With the death of two FBI agents in Sunrise Florida, the topic of using force against the police is once again in the public consciousness. This discussion is even more valuable in the aftermath of the death of Breonna Taylor due to a no-knock warrant. Which once again highlighted that no-knock orders are a risk to LEOs, the public and specifically the people who are targeted by warrants. The further context of distrust in the institutions of policing should include a discussion of what civilians can do to defend themselves from the police. It should go without saying that nothing in this piece should be considered legal advice, this is a layperson’s analysis of legal documents, court decisions, and local laws. This piece is also not encouraging the reader to injure law enforcement officers.
It is important to first establish the legal context of self-defense, which begins with the Second Amendment to the Constitution and to the intent of the founders of this country. Given the struggle that granted this country’s sovereignty, it is obvious that the founding fathers felt it was essential to democracy that the people have the means and rights to defend themselves against “tyranny.” Obviously, the founding fathers did not universally grant this right, and this piece does not claim the Constitution is an infallible document. The intention was valid, but we must also acknowledge that the rights granted by the Constitution were not, and never have been, universally granted to all citizens; rich white people have always had their rights respected while other groups of people have had theirs dismissed consistently. One of the groups who have specifically had their rights to self-defense held up above all else are the police.
Beyond the Second Amendment the right to individual self-defense has been reaffirmed up by many US Supreme Court decisions. The first of which is District of Columbia v. Heller, which states that the right to keep and bear arms is disconnected from service in a “well-regulated militia.” This was later confirmed and held as true in the context of state and municipal laws in McDonald v. City of Chicago. These decisions show that the state reads the second amendment as guaranteeing the right of self-defense for individuals.
Now that we understand that self-defense is legally enshrined in the USA, we can explore the intersection of self-defense and the police. In Bad Elk v. United States, the Supreme Court expands the right to legal self-defense to include the use of force against law enforcement officers executing an illegal warrant. To reiterate this is not legal advice, but reasonable belief that a warrant is unlawful may be enough to invoke Bad Elk v. US. The situation of serving a warrant with no announcement clearly does violate the Fourth Amendment and removes the individual right to verify that a warrant is lawful, this has already been set in stone by the Supreme Court in Wilson v. Arkansas and Miller v. United States. Therefore, no-knock warrants should be unlawful. Further justifying the invocation of Bad Elk in self-defense cases arising from their use or misuse. Forty years since their introduction by a senator’s aide we are still critiquing them in the same ways that people under Nixon were.
To further justify the right to self-defense against agents of the state we can return to a constitutional lens. When the word tyranny was used by a group of white men over two hundred years ago, they meant the actions of a government that did not respect the free will of the people. Specifically, the use of a standing army to quell dissent was particularly horrible in their opinion. In the context of 2021, and over eight months of active protest, we can see that the police are a tool of the state to quell dissent. This is made plainly obvious when federal agents have tear gassed schools in Portland but have treated right wing extremists who attempted to hold up the status quo at the cost of democracy with peaceful arrests. Another example is how police and the institutions behind them have reacted to Michael Forest Reinoehl and Forest Michael Machala shooting their political opponents in what they claim was self-defense. Reinoehl was not given the right to trial by a jury of peers while Machala was judged to be legally in the right by the police state without a trial or the consent of the people. These decisions were made based solely on their own political beliefs. Finally, it is worth noting that when the Constitution was written police did not exist and the military was the closest analog. It has even been argued quite convincingly that the equipment and role of the police is analogous to the very standing army that sparked the American Revolutionary War.
In the American ideal, no person is above the law. Therefore, even on an analysis of only state laws and the removal of Bad Elk or a constitutional interpretation as context; we can still see that using force against law enforcement should be legally protected. Almost all states define when, who, and against whom, self-defense can be used. Most of these definitions state that proportionate force is allowed when there is a threat of harm, armed agents of the state who have no accountability clearly present a mortal threat. There are obviously limitations on that right. For instance, it is generally accepted that the person deploying force should attempt to de-escalate the situation, but how can one de-escalate an armed SWAT team that is battering your door down? How can one de-escalate a mass of Federal Marshalls who open fire upon seeing you? It is also interesting to note that both the Commonwealth of Kentucky, and the State of Florida have statutory castle doctrines. The duty to retreat or de-escalate in those states is negated when force is used against an intruder in their home. Why then was Kenneth Walker held on higher charges for firing at intruders, lawfully and properly, than the police officers who killed Breonna Taylor?
It is also interesting to look at how BIPOC have had their ability to defend themselves robbed from them in the past. An often over cited example is the passage of the 1967 Mulford Act in California by a bipartisan coalition of local legislators. The Mulford Act directly targeted the community defense efforts of the Black Panther Party. By banning the open carry the state defanged the BPP’s cop watching patrols and forced those that wanted to act in self-defense to get concealed carry permits from the very state that oppressed them. At the time many concealed carry permits were issued solely on the discretion of local police, and California continues in that very tradition. Perhaps unbeknownst to the more liberal reader, the National Rifle Association threw its full weight behind the act.
More erased and subtle is the fact that it was not just the “militants” like Huey Newton, Malcolm X or Fred Hampton, were not the only activists in the civil rights movement pushing for self-defense to be normalized for non-whites. Martin Luther King Jr. had “an arsenal” of weapons at his disposal to protect himself and his family. Interestingly he was denied a concealed carry permit by the local police, even though he fulfilled all the legal requirements to be issued one. Once again, a law supported by the NRA was used to strip vulnerable people of the ability to defend themselves against assailants; let alone to defend themselves against the state.
Contemporarily we have many gun rights organizations that support arming vulnerable people and teaching them to defend themselves. Among them are groups like the Socialist Rifle Association, Armed Equality, the John Brown Gun Club, Redneck Revolt, the National African American Gun Association, and the Latino Rifle Association. Though these organizations provide a leftist take on gun rights organization, they obviously can not speak too loudly about defending oneself from the state, for fear of being labelled terrorist groups. However, they can and should point people towards the precedent set by the very founding of this country and many Supreme Court rulings.
Before speaking about self-defense against the police we must contend with the belief among police officers that civilians are liable to present and use lethal force against them at the drop of a hat. This belief is the root cause of why police are so likely to deploy disproportionate force murdering those that they are supposed to serve. It has also been used to further the militarization of police, hand in hand with politicians posturing about being tough on crime. We must deconstruct and destroy the dangerous behaviors that police officers perpetuate before we can think about expanding our definitions of self-defense. Programs like “Killology” must be ended, and every police officer who has taken the program should be removed from duty. Pacifying the police is a good half measure while we all work on how to abolish police as an institution.
Why police are considered a special class who are free to deploy lethal force but cannot have force deployed against them should be reexamined by the courts, and the fact that it has not is another example of the state perpetuating inequalities. There must also be an examination of how and why “accountability tools” such as body cameras are used to produce evidence against people for defending themselves, but rarely used to hold police accountable for the actions that cause these reactions. We have a right to ask these questions about our legal system even if the death of LEOs, or anyone, is an uncomfortable topic.
