March 25, 2011 in City

Shawn Vestal: WSP’s request a far cry from Colonial-era tyranny

By The Spokesman-Review
 

There was a time in this country, before it was this country, when the king’s customs agents carried general warrants allowing them to search anyone, anytime, anywhere, and take anything they wanted.

And then there is today, when the specter of tyranny is hoisted over the pettiest grievances.

So the molehills grow, as they did this week when three dozen lawmakers, led by Spokane Valley Republican Matt Shea, complained about a letter the Washington State Patrol sent to gun dealers, requesting information about sales of a particular kind of rifle.

But first, a very little history. In the Colonial era, agents of the British government carried “writs of assistance,” open-ended search warrants that allowed them to enter homes, seize goods and money, and search for contraband.

James Otis Jr. – a man who ought to be an American icon – argued of the writs: “Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder any one within the realm.”

Otis was a Harvard-educated lawyer often credited with helping to ignite the fire that led to the American Revolution, primarily through opposition to writs of assistance. Representing a group of Boston merchants, Otis delivered a five-hour argument before the Superior Court of Massachusetts in 1761.

“I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is,” he said. “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.”

Otis lost that case, but he won a lot of hearts and minds. Among those in the audience that day was John Adams, who later wrote: “Then and there the child Independence was born. In fifteen years, that is in 1776, he grew up to manhood, and declared himself free.”

The framers of the Constitution adopted the Fourth Amendment as a prohibition against general warrants – establishing the principle that the government cannot issue warrants to enter our homes, take our stuff, and otherwise limit our freedoms without probable cause and without “particularly describing the place to be searched and the persons or things to be seized.”

It was a revolutionary stand for individual freedom.

It’s a long, long way from James Otis and the writs of assistance to Matt Shea and the poorly worded letter.

The WSP sent a letter to gun dealers March 9, asking for information about all sales of AR-15s since July, including personal information about buyers. The agency is investigating the disappearance of one of its rifles.

“This appears to be a massive fishing expedition reminiscent of colonial-era ‘general warrants,’ in disregard of the constraints imposed by the Constitutions of the United States and Washington State,” Shea wrote in a letter to WSP Chief John Batiste.

Except this is nothing like the Colonial-era general warrants. It was a letter, not a soldier at the door. It was a request, not a demand. Not only was it not a general warrant – it wasn’t a warrant of any kind. Judges issue those.

“In order to conduct a thorough investigation,” the letter said, “Detective Gundermann is requesting information.”

That word – requesting – didn’t sink in. Hundreds of gun dealers, lawmakers and citizens complained to the WSP.

“From a civil liberties standpoint, it should have been worded differently,” Shea said.

The WSP acknowledged it should have been clearer that this was not a Colonial-era general warrant.

“It was a request,” said spokesman Bob Calkins. “We’re not keeping a registry. We acknowledge we sent a letter that wasn’t as clear as it could have been, and we clearly hit a nerve.”

Yes, let’s all agree on the insufficiency of the wording.

Shea sent an email alert assuring people that there was “no legal requirement to reply.” Did he think the reaction was a bit over the top? A bit paranoid?

“I wouldn’t call it paranoia,” Shea said. “I think there’s concern any time the state is coming to gather information when it doesn’t seem like it’s justified.”

Shea asked if a burglary in someone’s neighborhood would make it OK for police to search every home on a block. Obviously not. But it would make it OK for police to simply ask every homeowner on the block for information.

In fact, that’s what police officers investigating a crime do. They look for witnesses. They ask people with information to share it. Lots of times, people actually will.

Shea wondered why the WSP didn’t simply ask for information about the specific gun, with the serial number, rather than issue such a broad request.

Which is a good question. The WSP has a good answer.

“Guns can be broken down into parts that don’t have serial numbers,” Calkins said. “We’re looking for transactions that involve … parts of AR-15s.”

It’s enough to make you think that all this flap and noise is … what’s the word? Unwarranted?

Shawn Vestal can be reached at (509) 459-5431 or shawnv@spokesman.com.


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