“The Constitution is not neutral. It was designed to take the government off the backs of the people.”—Justice William O. Douglas

Justice in America makes less sense with each passing day.

A Michigan couple that has been raising chickens in their backyard as a source of healthy food for their family could get up to 90 days in jail for violating a local ban on backyard hens. A Kentucky prison guard who was charged with 25 counts of sexual abuse against female inmates, trafficking controlled substances, and 50 counts of official misconduct walks away with no jail time and seven years’ probation. A 53-year-old Virginia man is facing 20 years in jail for kidnapping, despite the fact that key evidence shows him to be innocent and his accuser a liar, yet the courts claim they’re unable to do anything about it. Meanwhile, thanks to the U.S. Supreme Court’s recent refusal to hear the case of Jones v. U.S., judges can now punish individuals for crimes of which they may never have been convicted or even charged.

With every ruling handed down, it becomes more apparent that we live in an age of hollow justice, with government courts, largely lacking in vision and scope, rendering narrow rulings focused on the letter of the law. This is true at all levels of the judiciary, but especially so in the highest court of the land, the U.S. Supreme Court, which is seemingly more concerned with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution.

Given the turbulence of our age, with its police overreach, military training drills on American soil, domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions, and corporate corruption, the need for a guardian of the people’s rights has never been greater.

Yet when presented with an opportunity to weigh in on these issues, what does our current Supreme Court usually do? It ducks. Prevaricates. Remains silent. Speaks to the narrowest possible concern. More often than not, it gives the government and its corporate sponsors the benefit of the doubt. Rarely do the concerns of the populace prevail.

In this way, preoccupied with their personal politics, cocooned in a priggish world of privilege, partial to those with power, money and influence, and narrowly focused on a shrinking docket (the court accepts on average 80 cases out of 8,000 each year), the justices of the current Supreme Court rarely venture beyond their rarefied comfort zones.

Every so often the justices toss a bone to those who fear they have abdicated their allegiance to the Constitution. In Riley v. California, for instance, a unanimous Court ruled that police need warrants in order to physically search the cellphones of people they arrest. Even in that instance the victory rang hollow to those who understand that government agents, equipped with military-grade surveillance equipment, don’t need physical access to our phones in order to know who we’ve been talking to or texting and what we’ve been saying.

A Government of Wolves book coverToo often, however, as I document in A Government of Wolves: The Emerging American Police State, the Supreme Court tends to march in lockstep with the police state.

In recent years, for example, the Court has ruled that police officers can use lethal force in car chases without fear of lawsuits; police officers can stop cars based only on “anonymous” tips; Secret Service agents are not accountable for their actions, as long as they’re done in the name of security; citizens only have a right to remain silent if they assert it; police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside; police can forcibly take your DNA, whether or not you’ve been convicted of a crime; police can stop, search, question and profile citizens and non-citizens alike; police can subject Americans to virtual strip searches, no matter the “offense”; police can break into homes without a warrant, even if it’s the wrong home; and it’s a crime to not identify yourself when a policeman asks your name.

The cases the Supreme Court refuses to hear, allowing lower court judgments to stand, are almost as critical as the ones they rule on. Some of these cases have delivered devastating blows to the rights enshrined in the Constitution. By remaining silent, the Court has affirmed that: legally owning a firearm is enough to justify a no-knock raid by police; the military can arrest and detain American citizens; students can be subjected to random lockdowns and mass searches at school; and police officers who don’t know their actions violate the law aren’t guilty of breaking the law.

What a difference nine people can make.

Contrast the Roberts Supreme Court and its occupants’ preoccupation with personal politics, its cocooned, priggish world of privilege, its partiality to those with power, money and influence, and its narrowly focused on a shrinking docket (the court accepts on average 80 cases out of 8,000 each year) with the Warren Court (1953-1969), when Earl Warren served as Chief Justice, alongside such luminaries as William J. Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter and Thurgood Marshall.

The Roberts Court’s decisions in recent years, characterized most often by an abject deference to government authority, military and corporate interests, have run the gamut from suppressing free speech activities and justifying suspicionless strip searches and warrantless home invasions to conferring constitutional rights on corporations, while denying them to citizens.

The Warren Court, on the other hand, handed down rulings that were instrumental in shoring up critical legal safeguards against government abuse and discrimination. Without the Warren Court, there would be no Miranda warnings, no desegregation of the schools and no civil rights protections for indigents. Yet more than any single ruling, what Warren and his colleagues did best was embody what the Supreme Court should always be—an institution established to intervene and protect the people against the government and its agents when they overstep their bounds.

Justice Douglas, who served on the Supreme Court for 36 years, was particularly vocal in his belief that Americans have a right to be left alone (“The right to be let alone is indeed the beginning of all freedom”).

Considered the most “committed civil libertarian ever to sit on the court,” Douglas was frequently controversial and far from perfect (he was part of a 6-3 majority in Korematsu vs. United States that supported the government’s internment of American citizens of Japanese descent during World War II.)

Even so, his warnings against a domineering, suspicious, totalitarian, police-driven surveillance state resonate still today. They stand as a potent reminder that while the technology and social concerns of Douglas’ day have undergone dramatic transformations in our time, the rights we are struggling to safeguard remain the same, as do the threats posed by the government.

Then, as now, government surveillance was invasive and unregulated. As Douglas observed:

We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government. The aggressive breaches of privacy by the Government increase by geometric proportions. Wiretapping and “bugging” run rampant, without effective judicial or legislative control. Secret observation booths in government offices and closed television circuits in industry, extending even to rest rooms, are common. Offices, conference rooms, hotel rooms, and even bedrooms are “bugged” for the convenience of government.

Although the Roberts Court has so far remained silent on the NSA’s domestic surveillance program, Douglas had plenty to say about “the privacy of our citizens and the breach of that privacy by government agents”:

Once electronic surveillance … is added to the techniques of snooping which this sophisticated age has developed, we face the stark reality that the walls of privacy have broken down and all the tools of the police state are handed over to our bureaucracy on a constitutional platter… The dangers posed by wiretapping and electronic surveillance strike at the very heart of the democratic philosophy. A free society is based on the premise that there are large zones of privacy into which the Government may not intrude except in unusual circumstances…

Here’s Douglas on the dangers posed by electronic surveillance:

[W]iretapping and electronic “bugging” invariably … lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrants the Fourth Amendment was intended to prohibit… Such practices can only have a damaging effect on our society.

Douglas on the ramifications of indiscriminate government surveillance:

Once sanctioned, there is every indication that their use will indiscriminately spread. The time may come when no one can be sure whether his words are being recorded for use at some future time; when everyone will fear that his most secret thoughts are no longer his own, but belong to the Government; when the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone. If a man’s privacy can be invaded at will, who can say he is free? If his every word is taken down and evaluated, or if he is afraid every word may be, who can say he enjoys freedom of speech? If his every association is known and recorded, if the conversations with his associates are purloined, who can say he enjoys freedom of association? When such conditions obtain, our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished.

Douglas would undoubtedly have had a lot to say about the NSA’s efforts to get the country’s “biggest spy center” in Bluffdale, Utah, fully operational, as well as government data collecting programs such as MAINWAY. Here’s his take on government data repositories on citizens:

The dossiers on all citizens mount in number and increase in size. Now they are being put on computers so that by pressing one button all the miserable, the sick, the suspect, the unpopular, the offbeat people of the Nation can be instantly identified. These examples and many others demonstrate an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen—a society in which government may intrude into the secret regions of man’s life at will.

Perhaps the greatest difference between Justice Douglas and his contemporaries and those who occupy the bench today can be found in his answer to a government that refuses to listen to its citizen or abide by the rule of law. “We must realize that today’s Establishment is the New George III,” noted Douglas. “Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is also revolution.”

TRENTON, N.J.—Attorneys for The Rutherford Institute presented arguments today to the Supreme Court of New Jersey challenging the application of the state’s “hate crime” law against a town maintenance worker who committed a workplace prank against an African-American co-worker. Although David T. Pomianek was acquitted of charges that he acted with racial bias when he playfully locked a fellow worker in a storage area and joked about it, he was found guilty under provisions of the state’s bias intimidation law, which elevates a petty offense to a hate crime if the alleged victimbelieves he or she was targeted because of bias. In an amicus curiae brief filed in January, attorneys for The Rutherford Institute asked the New Jersey high court to declare the statute wholly invalid in violation of the First Amendment.

“Criminalizing anyone’s speech or thoughts is an egregious violation of our First Amendment rights,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “If the First Amendment means anything, it means that individuals have the right to disagree and speak freely even when the speech may be controversial, politically incorrect or in jest.”

In April 2007, David T. Pomianek and a co-worker with the Township of Gloucester Public Works Department allegedly lured an African-American co-worker into a storage cage 17 feet off the ground in the township’s Public Works building, locked the cage for several minutes and remarked, “You throw a banana in the cage and he goes right in.” The incident was described by other workers as a “prank” that had been played on other employees and no physical harm resulted. Nevertheless, Pomianek was charged with bias intimidation for causing his co-worker “to be intimidated because of race, color, national origin or ethnicity” under New Jersey Statute § 2C:16-1, which is punishable by imprisonment for up to 18 months and a fine of up to $10,000.

Although a jury acquitted Pomianek of targeting the co-worker based on his race, it convicted him under provisions of the state’s bias intimidation law which essentially render an act a hate crime if the victim perceives it was motivated by race. Pointing out that the only so-called evidence of racial bias in Pomianek’s case related to his statement during the prank that “you throw a banana in the cage and he goes right in,” Rutherford Institute attorneys argue that New Jersey’s bias intimidation statute unconstitutionally punishes speech because even if Pomianek’s words were found to be “politically incorrect” and insensitive, expression cannot be punished or suppressed merely because others take offense to it. Moreover, the Institute’s brief also points out that the effect of the statute is to impose “strict criminal liability” on persons, making them guilty of a crime regardless of their intent to cause intimidation or to act on the basis of improper bias. Finally, Institute attorneys argue that the hate crime law violates the constitutional guarantee to due process because it bases liability on the inner beliefs and thoughts of the alleged victim and an alleged offender cannot have the kind of fair notice that conduct might be criminal in violation of a fundamental requirement of due process.

The Rutherford Institute’s arguments before the Supreme Court of New Jersey were presented by attorney Taryn Weiss of Westmont, N.J.

WASHINGTON, DC — Writing for the New York Times, journalist Adam Liptak draws attention to the U.S. Supreme Court’s inconsistencies when it comes to First Amendment jurisprudence (“The First Amendment’s Limit: The Supreme Court’s Plaza,” Oct. 13, 2014), especially when it relates to expressive activity on the Supreme Court plaza as is in the case of Hodge v. Talkin, et al., a First Amendment case being litigated by Rutherford Institute attorneys. As Liptak points out in his analysis of the Hodge case, “The First Amendment is strong medicine, the Supreme Court keeps telling us, and it even requires vulnerable people to listen to things they do not want to hear… But the Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.”

Rutherford Institute attorneys filed the First Amendment lawsuit on behalf of Harold Hodge, who was arrested for violating a 60-year old federal ban which broadly makes it unlawful to display any flag, banner or device designed to bring into public notice a party, organization, or movement while on the grounds of the U.S. Supreme Court. At the time of his arrest, Hodge was standing silently in front of the U.S. Supreme Court on a snowy day wearing a sign voicing his concerns about police brutality against African-Americans and Hispanics. In response to the Institute’s legal challenge of the ban on expressive activity as facially unconstitutional, District Court Judge Beryl L. Howell subsequently struck down the law, declaring it to be “repugnant” to the Constitution and “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” Within days of Judge Howell’s ruling, the marshal for the Supreme Court—with the approval of Chief Justice John Roberts—issued even more strident regulations outlawing expressive activity on the grounds of the high court, including the plaza. Rutherford Institute attorneys continue to litigate the Hodge case, which is making its way through the courts on appeal.

The Rutherford Institute’s brief in Hodge v. Talkin is available at www.rutherford.org.

“The great irony in this case is that the institution violating Harold Hodge’s First Amendment rights is the very same one that is entrusted with safeguarding those rights—the U.S. Supreme Court,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Unfortunately, the Court’s logic seems heavily weighted in favor of the elite. As Adam Liptak so accurately pointed out in his New York Times piece: ‘It seems that people with power or connections can use the plaza. Mr. Hodge, who sought to call attention to police brutality, cannot.’”

On January 28, 2011, Harold Hodge quietly and peacefully stood in the plaza area near the steps leading to the United States Supreme Court Building, wearing a 3’ X 2’ sign around his neck that proclaimed: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” Hodge was approached by a police officer who informed him that he was violating the law and issued him three warnings to leave the plaza. Hodge refused, was handcuffed, and placed under arrest for violating 40 U.S.C. § 6135. Affiliate attorney Jeffrey Light is assisting The Rutherford Institute in its defense of Hodge’s First Amendment rights.

“It’s been over five months since the night a SWAT team broke into the house in which we were staying…We were staying with relatives and my whole family was sleeping in one room. My husband and I, our three daughters and our baby (nicknamed “Baby Bou Bou”) in his crib. Dressed like soldiers, they broke down the door. The SWAT officers tossed a flashbang grenade into the room. It landed in Baby Bou Bou’s crib, blowing a hole in his face and chest that took months to heal and covering his entire body with scars…

“Doctors tell us that my son will have to have double reconstructive surgeries twice a year, every year for the next 20 years… [I]n five short months our family has taken on nearly $900,000 in medical bills, some of which have now gone into collections… After initially offering to cover the medical expenses, the county has since refused to cover any of our medical costs, all of which would never have happened if the SWAT team hadn’t broken into the home.”—Alecia Phonesavanh

Who pays the price for the police shootings that leave unarmed citizens dead or injured, for the SWAT team raids that leave doors splintered, homes trashed, pets murdered, and family members traumatized and injured, if not dead?

I’m not just talking about the price that must be paid in hard-earned dollars, whether by taxpayers or the victims, in attempting to restore what was vandalized and broken by police. It’s also the things that can’t be so easily calculated to a decimal point: the broken bones that will never quite heal right, the children’s nightmares at night, the uneasy sleep, the broken family heirlooms, the loss of faith in a system that was supposed to serve and protect you, the grief for loved ones whose lives were cut short.

Baby Bou Bou may have survived the misdirected SWAT team raid that left him with a hole in his face and extensive scars on his body, but he will be the one to pay the price for the rest of his life for the SWAT team’s blunder in launching a flashbang grenade into his crib. And even though the SWAT team was wrong about the person they were after, even though they failed to find any drugs in the home they’d raided, and even though they may have regretted the fact that Baby Bou Bou got hurt, it will still be the Phonesavanh family who will pay and pay and pay for the endless surgeries every year to reconstruct their son’s face as he grows from toddler to boy to teenager to man. Already, they have racked up more than $900,000 in medical bills. Incredibly, government officials refused to cover the family’s medical expenses.

Photo Via Ken Fager / Flickr

Photo Via Ken Fager / Flickr

That is just one family’s experience, the price they must pay for living in a police state. Tally their pain, their loss and their medical bills, and add it to that of the hundreds of other families in cities and towns across the nation who are similarly reeling from the blows inflicted by the government’s standing armies, and you will find yourself reeling. For many of these individuals, there can never be any amount of reparation sufficient to make up for the lives lost or shattered.

As for those who do get “paid back,” at least in monetary terms for their heartache and loss, it’s the taxpayers who are footing the bill to the tune of millions of dollars. Incredibly, these cases hardly impact the police department’s budget. As journalist Aviva Shen points out, “individual officers are rarely held accountable for their abuses, either by the police department or in court… Internally, police departments rarely investigate complaints of misconduct, let alone punish the accused officers. Because cities insulate police officers and departments from the financial consequences for their actions, police on the street have little incentive to avoid unnecessary force, and their departments may not feel the need to crack down on repeat offenders. And so the bill for taxpayers keeps growing.”

For example, Baltimore taxpayers have paid roughly $5.7 million since 2011 over lawsuits stemming from police abuses, with an additional $5.8 million going towards legal fees. That’s money that could have been spent on a state-of-the-art recreation center or renovations at more than 30 playgrounds. As the Baltimore Sun reports: “Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson… Officers have battered dozens of residents who suffered broken bones — jaws, noses, arms, legs, ankles — head trauma, organ failure, and even death, coming during questionable arrests. Some residents were beaten while handcuffed; others were thrown to the pavement.”

New York taxpayers have shelled out almost $1,130 per year per police officer (there are 34,500 officers in the NYPD) to address charges of misconduct. That translates to $38 million every year just to clean up after these so-called public servants. Over a 10-year-period, Oakland, Calif., taxpayers were made to cough up more than $57 million (curiously enough, the same amount as the city’s deficit back in 2011) in order to settle accounts with alleged victims of police abuse.

Chicago taxpayers were asked to pay out nearly $33 million on one day alone to victims of police misconduct, with one person slated to receive $22.5 million, potentially the largest single amount settled on any one victim. The City has paid more than half a billion dollars to victims over the course of a decade. The Chicago City Council actually had to borrow $100 million just to pay off lawsuits arising over police misconduct in 2013. The city’s payout for 2014 should be in the same ballpark, especially with cases pending such as the one involving the man who was reportedly sodomized by a police officer’s gun in order to force him to “cooperate.”

Over 78% of the funds paid out by Denver taxpayers over the course of a decade arose as a result of alleged abuse or excessive use of force by the Denver police and sheriff departments. Meanwhile, taxpayers in Ferguson, Missouri, are being asked to pay $40 million in compensation—more than the city’s entire budget—for police officers treating them “‘as if they were war combatants,’ using tactics like beating, rubber bullets, pepper spray, and stun grenades, while the plaintiffs were peacefully protesting, sitting in a McDonalds, and in one case walking down the street to visit relatives.”

That’s just a small sampling of the most egregious payouts, but just about every community—large and small—feels the pinch when it comes to compensating victims who have been subjected to deadly or excessive force by police. The ones who rarely ever feel the pinch are the officers accused or convicted of wrongdoing, “even if they are disciplined or terminated by their department, criminally prosecuted, or even imprisoned.”

Indeed, a study published in the NYU Law Review reveals that 99.8% of the monies paid in settlements and judgments in police misconduct cases never come out of the officers’ own pockets, even when state laws require them to be held liable. Moreover, these officers rarely ever have to pay for their own legal defense. As law professor Joanna C. Schwartz notes, police officers are more likely to be struck by lightning than be made financially liable for their actions.

Schwartz references a case in which three Denver police officers chased and then beat a 16-year-old boy, stomping “on the boy’s back while using a fence for leverage, breaking his ribs and causing him to suffer kidney damage and a lacerated liver.” The cost to Denver taxpayers to settle the lawsuit: $885,000. The amount the officers contributed: 0.

Kathryn Johnston, 92 years old, was shot and killed during a SWAT team raid that went awry. Attempting to cover their backs, the officers falsely claimed Johnston’s home was the site of a cocaine sale and went so far as to plant marijuana in the house to support their claim. The cost to Atlanta taxpayers to settle the lawsuit: $4.9 million. The amount the officers contributed: 0.

Meanwhile, in Albuquerque, a police officer was convicted of raping a woman in his police car, in addition to sexually assaulting four other women and girls, physically abusing two additional women, and kidnapping or falsely imprisoning five men and boys. The cost to the Albuquerque taxpayers to settle the lawsuit: $1,000,000. The amount the officer contributed: 0.

In its report on police brutality and accountability in the United States, Human Rights Watch notes that taxpayers actually pay three times for officers who repeatedly commit abuses: “once to cover their salaries while they commit abuses; next to pay settlements or civil jury awards against officers; and a third time through payments into police ‘defense’ funds provided by the cities.”

A large part of the problem can be chalked up to influential police unions and laws providing for qualified immunity, which invariably allow officers to walk away without paying a dime for their wrongdoing. Conveniently, those deciding whether a police officer should be immune from having to personally pay for misbehavior on the job all belong to the same system, all cronies with a vested interest in protecting the police and their infamous code of silence: city and county attorneys, police commissioners, city councils and judges.A Government of Wolves book cover

In a nutshell, the U.S. Supreme Court’s reasoning when it comes to qualified immunity for government officials (not just police officers) is essentially that these officials might be too cautious in carrying out their duties if there was a risk that they might be held personally liable for wrongdoing on the job. Frankly, we’d be far better off if government officials operated under the constant fear that there would be ramifications for wrongdoing on the job. As it now stands, we’ve got way too many lawbreakers, scoundrels, cheats and thugs on the government’s payroll, (many of whom are actually elected to office).

So what’s the solution, if any, to a system so clearly rigged that it allows rogue cops who engage in excessive force to wreak havoc with no fear of financial consequences? As HRW concludes:

The excessive use of force by police officers, including unjustified shootings, severe beatings, fatal chokings, and rough treatment, persists because overwhelming barriers to accountability make it possible for officers who commit human rights violations to escape due punishment and often to repeat their offenses…. Officers with long records of abuse, policies that are overly vague, training that is substandard, and screening that is inadequate all create opportunities for abuse. Perhaps most important, and consistently lacking, is a system of oversight in which supervisors hold their charges accountable for mistreatment and are themselves reviewed and evaluated, in part, by how they deal with subordinate officers who commit human rights violations. Those who claim that each high-profile case of abuse by a “rogue” officer is an aberration are missing the point: problem officers frequently persist because the accountability systems are so seriously flawed.

Unfortunately, we’re so far gone as a nation in terms of cronyism, corruption and unequal justice that there’s little hope of reformation working from the top down. As I point out in A Government of Wolves: The Emerging American Police State, if any change is to be made, if any hope for accountability is to be realized it must begin, as always, at the local level, with local police departments and governing bodies, where the average citizen can still, with sufficient reinforcements, make his voice heard.

So the next time you hear of a police shooting in your town of an unarmed citizen, don’t just shrug helplessly and turn the page or switch the channel. Form a coalition of concerned citizens and call your prosecutor’s office, email the police department, speak out at your city council meeting, urge your local paper to cover the story from both sides, blog about it, stage a protest, demand transparency and accountability—whatever you do, make sure you send the message loud and clear that you do not want your taxpayer dollars supporting illegal and abusive behavior.

WASHINGTON, DC — Attorneys for The Rutherford Institute have asked a federal court to make permanent its August 2014 ruling that “busking,” the time-honored practice of street performing for donations, is protected by the First Amendment. In filing a motion for summary judgment in U.S. District Court, Rutherford Institute attorneys have asked Judge Beryl Howell to make permanent the court’s preliminary injunction forbidding WMATA from interfering with guitarist Alex Young’s “busking” near DC-area Metro stations. The motion argues that performing in public places for tips is not “commercial activity” in violation of WMATA’s Use Regulation policies and that any total ban on busking at Metrorail stations violates the First Amendment rights of Young and other street performers.

The judge’s order granting a preliminary injunction in Young v. Sarles is available at www.rutherford.org.

“Whether it’s a world class violinist such as Joshua Bell playing incognito at Union Station, or lesser-known guitarist Alex Young playing a few stops down the Metro line, the First Amendment applies equally,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “That’s the beauty of our Constitution—that it applies to everyone, regardless of their politics, religion, gender, wealth, or social status—and it is our hope that the court will fully embrace the principles of the First Amendment.”

Alex Young is a 27-year old guitarist who performs in public and accepts donations from passersby. Although Young does not actively solicit donations, he does set out his open guitar case in order to receive tips from members of the public who enjoy his performance. Among the places where Young performs are the above-ground, “free” areas of WMATA transit stations.  According to regulations promulgated by WMATA’s governing authority, persons are allowed to engage in “free speech activities” on WMATA property, so long as the activity is in above-ground areas and is at least 15 feet from a station entrance, escalator or stairway.  According to the complaint, Young was busking at the Ballston Metro station on the sidewalk abutting N. Stuart Street in November 2013 when he was approached by a Transit Police officer and ordered to cease playing and accepting tips. The officer accused Young of engaging in “panhandling” and threatened to arrest him if he did not move elsewhere.  In a separate instance in October 2013, Young was ordered to cease his public performing at the West Falls Church Metro Station. A Transit Police officer told Young that because he was accepting donations, he was engaged in “commercial activity” that is prohibited by WMATA regulations. In filing suit against WMATA, Rutherford Institute attorneys allege that the above-ground, free areas of Metro Stations are considered traditional public forums, making them areas where speech and expression are given special protection by the U.S. Constitution’s First Amendment.  Additionally, Young’s performing in public, or “busking,” is a time-honored activity that courts have consistently found to be fully protected by the constitutional guarantee to freedom of speech.

Affiliate attorney Jeffrey L. Light is assisting The Rutherford Institute by representing Young.

RICHMOND, Va. — Attorneys for The Rutherford Institute have filed a brief with the Fourth Circuit Court of Appeals, asking the court to reject the claims of a Chesterfield County mental health screener that he was not responsible or liable for the seizure and week-long detention in a psychiatric ward of a decorated Marine by a swarm of Secret Service and FBI agents and local police because of controversial song lyrics and political views posted on his Facebook page. In asking the Court of Appeals to reinstate the lawsuit, which was dismissed in February 2014 by a federal judge who termed its concerns over government censorship as “far-fetched,” Institute attorneys argue that Brandon Raub’s seizure and detention were the result of a mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech.

“As various free speech cases working their way through the courts right now make clear, the government, a master in the art of intrusion, surveillance and criminalizing harmless activities, is continuing to clamp down on First Amendment activity on the web and in social media under the various guises of fighting terrorism, discouraging cyberbullying, and combatting violence,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “For the 1.31 billion individuals who use Facebook and the 255 million who tweet their personal and political views on Twitter, these cases will determine where the government can draw the line when it comes to expressive speech that is protected and permissible versus speech that could be interpreted as connoting a criminal intent.”

On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Brandon Raub’s home, asking to speak with him about his Facebook posts. Like many Facebook users, Raub, a Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. Without providing any explanation, levying any charges against Raub or reading him his rights, law enforcement officials handcuffed Raub and transported him to police headquarters, then to John Randolph Medical Center, where he was held against his will. In a hearing on Aug. 20, government officials pointed to Raub’s Facebook posts as the reason for his incarceration. A Special Justice subsequently ordered that Raub be held up to 30 more days for psychological evaluation and treatment.

In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” Rutherford Institute attorneys filed a lawsuit in May 2013 on behalf of Raub in the U.S. District Court for the Eastern District of Virginia challenging the government’s actions as procedurally improper, legally unjustified, and in violation of Raub’s First Amendment rights. In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.”

Attorneys Anthony Troy and Charles A. Zdebski of Eckert Seamens Cherin & Mellott, LLC, and William H. Hurd and Stephen C. Piepgrass of Troutman Sanders, LLP in Richmond are assisting The Rutherford Institute by representing Brandon Raub.

“Let your motto be resistance! resistance! Resistance! No oppressed people have ever secured their liberty without resistance.”—Abolitionist Henry Highland Garnet

The perils of resisting the police state grow more costly with each passing day, especially if you hope to escape with your life and property intact. The thing you must remember is that we’ve entered an age of militarized police in which we’re no longer viewed as civilians but as enemy combatants.

Take, for example, Mary Elizabeth VandenBerg who was charged with disturbing the peace, a crime punishable by up to 93 days in jail and a $500 fine, for daring to vocalize her frustrations over a traffic ticket by reading a prepared statement to the court clerk and paying her $145 traffic ticket with 145 one-dollar bills. VandenBerg was also handcuffed, tasered and pepper sprayed for “passively” resisting police by repeatedly stopping and talking to them and stiffening her arms. The incident, filmed by VandenBerg’s brother, is now the subject of a lawsuit.

Zachary Noel was tasered by police and charged with resisting arrest after he questioned why he was being ordered out of his truck during a traffic stop. “Because I’m telling you to,” the officer replied before repeating his order for Noel to get out of the vehicle and then, without warning, shooting him with a taser through the open window. The encounter, recorded with a cell phone by Noel’s friend in the passenger seat, offers a particularly chilling affirmation of how little recourse Americans really have when it comes to obeying an order from a government official or police officer, even if it’s just to ask a question or assert one’s rights.

Eighteen-year-old Keivon Young was shot seven times by police from behind while urinating outdoors. Young was just zipping up his pants when he heard a commotion behind him and then found himself struck by a hail of bullets from two undercover cops. Despite the fact that the officers mistook Young—5’4,” 135 lbs., and guilty of nothing more than taking a leak outdoors—for a 6’ tall, 200 lb. murder suspect whom they later apprehended, the young man was charged with felony resisting arrest and two counts of assaulting a peace officer.

What these incidents make clear is that anything short of compliance will now get you charged with any of the growing number of contempt charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that get trotted out anytime a citizen voices discontent with the government or challenges or even questions the authority of the powers that be—and that’s the best case scenario. The worst case scenario involves getting probed, poked, pinched, tasered, tackled, searched, seized, stripped, manhandled, arrested, shot, or killed.

So what can you really do when you find yourself at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to “serve and protect”? In other words, what are the rules of engagement when it comes to interacting with the police?

If you want to play it safe, comply and do whatever a police officer tells you to do. Don’t talk back. Don’t threaten. And don’t walk away. In other words, don’t do anything that even hints at resistance.

Keep in mind, however, that this is not a fail-safe plan, especially not in an age where police officers tend to shoot first and ask questions later, oftentimes based only on their highly subjective “feeling” of being threatened, and are reprimanded with little more than a slap on the wrist. Indeed, the news is riddled with reports of individuals who didn’t resist when confronted by police and still got tasered, tackled or shot simply because they looked at police in a threatening manner or moved in a way that made an officer fear for his safety.

For example, Levar Edward Jones was shot by a South Carolina police officer during a routine traffic stop over a seatbelt violation as he was in the process of reaching for his license and registration. The trooper justified his shooting of the unarmed man by insisting that Jones reached for his license “aggressively.”

If compliance isn’t quite your cup of tea—and we’d be far better off as a nation if we were far less compliant—then you’ve got a few more options ranging from legal-but-sure-to-annoy-an-officer to legal-but-it-could-get-you-arrested to legal-but-it-could-get-you-shot.

If this is war—and a good case could be made for the fact that the government is indeed waging a war on the American citizenry—then the tactics I’m about to outline could be considered nonviolent guerilla warfare, using whatever strategic, legal, creative and nonviolent means are available in order to outmaneuver an opponent—in our case, the American police force—whose language is the language of force.

To begin with, and most importantly, Americans need to know their rights when it comes to interactions with the police, bearing in mind that many law enforcement officials are largely ignorant of the law themselves. In a nutshell, here are your basic rights when it comes to interactions with the police as outlined in the first ten amendments to the U.S. Constitution:

You have the right under the First Amendment to ask questions and express yourself. You have the right under the Fourth Amendment to not have your person or your property searched by police or any government agent unless they have a search warrant authorizing them to do so.  You have the right under the Fifth Amendment to remain silent and not incriminate yourself.

You have the right under the Sixth Amendment to request an attorney. Depending on which state you live in and whether your encounter with police is consensual as opposed to your being temporarily detained or arrested, you may have the right to refuse to identify yourself. Presently, 26 states do not require citizens to show their ID to an officer (drivers in all states must do so, however).

Knowing your rights is only part of the battle, unfortunately. The hard part comes in when you have to exercise those rights in order to hold government officials accountable to respecting those rights.

As a rule of thumb, you should always be sure to clarify in any police encounter whether or not you are being detained, i.e., whether you have the right to walk away. That holds true whether it’s a casual “show your ID” request on a boardwalk, a stop-and-frisk search on a city street, or a traffic stop for speeding or just to check your insurance.

As I point out in my book A Government of Wolves: The Emerging American Police State, if you feel like you can’t walk away from a police encounter of your own volition—and more often than not you can’t, especially when you’re being confronted by someone armed to the hilt with all manner of militarized weaponry and gear—then for all intents and purposes, you’re essentially under arrest from the moment a cop stops you.

Still, it doesn’t hurt to clarify that distinction, as Kahler Nygard learned. Nygard was threatened with arrest for failing to comply with an order by TSA agents to undergo additional screening after flying with no incident from Minneapolis to his final destination in Denver. It turns out that Nygard, at one time a vocal critic of the government, had been placed on a special list requiring him to undergo extra airport screening. When airport officials realized that they had failed to carry out the additional screening prior to Nygard’s departure, they attempted to cover their mistake by screening him once he landed. To the annoyance of the government agent, Nygard—who filmed the entire encounter—repeatedly asked the agent whether he was being detained or not. Once he deduced that the TSA had no legal rationale for detaining him, Nygard walked away without incident. The encounter might have ended far differently had a police officer been standing nearby, however.

Another important takeaway from Nygard’s experience is to record your encounter with police. While technology is always going to be a double-edged sword, with the gadgets that are the most useful to us in our daily lives—GPS devices, cell phones, the internet—being the very tools used by the government to track us, monitor our activities, and generally spy on us, cell phones are particularly useful for recording encounters with the police and have proven to be increasingly powerful reminders to police that they are not all powerful.

No matter what individual police officers might say to the contrary, members of the public have a First Amendment right to record police interactions, as the Justice Department recognized in a 2012 memorandum acknowledging that “recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”

That said, there may still be consequences for filming the police, as Fred Marlow learned the hard way. Marlow was charged with interfering and resisting arrest, and fined $5,000 for daring to film a SWAT team raid that took place across the street from his apartment. Marlow was asleep when he heard what sounded like “multiple bombs blasting and glass breaking.” Rushing outside to investigate, Marlow filmed police officers dressed in army green camouflage standing beside an armored vehicle, in the process of carrying out a SWAT team raid to serve a search warrant (more than 80,000 such raids take place every year in the U.S. for such routine police procedures as serving search warrants). Ordered to return inside or face arrest for interference, Marlow explained that he was on his own property and could be outside. He was subsequently arrested.

One popular alternative to citizens filming police encounters is having the police wear body cameras, which have been proven to decrease the number of use-of-force incidents and citizen complaints when used properly. Unfortunately, given that they can be turned off as easily as they are turned on, these devices are also ripe for abuse, not to mention the fact that they are privacy-threatening, roving extensions of the surveillance state whose cameras are conveniently pointed at us, not them.

Clearly, the language of freedom is no longer the common tongue spoken by the citizenry and their government. With the government having shifted into a language of force, “we the people” have been reduced to suspects in a surveillance state, criminals in a police state, and enemy combatants in a military empire.

In such an environment, as every resistor from Martin Luther King Jr. and on down the line has learned, there is always a price to be paid for challenging the status quo. Then again, the price for not challenging the status quo is even worse: outright tyranny, the loss of our freedoms, and a totalitarian regime the likes of which the world has never seen before.