FacebookTwitterRedditEmail

State Law Breakers

I just read that the parents of an autistic high school student arrested in a drug sting operation in Temecula, California last December have filed suit against the school district. The parents were “initially happy their son had made his first and only friend last year at school,” but became suspicious when his “school friend” kept making excuses for not coming over. The “friend,” actually Riverside County Sheriff’s Deputy Daniel Zipperstein, “pressured their lonely and vulnerable son with more than 60 text messages over about three weeks into buying half a joint from a homeless man.”

The very existence of “sting operations,” by which law enforcement personnel solicit illegal activity — in other words, perform acts which are illegal on their faces in the course of their official duties — speaks volumes about the nature of the state and its laws. When the first professional police forces were created in London and New York in the early 19th century, they were regarded as simply hired functionaries who got paid to perform the same “posse comitatus” functions (preserved in the archaic practice of “citizen’s arrest”)  within the competency of all citizens. The proposition that professional police be granted special status over and above that of their fellow citizens would never have been tolerated.

I’ve never understood the logic by which someone in uniform can commit an act that’s defined as illegal by statute, in the course of a sting operation, without themselves breaking the law. If it’s illegal for a citizen to offer drugs or sexual acts for sale, or to solicit their sale from others, how is it legal for a cop to offer to buy or sell drugs from a citizen?

The answer, of course, is that the state cannot operate on the same logic as its citizens. I once told a coworker that, when it came to drug and sex work sting operations, cops should be subject to the same anti-solicitation laws they’re enforcing on us. Her response: “But then how would they catch people who do that stuff?”

Good question. Obviously, they couldn’t. The state simply can’t function unless it gives its own functionaries, with a wink and a nudge, an exemption from the laws that everyone else is supposed to obey.

The state couldn’t enforce laws against drugs, sex work, or any other consensual activity if it were literally bound by laws like the due process guarantees in the Bill of Rights. Imagine how the Drug War would fare if the Fourth Amendment were enforced literally, without any of the “reasonable expectation of privacy” or “probable cause” or “good faith” lacunae the courts have read into it — if cops actually had to have a warrant specifying the place and what they were looking for before they could set foot on your property? Imagine if civil forfeiture were treated as a violation of the Fifth Amendment, and the state couldn’t take your possessions without first charging you with a crime and persuading a jury to convict you. Under those terms, it wouldn’t matter if the substantive restrictions on drugs were as harsh as those in Singapore — they would be dead letters in practice because they were unenforceable.

Civil forfeiture was first introduced in the revenue collecting arms of government, because it was understood from the beginning that a literal interpretation of the common law prohibition on seizure of property without due process of law would render the tax laws unenforceable. Going through the ordinary criminal law process to collect from tax evaders would cost more than the revenue was worth.

Civil forfeiture by an administrative law body, based on a preponderance of the evidence, was originally a form of prerogative law in England. Prerogative courts like Star Chamber derived their procedural rules from the Roman civil law, as it was codified under Justinian. The proliferation of prerogative courts under the Stuarts was among the things that led to both Charles I and James II losing their thrones. But even after the accession of William and Mary, it was understood that customs and revenue were an exception to the common law’s “universal” due process requirements.

It was customs officials, operating under Admiralty law, who rubbed American colonials the wrong way and helped bring on the American Revolution. But even after the ratification of the Constitution and Bill of Rights, it was quickly established in case law that the prohibition against seizing property without a jury trial didn’t apply to customs and revenue — because it couldn’t.

So in the end, it doesn’t matter what the law says, or even how it explicitly restrains the state on paper. If government needs an unwritten exemption from the law to do what it wants, It will get it.

Kevin Carson is a senior fellow of the Center for a Stateless Society (c4ss.org) and holds the Center’s Karl Hess Chair in Social Theory.

More articles by:

Kevin Carson is a senior fellow of the Center for a Stateless Society (c4ss.org) and holds the Center’s Karl Hess Chair in Social Theory. He is a mutualist and individualist anarchist whose written work includes Studies in Mutualist Political Economy, Organization Theory: A Libertarian Perspective, and The Homebrew Industrial Revolution: A Low-Overhead Manifesto, all of which are freely available online. 

bernie-the-sandernistas-cover-344x550
Weekend Edition
August 23, 2019
Friday - Sunday
Paul Street
Notes on Inauthenticity in a Creeping Fascist Nuthouse
Andrew Levine
Recession Now, Please
Rob Urie
Mr. Trump Goes to Kensington
Jeffrey St. Clair
Deep Time and the Green River, Floating
Robert Hunziker
Earth 4C Hotter
Kenneth Good
Congo’s Patrice Lumumba: The Winds of Reaction in Africa
Pete Dolack
The Realism and Unrealism of the Green New Deals
David Rosen
The White-Nationalist Great Fear
Kenn Orphan
The War on Indigenous People is a War on the Biosphere Itself
L. Michael Hager
What Netanyahu’s Travel Ban Has Revealed
Ramzy Baroud
Jewish Settlers Rule the Roost in Israel, But at What Price?
Evaggelos Vallianatos
Is Environmental Protection Possible?
Josue De Luna Navarro
What It’s Like to Grow Up Hunted
Ralph Nader
They Don’t Make Republicans Like the Great Paul Findley Anymore!
Gary Olson
Whither the Resistance to our Capitalist Overlords?
Dean Baker
On Those Downward Jobs Revisions
Rev. William Alberts
Beware of the Gun-Lover-in-Chief
Helder F. do Vale
Brazil: From Global Leader to U.S. Lapdog
Laura Finley
Educators Actually Do “Work” in the Summer
Jim Goodman
Farmers Need a Bill of Rights
Tom Clifford
What China’s Leadership is Really Worried About: Rising Debt
Daphne Wysham
Saving the Planet Means Fighting Bipartisan Corruption
Tierra Curry
Amazon Fires Put the Planet at Risk
Nyla Ali Khan
Kashmir: Decentralize Power and Revive Regional Political Institutions
John W. Whitehead
American Apocalypse
George Wuerthner
How Agriculture and Ranching Subvert the Re-Wilding of America
Daniel Murphy
Capital in the 21st Century
Jessicah Pierre
400 Years After Slavery’s Start, No More Band-Aids
Kim C. Domenico
Finding the Comrades: Maintaining Precarious Sanity In Insane Times
Gary Leupp
“Based on the Fact She Won’t Sell Me Greenland, I’m Staying Home”
John Kendall Hawkins
The Chicago 8 Trial, Revisited
Rivera Sun
Tapping into People Power
Ted Rall
As Long as Enemies of the State Keep Dying Before Trial, No One Should Trust the State
Jesse Jackson
The Significance of the “1619 Project”
Thomas Knapp
“Nuance” in Politics and Public Policy? No Thanks
Christopher Brauchli
Trump and Endangered Species, Wildlife and Human
Mel Gurtov
China’s Hong Kong Nightmare, and the US Response
Ron Forthofer
Sick of Being a Guinea Pig
Nicky Reid
Why I Stopped Being White (and You Should Too)
Jill Richardson
As the School Year Starts, I’m Grateful for the ADA
Seth Sandronsky
Rethinking the GDR
Adolf Alzuphar
Tears / Ayizan Velekete
Stephen Cooper
General Jah Mikey: “I Just Love That Microphone, Man”
Louis Proyect
Slaves to the Clock
David Yearsley
Moral Cantatas
FacebookTwitterRedditEmail