04/27/00
Excessive Force
by Clifford F. Thies


The 4th Amendment of the U.S. Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Regardless of how one feels about the reunification of Elian Gonzalez with his father Juan Gonzalez, the paramilitary raid of the house in Miami in which Elian was staying should be disturbing.

Supposedly, the use of force was justified because there was "evidence" that there were guns in the house and an unruly crowd outside. Both allegations are now known to have been incorrect. Again referring to the 4th Amendment, a warrant can be issued "upon probable cause, supported by oath or affirmation."  What was the probable cause that there were guns in the house, and who swore to it? Similarly, what was the probable cause of an unruly crowd?

The fact that people are vigorously pursuing in the courts what they believe to be legal does not constitute probable cause.

The fact that people exercise their 1st Amendment rights to peaceably assemble does not constitute probable cause.

The fact that people are members of an ethnic minority does not constitute probable cause.

That the boy in now reunited with his father, on U.S. soil, and that orderly visits are being arranged with outsiders, including the Miami relatives, is something everybody can be happy about. But the end doesn't justify the means.

As Al Gore and George W. Bush both say, this matter should have been addressed by a family court, with the sole criterion being the best interests of the child.

It seemed obvious to me that the best interests of the child was not to reunite him with his father in Cuba, or at the Cuban diplomatic mission to the United States, but for the father to present himself, on U.S. soil, to the family court. Then, it also seemed obvious to me, the father, not being manifestly unfit, would have been awarded custody. May I point out that the U.S. Court of Appeals forbade the government from turning Elian over to the father while the father was on Cuban soil?

After the U.S. Court of Appeals made its preliminary rulings, the Attorney General and the Miami relatives were agreed that the child should be turned over to the father on U.S. soil, and were negotiating how this would take place. I fault both sides for not resolving the details peacefully and, thus, putting the boy, themselves, the people demonstrating their support, and the law enforcement officers involved into jeopardy.

It is true, as George Washington said, "Government is not persuasion. Government is force. Like fire, it is a powerful servant, and a fearful master." There are times when force must be employed. But the use of force should be restrained to what is appropriate to the circumstances involved.

After the raid, an assistant to Janet Reno said the Justice Department should be judged according to the results since nobody was hurt. They didn't say that after Waco.

And, now, what about Elian? First, his petition for asylum status will be considered. The court warned those involved not to jump to any conclusions. Assuming, however, that the court grants asylum, the matter would be then turned over to family court (where the Attorney General, using the discretion she is allowed under the law, should have referred this matter in the first place). Assuming, at that point, that his father
is granted custody, it will up to Juan Gonzalez.

Will Juan Gonzalez, standing on U.S. soil, seeing that in our country "imperfect though it may be," even the Attorney General of the United States is subject to law, and that the rights of the people are protected by our Constitution, choose himself to seek asylum or return to Cuba?

That's the funny thing about freedom. You can't force people to be free.

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CLIFFORD F. THIES is a Professor of Economics and Finance at Shenandoah University
and National Chairman of the Republican Liberty Caucus.