Boston Police's End Run Around The Constitution

It is all too true that when it comes to questions of constitutional rights, the devil (or the angel, as the case may be) can be in the details. This seems the case with the new Boston Police Department initiative that would allow police officers to visit homes where they receive a tip that a minor might have hidden a gun, or where the parent suspects such and is willing to ask for police intervention. The police would ask the parent to sign a waiver granting them permission to search the home and take the gun away. At first glance the program struck me as laudable in its creativity and fully constitutional because of its voluntary nature, and because of the assurances by the police that no one would be prosecuted for possession of the gun. But upon closer inspection, there are too many unanswered questions about how this program would work in practice, and the ACLU of Massachusetts should be commended for taking the lead in raising these complex questions.

Perhaps the single greatest flaw with the BPD program is that it does not offer unconditional amnesty for firearms found, although the Boston Globe article on the program seems to suggest otherwise. Instead, as Boston NOW has more clearly articulated, the department reserves the right to prosecute if a ballistics test on any gun found indicates that the weapon was used in an unsolved crime.  One can only imagine the grief and regret a parent would feel if his or her child is prosecuted and sent to jail because, in the hopes of protecting the child, the parent encourages police to enter the home and seize a firearm. Similarly, police officials have not done an adequate job of reassuring homeowners that they will turn a blind eye to evidence of any other illegal activity they may discover during their search, such as the presence of illegal drugs. It is absolutely essential that parents understand that prosecution can indeed follow for anything and everything except the actual possession of a gun and that they have a constitutional right to deny police entrance. If parents are being asked to waive their constitutional protection against search and seizure, then that waiver has to be both knowing and voluntary.

Long experience causes me to lack sufficient confidence in Boston Police to make clear that homeowners have a right to deny a search request and to avoid intimidation when arriving on a doorstep. I’m skeptical that parents who do waive the privacy rights attaching to the home will have done so knowing the full implications of such a waiver. This sort of program, which gives police an end run around the age-old search warrant mandate, could become frequently abused because it is so much more convenient and expedient than obtaining a warrant. After all, an anonymous tip is not a sufficient basis for obtaining a search warrant, and so the police should be willing, for the public safety, to grant unconditional assurances that whatever is found in the house will not be used as the basis of a prosecution.

And so, while at first glance this “voluntary” search program has a certain allure to it, Harvard Law Prof Charles J. Ogletree, Jr. is probably correct when he noted in the Globe that “this is a decision that, if approved, the community will come to regret it.”

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