8 years ago
In Guardsmen Attacked and Overrun at U.S. Border we discussed the embarrassing and dangerous rout of U.S. troops by heavily armed criminals at the border around January of 2007, and how, while the use of the troops didn’t violate Posse Comitatus, they were not armed (they didn’t have ammunition for their weapons) and had only assisted the border guards in clerical and maintenance duties.
After calling for the deployment of the National Guard to the borders by so many television pundits, it was difficult for the country to understand why their soldiers had been routed by drug gangs. There is something far deeper at work here, and it will prevent the effective closure of the border no matter how many miles of fence is constructed and no matter how many border guards or National Guardsmen are deployed to the border. Border Guards and the Armed Forces will behave in accordance with RUF, or rules for the use of force.
In Tennessee v. Garner, 471 U.S. 1 (1985), the SCOTUS (White, Brennan, Marshall, Blackmun, Powell and Stevens, with O’Conner and Rehnquist dissenting) weighed the use of deadly force for the apprehension of criminals:
The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement. It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee.
The decision would change the face of law enforcement across the nation (even for those police departments who had already implemented something like the SCOTUS decision into policy):
Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, at 659. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, 9 the presently available evidence does not support this thesis.
Notice here that the SCOTUS takes an irrelevant adventure into unscientific and anecdotal evidence to bolster their decision rather than focusing on the case constitutionality or lack thereof. Continuing:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
What the decision means is that a police officer (and substitute here border guard) cannot use his weapon to apprehend; he can only use it for self defense in the case of an armed assailant who intends to do harm. Apprehending must be performed without deadly force. Notwithstanding the video of looters who were ignorant of the law being detained by police officers in New Orleans after the flood, the police cannot use their weapon to detain. Those looters could have fled the scene if they were able to escape physical, bodily restraint by the officer. They only stopped because they incorrectly thought that the officers could have used deadly force to detain them.
The gang members who regularly cross the southern border are not so ignorant of the law. This legal criteria is applied without exception to non-citizens who have crossed over the U.S. border from Mexico. Calls for sending the National Guard to the border are ostensibly a call for militarization of the border. In fact, the administration, border guards and military forces of the U.S. know better, and thus the deployment of Guardsmen becomes a shell game with national security. It is done knowing full well that it will have no effect on border security.
Big business has created a situation in which national security is being sacrificed for the sake of stock prices. The logical connections go as follows. The use of illegals to perform work in the U.S. is big business. The corporate class has found a way to create a new slave class by paying lower wages to illegals while forcing the middle class to shoulder the burden for medical, social, language, educational and other welfare programs for this new slave class. This new slave class makes an already porous border even worse, and helps to break a system that is woefully unprepared and improperly tooled to track illegals in the country. This system breakage then redounds to further lack of control over potential terrorists who would cross over the border.
If you doubt that the new slave class is big business for corporations, the video below might convince you otherwise.
Many things can be done about the current debacle that is the border with Mexico. The SCOTUS could revisit Tennessee v. Garner. But will they? The congress could enact legislation that militarizes the border (or at least provide more authority to border guards) and, by their constitutional authority, order the courts not to adjudicate the law. But will they? Miles of border fence could be constructed and manned by border guards with non-lethal weapons. But will America do this? We could imprison corporate executives who hire illegals. But will we? Will we institute all, some or none of these changes? Without having a national conversation about the entire scope of the problem and getting serious about the hard work of securing the border, sending more Guardsmen to the border will not just be ineffective. It will prolong the problem and prevent the national conversation from taking place. And talk about “comprehensive immigration reform” (S. 1639) is a ruse and usurper of a real national conversation about securing the border.