Yesterday’s Denver Post had some additional detail on the case of the marijuana stolen by the Feds (here’s my recap of the case), and the Post article included this:
Department of Justice attorney Michael Hegarty argued that the officers who went into Don Nord’s apartment in Hayden on Oct. 14 were all deputized Drug Enforcement Administration agents acting “under the color” of federal law.
Through this they claim they don’t have to follow the state judge’s directions and are exempt from his contempt citation. And the fact that they were serving a state warrant? What color is that?
This points out a growing concern that I’m having regarding an emergent federal takeover of state and local law enforcement activities.
You see, the Constitution gives police power to the states and none to the federal government. The feds have developed certain police functions over the years through the Commerce Clause, regulating interstate commerce, treasury functions, etc.
However, in recent years, primarily through ploys in the drug war, you have the huge growth of the joint federal and state task force. These task forces are usually developed in part through federal grants and the money is very attractive to state and local police. Once the task forces are started, it’s almost impossible to shut them down because of the fear of losing funding.
In 2002, there were 207 local and state task forces through the DEA alone. All of them received funding from the DEA, and 153 of them received extra funding from DEA headquarters, including state and local overtime payments. (Other joint forces have been developed in immigration and terrorism operations.)
Eventually, these joint forces end up under the thumb of federal agencies, even to the point of actually disobeying or circumventing the courts and laws of their own states.
The Colorado case is just one example. For years, this kind of thing has been happening in asset forfeiture cases. As detailed in a powerful series of reports in the Kansas City Star back in 2000:
Police and highway patrols across the country are evading state laws to improperly keep millions of dollars in cash and property seized in drug busts and traffic stops.
Most states don’t want law enforcement agencies to profit so easily from such confiscations — they see it as a dangerous conflict of interest. For that reason, they have passed laws blocking seized property from going directly back to police, and many states designate seizures to be used for other purposes, such as education.
But a yearlong examination by The Kansas City Star reveals that police agencies in every one of more than two dozen states checked by the newspaper have used federal law enforcement to circumvent their own laws and keep most of that money for themselves.
The founding fathers left law enforcement to the states for good reason. Partly as a check on abusive centralized power of the Federal Government, and partly because law enforcement is, and should be, a local issue.
A report (pdf) from a Task Force of the American Bar Association on the Federalization of Criminal Law notes:
A lessening of citizens’ perception about their power to have an impact on critical crime
issues should be avoided. Confusion of state and federal authority can
leave citizens uncertain about who bears the responsibility for dealing
with crime, while at the same time dissipating accountability for one
governmental authority or the other to seriously confront the problem.
On the whole, state law is easier to modify (and so more easily
accommodates new local conditions) than is national legislation. Public accountability in the state and local segments of government is higher.
As a result, the movement of the crime debate to the federal level may
leave local citizens with the belief that they have less power to influence
the debate about the response to crime and therefore less control over
crime’s immediate impact upon them.
Or, as in the case in Colorado, less control over law enforcement itself, with the Federal government holding the strings of our own police officers.