the
Right to Keep and Bear Arms (RKBA).
Citizenship
At the time of the Constitution's inception the framers, “all men in a man's world,” clearly gave little thought to anyone other than the man as the defender of family, property or country. Whereas, in Eighteenth-Century England, only the landed rich were empowered to defend honor and country. A citizen, circa 1785, was considered to be any white, American, male over the age of 21 and not a felon. The idea of civilian gun controls was unconscionable. On this side of the Atlantic, it was also inconceivable that a Thomas Jefferson or a James Madison would refuse to take a musket away from a drunk, a child or someone conspicuously deranged. Had one been able to ask these learned, most-sacred-document framers of the conflict of such a restrictive action; they most likely would have replied with words to the effect that the drunk or mental incompetent were, at least temporarily, not citizens. A child was, of course, not a man and a felon had forsaken his citizenship.
With the ratification of the 13th, 14th and 19th Amendments all of-age Americans were recognized as full, ruling-class citizens. Arms possession was, AND STILL IS, the signature of being a citizen - not a subject to some monarchy and most assuredly not – permanently or temporarily - mentally inept, a child, a felon, or a substance abuser. This concept of all persons being full citizens and having the right, empowerment and obligation to self-preservation was unique to America.
Rights
Restricting individual’s RKBA when such restriction violates the rights of others is justifiable providing the restriction is obedient to the Constitution. Allowing certain persons, such as children, felons or those under the influence of mind-altering chemicals to possess firearms most assuredly creates a substantial risk of loss to others’ life or liberty. However, restricting the right of a law-abiding, bona fide citizens from owning a firearm, including but not limited to machine guns, assault rifles, or short-barreled long-guns (7) does not present a substantial risk of damage to anyone.
Constitutional rights are only such when they don't infringe on the Constitutional rights of others. One's right to swing his/her fist ends where the other person's nose begins. Of course, if one keeps his/her fist concealed in his/her pocket he/she is violating no one’s rights. On the same token, if a law-abiding citizen goes about his/her legal business with a firearm concealed in his/her pocket he/she is no more infringing the rights of any other person than the theater-goer who keeps the word "fire" concealed in his/her mouth.
Some citizens might wish to exercise their right to the "pursuit of happiness" by not wanting to be in the presence of guns. On their own property, not accessible to the public, they can do as they please. However, where public property is involved such as court houses, police stations and legislatures guns can be restricted by instituting the use of metal detectors and storage boxes that the carrier can store his/her gun until he/she leaves that secure area.
To reiterate, the RKBA is a conditional right, but conditional insomuch as restrictive conveyances can only be based on citizenship and the rule of others’ rights. In other words, if one is not precluded from owning a gun and exercising this right does not infringe on anyone else's right, the bearing any type of arm anywhere they wish is what freedom is all about. (8) However, evidence the number of firearms involved in lethal force incidents this reasoning hasn’t been working to everyone’s advantage. But until such time as the Constitution is amended, things won’t change. The "American ruling class" (aka voters), if they so desire, can alter the definition of citizen, establish restrictions or expand rights - but ONLY by amending the Constitution.
Wrongs
There are only two kinds: Malum In Se, from Latin, for wrong in and of itself. We don't need laws telling us it’s wrong to murder, steal or repudiate an oath, whether we have laws against those offenses or not. All other wrongs, from failure to acquire a building permit to bribery, are Malum Prohibitum, also from Latin, meaning, wrong because, we, society says it's wrong and have labeled specific measures to be against public policy.
Humans, being politicized, opinionated and/or biased, interpret, define and enforce/ignore rights and wrongs including intrinsic, fundamental and absolute rights such as even matters of self-defense. Issues arise when humans project their powers by labeling Malum In Se as Malum Prohibitum … of vice-versa. The gun is controllable – a physical property that can be defined and regulated. But in America where the criminal element seems to be able to access them regardless of all the Malum Prohibitum laws; denying law-abiding citizens the right to self-protection with a firearm is Malum In Se?
SOLUTION
One significant problem with guns of any type is the danger to LEOs. It’s also a danger to civilians in schools, shopping malls, homes…. It would serve no purpose to reiterate the multitude of proposals previously tendered, ad nauseum, to resolve this issue. Therefore, a new approach might be needed, albeit, not one directly doable by LE. This may not be perfect and many may strongly disagree with the basic concept; however, the old and still true observation of Edmund Burke might apply: "The only thing necessary for the triumph of evil is for good men [and women] to do nothing" (9) Well, we, The LE community are good men and women….
A well-crafted new Amendment could capture the unity of both Republicans and Democrats. Though some of the attributes of this proposed amendment have been placed into law via the legislature or SCOTUS, this action is intended to clear-up the ambiguities that have so divided the nation.
AMENDMENT XXVIII
Law Enforcement Armed Citizen Amendment (LEACA)
SECTION I
Any Citizen Of The United States, Over The Age Of 18, Who Is An Active Duty Member Of The Armed Forces Of The United States Or Has Not Been Dishonorably Discharged From Any Branch Of U.S. Military Service Or Who Is Not Under Indictment For, Convicted Of, Under Arrest For Or While In The Act Of Committing A Felony Or Released On Bail For Any Crime Of Violence, Or Trafficking In Any Illegal Drug Of Abuse Or Has Not Been Adjudicated As A Chronic Alcoholic, Drug Dependent Or Mental Incompetent Or Is Not In Protective Custody Or Is Not Consuming An Alcoholic Beverage Or Is Under The Influence Of Alcohol Or A Drug Of Abuse And Has Been Vetted By Any American Law Enforcement Agency, Has The Right To Acquire, Possess And Bear Arms And The Duty To Keep Such Arms Under Their Control Anywhere This Instrument Has Jurisdiction.
Annotation To Section I
Any person who is a citizen of the United States (an inducement for those living here as foreign aliens), and does not fall under one or more of the disabilities and whose demeanor and criminal history has been scrutinized by a police agency has the right to own and carry guns. Section I constitutionalizes the inherent and intrinsic right to acquire (purchase, lend, borrow – keep under their control) and bear arms. The right extends to any physical location under the political sovereignty of the U.S. Constitution.
Keeping and bearing arms is not only protected, but it carries with it an obligation to be sure these weapons don't fall into the wrong hands, i.e., prohibited persons. In other words, if a legal owner of arms allows a prohibited person access to his/her arms, that owner of the arms is in violation of this Amendment and subject to punishment as covered under Section 8 of this Amendment. The vetting requirement by law enforcement allows for removing weapons from a person who is under arrest or even out on bail for any of the listed crimes. Though LE agencies will be accountable to seeing that all applicants are free of disqualifying disabilities from obtainable records, i.e., legislators will be pressured to make non-public mental health and juvenile records available. In addition, utilizing LE for this task rather than bureaucrats will garner trust from the public while under this same protocol the vetting and permits duties will require an increase in LE staffing (read, budget) thus, for all intents and purposes, more police officers will be available to protect society – a win-win for citizens and the police profession overall. This Amendment also restricts the possession of firearms by anyone who is in protective custody – such as when a person who has not been adjudicated as mentally unfit, but police have taken this person into custody pending such adjudication.
SECTION 2
The Bearing Of Arms Is Prohibited Within An Enclosure Where Notification Is Made Restricting The Bearing Of Arms, Search Provisions Are Operational And Safe And Convenient Provision Is Made To Secure And Retrieve Arms Carried To The Ingress/Egress Point Of Enclosure, Private Homes Excepted.
Annotations To Section 2
Any public or private entity has the option of forbidding the carrying of arms into or onto its enclosure (building, fenced-in area) as long as said entity posts a notice, physically operates a means of detection (metal detector) and provides for the arms carrier to safely and conveniently store/retrieve his/her arms. This way, military bases, court houses, police stations and department stores, schools, etc., that don't want persons to be armed within their enclosures, must establish a 'coat check' for guns and have metal detectors in operation. Yes, these security measures are expensive, but so was establishing the BATF, SS, FBI, TSA … school bus service…. Private homes are exempt from these conditions, in other words, one’s home is still his/her castle.
SECTION 3
Arms Means Any Rifled Barreled, Breech Loading Device Weighing Less Than Fifteen Pounds, Unloaded, And Capable Of Discharging By The Action Of An Explosive Or Combustible Propellant A Projectile Or Projectiles Of Which The Projectile[s] Is [Are] Not Greater Than .525 Inch In Diameter, And Was Manufactured After 1898; Or Any Non-Rifled Barreled, Breech Loading Device With A Bore Diameter Not Greater Than .780 Inches; Bearing Of Arms Means To Carry, Either Openly Or Concealed; Keeping Arms Means Ownership Or Having Control Of Arms.
Annotations To Section 3
Most non-gun and many gun owners would feel uncomfortable with their neighbor hauling around a bazooka or other mega-destructive device. Barrel and stock lengths, rifle/handgun calibers up to .50, shotguns up to 10 ga. and fully automatic arms are not restricted as long as the arm doesn't weigh more than 15 pounds - empty. This section does not preclude local governments from enacting and enforcing 'activity laws' such as pointing firearms (assault) or inducing panic by shooting in crowded public arenas. Antique firearms (those made prior to 1898) are, as they are now, exempt from this Amendment.
SECTION 4
Each Territory Or State Of The United States Shall License/Test Persons, Not Prohibited Under Section I Of This Amendment, Who Wish To Bear Concealed Arms In Public; Fees And Complexity Of Testing For Such Licensing Shall Be Reciprocal And Not Exceed That Which The Licensing State Or Territory Has Established For A Motor Vehicle Operator's License At The Time This Amendment Is Ratified.
Annotations To Section 4
Some may object to allowing states to license something one has a constitutional right to do. The state, however, also has rights, such as its need to know who is a citizen - a person entitled to own and carry concealed deadly weapons. Requiring a license to carry concealed arms greatly enhances the likelihood for ratification inasmuch as states might be more inclined to ratify this Amendment if they receive income generated from concealed-carry fees. More importantly, and especially since the terrorist attack of September 11, 2001, anyone wanting to purchase or carry instruments of lethal force should be required to prove (be successfully vetted by LE) they are law-abiding American citizens. Qualifying for and possessing a "permit" card is a mark of citizenship - it is only available to those who are not drunks, mental patients, children or criminals. Establishing just who is and who is not a citizen when it comes to those who are part of America's First Line of Defense is paramount to a secure country.
Since SECTION I guarantees the right to keep and bear arms, all permits must be on a 'shall issue' basis. The tests and the procedure for securing the license cannot be any more complex than what a state requires for its motor vehicle operator's license, i.e., prove who you are, study a pamphlet and take tests (can't have those who can't comprehend use of lethal force laws packing heat). This Section makes reciprocity between states and territories mandatory and does not restrict the bearing of unconcealed arms.
SECTION 5
No Local, State Or Federal Government Employee Or Agency Shall Maintain A Registry Of Arms.
Annotations To Section 5
Registration of firearms is forbidden by any government person or government agency. This would not preclude manufacturers and gun dealers from keeping records of the original purchaser in case notification is needed for reasons such as recall or safety notices - as is already the law. This does not prevent voluntary data bases by private organizations such as gun/collector clubs.
SECTION 6
All Federal, State And Local Statutes, Laws, Court Decrees, Executive Orders And Legislative Acts That Pertain To The Keeping And Bearing Of Arms, Except As Applied To Arms Manufacturers And Licensed Arms Dealers In Force At The Time This Amendment Is Enacted And Not In Contradiction To The Constitution Are Void And No Future Restrictions On The Keeping And Bearing Of Arms Except As Provided For In This Amendment Or By Amendment To This Constitution Shall Be Permitted.
Annotations To Section 6
This section is to make it clear that this new amendment has superseded all other current or future laws, statutes and executive orders and court rulings - federal, state or local! Arms laws pertaining to gun manufacturers and dealers, on the books at the ratification of this amendment, except those laws that are in conflict with this AMENDMENT, remain in force. There is no need for other controls on firearms as any such would be in violation of this amendment.
SECTION 7
One Hundred-Eighty Days After Ratification, This Amendment Becomes Effective And The Second Amendment To The Constitution Of The United States Is Repealed.
Annotations To Section 7
Upon ratification of this, the 28th Amendment, the 2nd Amendment will be void. The 180 days period is to allow states to prepare their testing procedures and LE to gear up for the vetting process.
SECTION 8 The Congress Shall Have The Power To Establish The Punishment For Violations Of This Amendment And Set Procedures And Limits For Law Enforcement Vetting.
Annotations To Section 8
Insofar as seriousness of crimes varies, it is best left to the Congress to regulate punishment provisions. The vetting process is up to the Congress to set the limits and procedures.
SUMMARY
Almost since inception, the Second Amendment has been contentious inasmuch as citizens have differed on who is entitled to own and carry what type of firearm. Local, state, federal laws and court decisions have tried to address this issue only to be appealed, reevaluated and barter again and again. Perhaps, a definitive amendment to the Constitution could finally put the matter to rest. Though crime will always be with us, and firearms in America are ubiquitous, we might best codify – in an amendment to our most sacred document - exactly how ownership, possession and type/category of firearms can be regulated for all concerns. Under the doctrine of Pothings Nerfect, this Amendment tenders multiple quid pro quos inasmuch as the far right gains access to more types of firearms; the far left will find comfort in the requirement of enhanced background checks plus mandated training; the state receives money for licensing; law enforcement controls the vetting process while securing additional funding and … all citizens will become safer.
About the Author: Chuck Klein is a former: police officer, licensed Private Investigator, Level 6 firearms instructor and current/active member of International Association of Law Enforcement Firearms Instructors (IALEFI). He is the author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution. His education includes Bachelor of Laws, Blackstone School of Laws. Information about his writings and e-mail contact is available on his web site: chuckklein.com
Notes
(1) The American Pledge of Allegiance; annotations by the author. (2) Robert A. Heinlein, Author (1907-1988) https://www.brainyquote.com/quotes/robert_a_heinlein_100989 Return
(3) The Second Amendment to the U.S. Constitution: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Return
(4) New York State Rifle & Pistol Association, Inc. v. Bruen, 23 Jun 2022. https://www.foxnews.com/politics/supreme-court-gun-decision-shoots-down-ny-rule-high-bar-concealed-carry-licenses Return
(5) Supreme Court Justice Louis Brandeis, 1927. Return
(6) Ibid. The Second Amendment. Return
(7) Constitutional Amendment: Only a constitutional amendment can limit the type, style or function of a firearm that can legally be possessed. Return
(8) Ibid. Constitutional Amendment. Return
(9) Edmund Burke, Member of Parliament (1729-1797) https://www.goodreads.com/author/quotes/17142.Edmund_Burke Return
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Chuck Klein © 2024
Published in the 2023 Fall issue, THE CHIEF OF POLICE magazine,
the Official Publication of The National Association of Chiefs of Police.
Only cops can relate:
Drop a dime
FIDO
Street Justice
Light 'em up
Flash the tin
Skated
Terry Stop
Badges? We don't gotta show
you No stinkin' badges.
PREFACE
The below off-duty firearms carry survey, though not comprehensive, provides a window into the thinking of major police agencies including American federal, county and city plus the positions of two foreign national agencies. The subject here is not about being able to protect yourself, per se, but more about being in position of being able to protect those you’ve sworn to serve and protect. The oath American LEOs take doesn’t say: while on-duty only. Thus, if any LEO who doesn’t wish to protect him/herself and family while off-duty is a personal choice, in public, the obligation to protect others is mandatory.
History
A few decades ago some courts ruled that LEOs could not carry off-duty unless so ordered by their department and as part of their official capacity. This led to Chiefs making it formal policy that all officers must carry while off-duty. Contracts, unions and the FOP interpreted that to mean officers should be paid for being on-call. Legislatures intervened and cops, for the most part, were “allowed” to carry off-duty. Policies, laws and practices change over time. (1)
When it comes to carrying off-duty firearms, there are three types of police officers: One that always carries a handgun and the one that never carries or one that sometimes carries. It’s a given that being an LEO involves far more danger than that of any other profession. As a cop, even when off-duty, running into a disgruntled past arrestee could generate a physical attack on you – or the family members you might be with at the time. The OIC at the Norwood, Ohio Police Academy, in response to a recruit's question of should cops carry off-duty, said it best; Known as Umbaugh’s Law:
One either never carries a firearm,
or one always carries,
but one never sometimes carries."(2)
In other words, if your mindset is that you are carrying, then you won’t be transmitting unintentional vibes of fear; it naturally forces you to be in condition yellow at all times – aware of your surroundings. This personal persona of confidence is telegraphed by your posture, and the ability to look anyone in the eye with conviction. That shield in your pocket is far less protection against a homicidal maniac than a 9mm concealed on your hip.
Cops, per se, have that 6th sense,(3) the innate ability to “read people” - demeanors that include fear, strength, tuned-out/unaware, ready to attack/flee…. These attributes are also ofttimes discernable by criminals with animal-type instincts. In other words, there are bad guys that can read us too. Those who carry the power of life or death on their person, tend to transmit a self-preservation bearing. It’s a subconscious transmitting of alertness - a level of self-preservation and passive/aggressive identity.
When I moved to the downtown portion of Cincinnati, as a civilian and after 17 years of country living, I was saved by my projected image. On a warm summer evening, I decided to walk to my son’s home, about 8-10 blocks away. What I didn’t realize was my course took me through a high-crime neighborhood – one where tennis shoes hung from telephone and cable wires. The streets were lined with dilapidated rowhouses with only a narrow sidewalk between them and the curb. I was outfitted in shorts and a loose-fitting, short-sleeve shirt covering a Colt Diamondback in a strongside holster.
Sensing this route was not a good plan, I stuck to the middle of the, garbage-strewn street. Approaching a cluster of drug-seller types, dressed in underwear-exposing garb, I looked them over – eye-to-eye while eyeing possible barriers to use for defense. One of the gang-bangers stepped away from the group, smiled, showing a diamond studded tooth, and said, “What’s shakin’, officer.” Without breaking stride, I returned the smile while putting a finger to my lips in the classic “shhh” expression. I was no longer an LEO, but I’m convinced my character projected plain-clothed/undercover cop and that was enough to keep them at bay. I don’t believe I could have pulled that off sans the Colt. Looking tough, but knowing there is no gun available can sometimes be discerned by street-smart thugs who also have a 6th sense. My son drove me home later, using a different set of streets.
Possible advantages to never off-duty carry are not having to worry about being in a place that forbids possession of a lethal weapon – such as boarding a plane or when consuming alcoholic beverages. Of course, if you’re in condition yellow, you’ll be aware of these restricted locations. The third type of law officer, the sometimes carrier, creates a conflict inasmuch as pretending toughness or inadvertently walking into a restricted location while armed, and, of course, reaching for a gun when needed, but isn’t there. Even in your own castle, it is best to always carry, not only for the actual protection, but because it keeps you mindful that this power to protect is right where it should be. Besides, no one including your child, can get to it - if secure on your body. (4) Other than statutory restrictions, there is only one condition when one should never have a firearm on their person (or very close at hand) – when under the influence of anything that may impair thinking. You can't teach common sense anymore you can fix stupid.
Worst Case Scenarios
a) You strap on your duty weapon, go about a daily routine, come home, store your gun and then … a past-target crashes thru the front door while the firearm is … stored. Or, you forgot to pick-up the milk on the way home and slip out, with a young daughter in tow for a quick run to the local stop & rob, sans a gun. “It’s just a short trip, honey – we’ll be right back”. At the S&R you walk into a robbery/mass shooting in-progress where the robber/shooter is coming after you and your child….
b) Suppose during normal waking hours, there’s an innocent knock at the front door – by a person in normal attire or dressed like an ordinary delivery driver? The threat, who pushes the door open as he/she intrudes, has the advantage. Doing anything other than draw, point (and fire if necessary), places defender under the control of the invader. In other words, to be prepared to protect yourself and the occupants of your home, the best place for your defensive handgun is on your person. And, it should be there every waking moment, no exceptions, no excuses. Besides, that’s the safest place if you have children.
c) You and the family are watching TV or sitting at the kitchen table when the door is suddenly and violently kicked in by the dude you arrested yesterday, last week… what are you gonna do … holler “kings,” “times” or “Hey, no fair fellas, let me get my gat?”
The Survey
In preparation for this article, select law enforcement agencies were contacted to learn of their guidelines for off-duty carry. Here are some of the results of correspondence regarding off-duty carry:
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES:
“As sworn law enforcement officers, ATF special agents are generally authorized to carry ATF-approved firearms at all times.” (5)
THE ROYAL CANADIAN MOUNTED POLICE:
“RCMP officers may be permitted to carry firearms, while off-duty with permission of the CO. Permission is based on operational necessity only, e.g. a situation in which there is reason to believe that the life or safety of the member or other persons may be in imminent danger. While RMs are acting in the lawful course of their duties under RCMP Act, section 18, they are legally permitted to carry intervention options, including firearms….” (6)
FEDERAL BUREAU OF INVESTIGATION
“SA's [Special Agents] are authorized and encouraged to be armed while ‘off duty.’" (7)
CINCINNATI POLICE DEPARTMENT
“Cincinnati Police Officers are allowed to carry firearms off duty. The carrying of a firearm off duty is not required. Cincinnati Police Officers must carry a firearm while attending court. If they carry a firearm, it must be approved by the Police Chief and the Range Master. The firearm must be 9mm Smith & Wesson 2.0 full size or Smith and Wesson M & P Compact 9mm
“Off-duty handguns provide officers with an alternative to carrying the primary duty weapon while off-duty. Carrying an off-duty handgun is optional, and will not be carried unless approved by the FTS. An officer who carries an off-duty handgun is responsible for its purchase, cost of repairs, maintenance, and ammunition. Officers must annually complete an Ohio Peace Officer Training Academy approved qualification course with their off-duty handgun. The FTS will conduct training sessions on a quarterly basis for officers wishing to carry an off-duty handgun.
“In the State of Ohio (effective June 2022) anyone over the age of 21 can open or concealed carry a pistol or revolver if they are eligible to carry such weapon and are not under disability by law. Our officers are allowed to do this, but not under our definition of off duty. Most either carry Off Duty Status or have a CCW. Some also go by the open or concealed carry provision”.
CPD Procedure Manual:
1. Carrying a firearm off-duty is optional.
2. Off-duty officers, not in uniform, who choose to carry a firearm, will conceal the firearm on their person.
3. An officer wishing to carry an off-duty handgun not listed in Sections A. 1, 3, and 4 must contact FTS for approval. a. If approved, the officer must qualify with the off-duty weapon.
4. Ohio Revised Code (ORC) 2923.15 prohibits carrying firearms while under the influence of alcohol or any drug of abuse. a. Law enforcement officers are not exempt from the prohibition.
5. The following ORC Sections apply to off-duty personnel, UNLESS they are acting in the scope of their duties as a police officer. a. ORC Section 2923.12.1, Illegal Possession of Firearm in Liquor Permit Premises. b. ORC Section 2923.12.2, Illegal Conveyance or Possession of Deadly Weapon or Dangerous Ordnance or Illegal Possession of Object Indistinguishable from Firearm in School Safety Zone. c. ORC Section 2923.12.3, Illegal Conveyance of Deadly Weapon or Dangerous Ordnance into Courthouse: Illegal Possession or Control in Courthouse.
6. Off-duty personnel may carry the Department authorized firearms listed in Sections A. 1, 3, and 4 of this procedure, after completing the approval process in Section F. H. Approval Process for Carrying a Personally Owned Department authorized firearm in an On or Off-Duty Status. All officers responding to court in civilian attire shall carry an authorized weapon concealed on their person in a secured holster. (8)
GERMAN FEDERAL CRIMINAL POLICE
“In accordance with section 55 (1), sentence 2 of the Weapons Act, in conjunction with the relevant service regulation, police officers of the Bundeskriminalamt (BKA), who have acquired the qualification for their service careers, are, in principle, authorized to carry officially licensed weapons (pistols or revolvers) and ammunition even when off duty.
“When the officer is off duty, he must carry the firearm in a concealed manner and also carry along his police ID card, which shows his right to carry a firearm. The authorization for off-duty handling of firearms does not apply when safe handling is not guaranteed. Long guns, flare pistols, service weapons, which are subject to the War Weapons Control Act, and firearms the shape of which is such that they can pass for another object or can be disguised as or are built into everyday items are expressly exempt from this.
“Pursuant to section 30 of the Basic Law for the Federal Republic of Germany, police matters fundamentally fall within the competence of the individual Länder (federal states); thus, the organization, tasks and powers of the police are regulated by the police laws of the Länder and regulations on the use of service weapons when off duty may differ from the provisions applicable to the BKA.” (9)
LOS ANGELES, CA SHERIFF’S DEPARTMENT Manual of Police and Procedures MPP 3-03/210.05 Firearms:
Any approved off-duty, back-up, or plainclothes handgun must comply with the following requirements:
Any handgun approved for on-duty use may be carried for off-duty, back-up, or plainclothes duty. Handguns equipped with a manual safety device must be carried on ‘Safe.’ Sworn Personnel must comply with all provisions of MPP 3-03/210.05. Handguns must be carried in a holster which covers the trigger guard (MPP 3-03/280.00). Unless stated otherwise, all firearms require a separate training and qualification course for certification to carry. Handguns with ported or compensated barrels are prohibited. .380 caliber handguns may be carried off-duty or as a back-up, but not as a primary on-duty handgun either in uniform or plain clothes when in positions requiring the carry of a firearm.
Sworn members (on-duty or off-duty, while in uniform or plain clothes) carrying any Department-authorized back-up or off-duty handgun, as a secondary handgun, must securely carry the weapon concealed from view. In no case shall it be carried on the duty belt or exposed in any way.
Department members shall carry any authorized semi-automatic handgun used on-duty, off-duty or as a secondary weapon in the following manner:
Loaded, with a round in the chamber;
* Magazine loaded to the magazine manufacturer’s specified capacity;
* Hammer of a single action pistol cocked (i.e., 1911 pistols);
* External hammer of a double action pistol de-cocked; and
* External safety in the on position, if equipped.
* Sworn members shall carry any authorized revolver used off-duty or as a secondary weapon with the cylinder loaded to capacity and hammer de-cocked (double action).
“LASD does not maintain any rule or policy mandating a ‘shall carry’ policy for carrying off duty.” (10)
Solutions
Inasmuch as LEOs take an oath to serve and protect the public, coupled with the increasing number of mass-shooter incidents, local, county, state and federal police agencies might consider:
1) Requiring all sworn personnel to carry a handgun at all times – on-duty as well as off-duty. Though such a mandate might require financial incentives; the cost being offset by having to replace an officer who is gunned down who wasn’t carrying a firearm while off-duty. In addition, saving lives of those exposed to killers is a cost-effective method of complying with the obligation to serve and protect.
2) Officially and publicly encouraging their officers to carry off-duty. Such a policy, made public, will send a message that the agency takes protecting the public (and its officers) serious.
3) Foster the concept that the safest and most defensive-effective location for a handgun is on one's person.
Summary
Though most LE agencies do not require their sworn personnel to carry a firearm while off-duty, perhaps it might be time to consider a change in policy. The benefits to society and law enforcement, specifically of sworn and trained personnel to carry a defensive handgun, should be obvious. Laws restricting carrying firearms by civilians will apply to all LEOs when they are no longer employed as cops and become an ordinary citizen once they leave the force. Of course, American federal law allows retired LEOs to carry, but that does not apply if they resign prior to retirement or their department’s qualification becomes burdensome due to retired officer's relocation and/or abilities? It is most prudent to be armed at all times - even at home - where home invasion scenarios include “crazies” that pick a home at random, target a specific LEO or mistake their home as that of a stockpiling drug dealer.
About the Author: Chuck Klein is a former: Police Officer, Licensed Private Investigator, Level 6 Firearms Instructor and author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution; THE BADGE, Stories and Tales from Both Sides of the Law. He is a current and active member of the International Association of Law Enforcement Firearms Instructors (IALEFI). Information about his books and e-mail contact is available on his web site: www.ChuckKleinAuthor.com
Notes:
(1) Author’s personal remembrances when a full-time LEO and member of the FOP. Return
(2) Lieutenant Ed Umbaugh, Norwood, Ohio Police Academy, 1972. Return
(3) A power of perception thought of as a sense in addition to the commonly accepted five senses; intuitive power. Webster’s New World Dictionary, 3rd College Edition. Return
(4) I’ve been lucky. Other than the range or hunting game, I have never fired my gun. However, I wouldn’t be writing this today had I not had a firearm during a number of instances as a cop, a P.I. and as a regular citizen. The mere presence of a gun either drawn or telegraphed has saved my hindside many times. RETURN
(5) Ian Camejo, Public Affairs Specialist, Bureau of Alcohol, Tobacco, Firearms and Explosives,(202) 549-0937, Ian.M.Camejo@usdoj.gov Return
(6) Sergeant Matthew Cornacchione RCMP.HQMediaRelations-DGRelationsmedias.GRC@rcmp-grc.gc.ca Return
(7) SSA Ray Hall, Office of Public Affairs, FBI Articles 410-507-8109, rbhall2@fbi.gov Return
(8) Sergeant Matthew Cornacchione, Rangemaster, Cincinnati Police Department/Target Range 10139 Spartan Drive, Cincinnati, Ohio 45215, (513) 563-7721, Matthew.Cornacchione@cincinnati-oh.gov Return
(9) Im Auftrag, Sarah Steilen Bundeskriminalamt LS 2 - Pressestelle Telefon: +49 611-55-13083; Telefax: +49 611-55-45113, pressestelle@bka.bund.de Return
(10) Captain Shawnee N. Hinchman, Risk Management Bureau, LASD DiscoveryUnitPRARequests@lasd.org Return
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