Elian & guns
masinter at NOVA.EDU
Thu Apr 27 10:02:14 PDT 2000
On Wed, 26 Apr 2000, Randy Barnett wrote:
> I have not heard any allegation by Janet Reno or anyone else that the
> government was in possession of reliable information that the Gonzoles
> family and associates were likely to use firearms to resist the government.
> (Indeed, we are now learning that government agents knew in advance that
> there were no guns present but this is not relevant to my question.)
I do not understand the propriety of the government's actions to depend
upon "reliable information that the Gonzoles (sic) family and associates
were likely to use firearms to resist the government." Reliable evidence
that they intended to resist with force (see the many statements of Lazaro
Gonzales and the widely reported statement of Marisleysis Gonzales), that
associates possessed firearms while at the family home, and that a large,
angry crowd had vowed to resist seem to me more than sufficient
justification. I cannot find "likely to use firearms" as a standard
anywhere. Tennessee v. Garner does not set the bar so high for the use of
deadly force, much less the possession of deadly force.
Police officers carry weapons as a matter of course. They do not lose
that right when executing warrants against people who have vowed forcible
resistance in the presence of a crowd which has threatened violence.
> The questions Michael's comment made me think of are these:
> Given the high rate of legal gun ownership in America--let's use Eugene's
> figure of between 35-50% of all households--does the government now claim a
> legally justified power to execute a search warrant by using military force
> of the sort employed in Miami to enter *any* house of its choosing at its
> discretion given that the odds may be 50-50 that a gun will be present? Or
> any house in which it believes guns are legally (or illegally) present which
> is to say 35-50% of all homes? Does a citizen's choice to own legally a
> firearm, standing alone, now justify the use of military force and forced
> entry into that citizen's home?
Forced entry is permissible following the issuance of a warrant if, after
knocking and announcing, the residents refuse entry. This has been true
since time out of mind.
I do not understand the government to have used military force. The
agents carried semiautomatic assault rifles and wore bulletproof vests and
helmets with visors; current law permits private citizens to purchase
similar weapons and clothing throughout the United States. I saw no
tanks, armored personnel carriers, or military ordinance. Police in this
area routinely conduct raids with assault rifles; the days of a couple of
officers with revolvers are a quaint piece of history in most major
One important difference between assault rifles and semiautomatic sidearms
lies in the visibility of the former; the bullets fired from both are
quite deadly. Law enforcement officers with whom I have spoken are
unanimous in their belief that assault rifles deter resistance; they
intimidate, making violence and gunfire less rather than more likely.
One example may be the reaction of Donato Dalrymple, the man in the
picture holding the boy. The sight of the gun was enough to prevent a tug
of war; he simply went slack as the agent appeared and demanded the boy.
Had the agent appeared unarmed, a physical struggle might well have
ensued. Given the concerns over crowd violence, the judgment that speed
was critical seems reasonable; the concern that a child could be injured
in a tug of war also seemed reasonable.
Finally, it is worth remembering that nobody would have entered the house
if the family had opened the door and handed over the child after the
agents knocked and announced their presence. The family has never claimed
that they did not know who was at the door or why they were there; rather,
they have made clear that they were awake and knew exactly who was there.
Their own actions in pulling a reporter into the house, locking and
barricading the front door, and locking the bedroom door make clear that
they intended to resist lawful authority for as long as possible, knowing
that a crowd would eventually try to come to their assistance.
> In answering these questions, we must distinguish between the force that may
> be warranted for crowd control under the circumstances in Miami and the
> force that is justified to enter *the home* of a person believed or known to
> possess legally a firearm to execute a search warrant. We must also
> anticipate that an affirmative answer to the question would, if widely
> known, greatly increase the political resistance to gun registration laws
> which would provide law enforcement with the information upon which to
> justify their use of military force.
As I said, fear of firearms inside the home was only a small part of the
concern justifying the display (not use) of weapons within the house.
But do not forget that police officers who enter dwellings in far less
threatening circumstances already carry weapons as a matter of course.
We do not live in Great Britain; an unarmed police officer in this nation
is almost an oxymoron.
Michael R. Masinter 3305 College Avenue
Nova Southeastern University Fort Lauderdale, Fl. 33314
Shepard Broad Law Center (954) 262-6151
masinter at nova.edu Chair, ACLU of Florida Legal Panel
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