Handguns don't kill people, Department of Justice does

Coulter, Ann

In June of 1997, Tony Leongs, a convicted felon caught with a handgun illegally in his possession, was returned to the streets because the Department of Justice refused to enforce the law. Not the law that prohibits convicted felons from owning guns, though that was the incidental effect.

The unenforced law is Section 3501 of Title 18, enacted two years after the Supreme Court decided Miranda v. Arizona as part of the Omnibus Crime Control Act of 1968.

Section 3501 eviscerated the worst of the Warren Court era pro-criminal decisions. Of the many dumb decisions rendered by the Warren Court, it is improbable that any other single ruling did more to benefit criminals than the rigid exclusionary rule invented by the court in Miranda.

Naturally, therefore, the Clinton Department of Justice has refused to use it.

In the case of the armed felon, United States v. Leong, the defendant was stopped for speeding. With the consent of the defendant, the police searched the car and found a handgun in a plastic holster on the floor behind the driver's seat. Since there were three other passengers in the car, the gun could have belonged to any of them. The cop asked the four who owned the gun and Leong said it was his. He had not been read his Miranda rights first.

Without Leong's admission that the gun was his, there was no case. Section 3501 would have allowed Leong's admission to be used as evidence. So important was Section 3501 to the outcome of the Leong case, that the court ordered the Department of Justice to at least take a position on the law.

Presumably as part of its continuing effort to defend the office of the President, the Department of Justice refused to defend this anti-crime measure. What with there being a felon in the Oval Office, there's no need to start aggressively enforcing the criminal laws now.

Rather, Justice took the position that it would prefer that a convicted felon charged with illegal possession of a firearm go free than to use Section 3501 to get into evidence Leong's admission that the gun was his.

In fact, Clinton's Justice Department has expressly disallowed federal prosecutors from raising Section 3501 as a defense to un-Mirandized confessions. The preposterous rational for this gag rule is that until the Supreme Court overrules Miranda, "the United States is not free to urge the lower courts" to "rely on Section 3501." Of course, if Section 3501 is never raised in the lower courts, there is no earthly way for the Supreme Court to "overrule Miranda."

Section 3501 did muscle its way into a federal court this past year. But no thanks to the branch of government charged with enforcing the laws.

On behalf of the Washington Legal Foundation, law professor Paul Cassell raised Section 3501 in an amicus brief on behalf of the government in a case called United States v. Dickerson.

Charles Dickerson had been involved in seven bank robberies and confessed to the police-they said after they read him his Miranda rights. Dickerson said the police read him his Miranda rights only after he had confessed. For reasons that remain mysterious, the district court credited the word of the bank robber over that of several policemen.

Nonetheless, the court expressly found that Mr Dickerson gave the confession voluntarily, of his own free will. But Mr. Dickerson's voluntary confession was inadmissible under Miranda.

Prof. Cassell argued that the confession was admissible under Section 3501, a federal law on the books, never held unconstitutional. Again, the 4th Circuit Court of Appeals pressed Clinton's Justice Department for an opinion on the law. The Department of Justice proceeded to join forces with a serial bank robber to argue that Section 3501 is unconstitutional, a somewhat unusual posture for the branch of government charged with taking "Care that the Laws be faithfully executed" (U.S. Const., Art.II, 3).

Nonetheless despite the best efforts of Clinton's Department of Justice to undermine the law-the court upheld Section 3501 on Feb. 8, 1999, and the 4th Circuit refused to review the decision in an en banc appeal a few months later.

In refusing to suppress Mr. Dickerson's confession, the court had pointedly noted: "Fortunately, we are a court of law and not politics. Thus, the Department of Justice cannot prevent us from deciding this case under the governing law simply by refusing to argue it."

For the Department of Justice to refuse to defend-to say nothing of arguing against-enforcement of a law duly enacted by the United States Congress, it is required to have concluded that no reasonable argument can be made for the law. Not that the law may be unconstitutional or might plausibly, even probably, be held unconstitutional. There must be no reasonable argument that can be marshaled in the law's defense.

In the past few years, for example, the Department of Justice has argued for the constitutionality of such laws as: the Religious Freedom Restoration Act, the Communications Decency Act, the line item veto, the Religious Freedom Restoration Act, and the Brady Act. All were struck down by the Supreme Court.

The solicitor general, who argues on behalf of "the United States" before the Supreme Court, is not a legislator elected by the public to write laws. He is appointed by the President to enforce the laws the elected legislators in Congress enact. It is not his job to pass on the wisdom of the laws Congress enacts-or even their constitutionalityunless a measure is so laughably unconstitutional that no reasonable argument on its behalf can be made.

If the solicitor general could capriciously refuse to enforce laws, he would be the most powerful man in the United States government. He would have unilateral veto power.

Indeed, the attorney general is required by law to notify the United States Congress whenever the department will not defend the constitutionality of a federal statute. Then Congress can bypass the Department of Justice and hire its own lawyers to defend its laws.

But enforcing the laws is not really in Congress's job description. That is why in the confirmation hearings for Seth Waxman, Clinton's solicitor general, Sen. Orrin Hatch asked him if the would follow the same standard as the Reagan and Bush Administrations, that "the attorney general is bound to defend the constitutionality of all acts of Congress unless no reasonable argument can be made in support"?

Waxman said he would and that "[T]he solicitor general should defend that law against constitutional challenge whenever reasonable arguments can be made in support of its constitutionality, except in the rarest instances, such as where the statute violates the constitutional separation of powers or directly conflicts with a Supreme Court ruling of constitutional dimension."

Not only does Section 3501 not conflict with a Supreme Court ruling "of constitutional dimension" (one wonders how that differs from a Supreme Court ruling "on the Constitution") but the Supreme Court has repeatedly stated that a law much like Section 3501 would be constitutional.

Indeed, a certain volatile Italian on the Supreme Court has harangued the government to raise Section 3501 in the next Miranda case.

Miranda Not Constitutional Rights

Moreover, the Supreme Court has repeatedly, exhaustively, in innumerable cases, held that the Miranda warnings are "not themselves rights protected by the Constitution." See, e.g., Michigan v. Tucker, and approximately three thousand other cases. The court has expressly held that the warnings are "not constitutional in character"-Withrow v. Williams, which must be something like being a ruling not "of constitutional dimension."

What the 5th Amendment actually states, in relevant part, is this: "nor shall [any person] be compelled in any criminal case to be a witness against himself." All that the 5th Amendment requires of criminal confessions is that they be voluntary.

Because Congress had established no rules for determining whether a confession was voluntary-and because Supreme Court justices, like Seth Waxman, really want to be congressmen without the accountability-the Supreme Court wrote some up with the Miranda warnings in a 5-to4 decision.

But even the Supreme Court has made clear that the warnings are not the only indicia of voluntariness. Rather they are "a series of recommended procedural safeguards" (Davis v. United States). The court has described the Miranda warnings as mere "prophylactic rule" (Connecticut v. Barrett), and liberals, of all people, should understand that there are many varieties of prophylactics in the rainbow.

The prophylactic adopted by Congress a few years after the Miranda ruling is Section 3501. That law directs courts to look at all the evidence, including various statutorily enumerated factors, and determine whether or not the confession was voluntary. The 5th Amendment to the Constitutionalong with the Supreme Court's interpretation of the 5th Amendment, the provision underlying Miranda-is not, apparently, enough of a reasonable argument for Clinton's Department of Justice. Maybe they're waiting for the White House interns to weigh in.

Three federal courts have weighed in. All three have upheld it-the 10th Circuit Court of Appeals in United States v. Crocker, a district court in Salt Lake City in United States v. Rivas Lopez, and most recently, of course, the entire 4th Circuit Court of Appeals in Dickerson.

Reno Lies About History

Atty. Gen. Janet Reno has defended the department's decision to refuse to enforce the law by making the "everybody does it" argument invoked so successfully throughout the Clinton era. In a press conference a few days after Dickerson was handed down, the attorney general said, "In this administration and in other administrations preceding it, both parties have reached the same conclusion"-i.e., that Section 3501 is unconstitutional.

Here the attorney general was branching out for the Clinton Administration, from lies "just about sex," and "just about Red Chinese espionage," to lies "just about previous administration's policies."

In 1969, then Atty. Gen. John Mitchell issued a highly publicized directive to all federal prosecutors allowing them to raise Section 3501 and testified before Congress-about the policy. It led to the Crocker decision in the 10th Circuit mentioned above and the directive remained in effect through at least 1986.

In 1986, the Reagan Justice Department issued a 120page report supporting the use of Section 3501 in appropriate cases. Atty. Gen. Meese ordered department lawyers to find an appropriate test case.

During the Reagan and Bush Administrations, Section 3501 was in fact raised in several good cases, but unfortunately, the courts ultimately found no need to reach the issue.

And, to raise Section 3501, you do need a proper test case, a case in which 1) the Miranda requirements would keep the criminal's confession out, 2) Section 3501 would allow the confession in, and 3) there is not enough evidence to convict the criminal without the Section 3501 confession.

The Clinton Administration has had several such cases. dropped right into its lap. And the response from Justice has been to argue aggressively that the law is unconstitutional and to lie about prior administrations' policy with regard to Section 3501. Not for the first time, the attorney general has given demonstrably false information, raising the age-old question: Is Reno as big a liar as her boss, or just stupid?

As veteran Supreme Court reporter Lyle Denniston charitably put it, "Reno's perception. . . that this has always been the federal govemment's view is mistaken."

Someone ought to tell Reno she can ease up on refusing to enforce Section 3501. It isn't very likely that the President is ever going to slip and tell the truth even if the police forget to read him his Miranda rights.

Copyright Human Events Publishing, Inc. Jun 4, 1999
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