John W. Whitehead, Constitutional Attorney

CHARLOTTESVILLE, Va. — Constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State, has been named one of the “Good Guys of 2014” by Watchdog.org, a nationwide group of investigative journalists covering state-specific and local government activity.

As Watchdog explained, “These citizens, government officials and politicians took to heart the mission of Watchdog.org, to hold government at all levels accountable to the public. We salute each of them. They are motivated citizens, regulators and politicians who fought to make government a little smaller and less onerous and who lifted the ever-growing burden on taxpayers.”

Investigative journalist Kenric Ward of Watchdog’s Virginia Bureau provided the rationale for the group’s inclusion of Whitehead among their Good Guys of 2014:

Whitehead went stronger than ever in 2014. Whitehead, an attorney based in Charlottesville, Va., was one of the first to blow the whistle on invasive use of drones. Recently, he helped free a veteran who was arrested for posting “dangerous” opinions on Facebook. Where partisan agendas paralyze the ACLU, the Rutherford Institute stays true to the fundamental principle that government overreach puts a chokehold on individual liberty. Whitehead’s 2013 book — “A Government of Wolves” — paints a grim portrait of a nation in the final stages of transformation into a police state. This inconvenient truth offends our public servants and mainstream media outlets dutifully toeing the statist line. But Whitehead also discomforts conservatives who preach “American exceptionalism” abroad while steadily undercutting constitutional rights at home.

Watchdog’s complete list of “Good Guys of 2014” is available at http://watchdog.org/188627/good-guys-pt-6/.

STANARDSVILLE, Va. — The Rutherford Institute has come to the aid of a four-year-old Virginia student who, after allegedly acting up in class, was turned over to police, who handcuffed and shackled the preschooler and transported him to the sheriff’s office. While at the sheriff’s office, the police forced C.B., the four-year-old, to speak with prison inmates in an apparent attempt to “scare straight” the preschooler. The child was left in handcuffs or shackles for about 20 minutes.

Pointing out that handcuffing and shackling a four-year-old is excessive, unwarranted, and unnecessarily traumatizing, attorneys for The Rutherford Institute have asked that public school officials take steps to assure the child’s family and the rest of the community of parents and concerned citizens that what happened to C.B. will not happen again to him or other students of similar age. Specifically, Institute attorneys have asked that protocols be established to guide school personnel and allow them to deal more appropriately with students who are acting up or have become upset, preventing such incidents from escalating to the point where use of law enforcement is considered an option.

“That it was a sheriff’s deputy and not a public school official who handcuffed and shackled this four-year-old does not detract from the fact that this mother entrusted her son to the care of school officials, trusting them to care for him as she would, with compassion, understanding and patience,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “That such extreme restraints would even be contemplated in a case such as this points to a failure by those in leadership to provide the proper guidance to school personnel in what forms of restraint and force are appropriate when dealing with students, especially the youngest and most vulnerable.”

The incident occurred on October 16, 2014, while four-year-old C.B. was in one of the pre-Kindergarten programs at Nathanael Greene Primary School. According to school officials, C.B. was removed from the classroom after allegedly becoming agitated and throwing several items onto the floor. School personnel then telephoned C.B.’s mother, Tracy Wood, who indicated she would come and get the child. Although school personnel knew C.B.’s mother was en route to NGPS, they called in the school’s resource officer, a Greene County deputy sheriff, to confront the preschooler. The sight of the law enforcement officer reportedly only served to agitate C.B. further. Instead of employing positive reinforcement, a bear hug or some other method of control appropriate for children, the officer escalated the situation by treating the 4-year-old as if he were being arrested: handcuffing C.B. and transporting him in a police car to a Greene County Sheriff’s office. Upon arriving at NGPS, Ms. Wood was stunned to learn that her son had been transported to the Sheriff’s office.

After a frantic trip to the police station, Ms. Wood arrived to find her son traumatized and in leg shackles, like an inmate being transported for a court appearance. To her dismay, Ms. Wood learned that not only had the 4-year-old been handcuffed and shackled for about 20 minutes, but that the police officer had forced C.B. to speak with persons who had been arrested in an apparent attempt to “scare straight” the preschooler. Incredibly, C.B. was held in handcuffs or shackles for about 20 minutes. Rather than recognizing the imprudence of treating a young child like a hardened criminal, school officials and the sheriff’s office not only defended their actions but actually suspended C.B. from the pre-K program and instructed his mother to seek “homebound instruction” for him. In coming to C.B.’s defense, Rutherford Institute attorneys have asked that school officials rescind the suspension, remove any indication of the incident from C.B.’s records, and implement policies making it clear that handcuffing, shackling and other similar excessive restraint techniques are never appropriate when dealing with children of tender years.

LEGAL ACTION

Click here to read The Rutherford Institute’s letter to Greene County Public Schools

“[I]f the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime.”—U.S. Supreme Court Justice William O. Douglas, dissenting in Terry v. Ohio (1968)

With Orwellian irony, the U.S. Supreme Court chose December 15, National Bill of Rights Day to deliver its crushing blow to the Fourth Amendment. Although the courts have historically held that ignorance of the law is not an excuse for breaking the law, in its 8-1 ruling in Heien v. State of North Carolina, the Supreme Court gave police in America one more ready excuse to routinely violate the laws of the land, this time under the guise of ignorance.

The Heien case, which started with an improper traffic stop based on a police officer’s ignorance of the law and ended with an unlawful search, seizure and arrest, was supposed to ensure that ignorance of the law did not become a ready excuse for government officials to routinely violate the law.

It failed to do so.

In failing to enforce the Constitution, the Court gave police the go-ahead to justify a laundry list of misconduct, from police shootings of unarmed citizens to SWAT team raids, roadside strip searches, and the tasering of vulnerable individuals with paltry excuses such as “they looked suspicious” and “she wouldn’t obey our orders.”

When police handcuffed, strip-searched and arrested a disabled man for no reason other than he sounded incoherent, it was chalked up as a mistake. Gordon Goines, a 37-year-old disabled man suffering from a Lou Gehrigs-type disease, was “diagnosed” by police and an unlicensed mental health screener as having “mental health issues,” apparently because of his slurred speech and unsteady gait, and subsequently handcuffed, strip searched, and locked up for five days in a mental health facility against his will and with no access to family and friends. This was done despite the fact that police had no probable cause to believe that Goines had committed any crime, was a danger to himself or others, nor did they have any other legitimate lawful reason to seize, arrest or detain him. When Goines was finally released, police made no attempt to rectify their “mistake.”

“I didn’t know it was against the law” was the excuse police used to justify their repeated tasering of Malaika Brooks. Eight-months pregnant and on her way to drop her son off at school, Brooks was repeatedly tasered by Seattle police during a routine traffic stop simply because she refused to sign a speeding ticket. The cops who tasered the pregnant woman insisted they weren’t aware that repeated electro-shocks qualified as constitutionally excessive and unreasonable force. The Supreme Court gave the cops a “get out of jail” card.

“I thought he was reaching for a gun.” That was the excuse given when a police officer repeatedly shot 70-year-old Bobby Canipe during a traffic stop. The cop saw the man reaching for his cane and, believing the cane to be a rifle and fearing for his life, opened fire. Police excused the shooting as “unfortunate” but “appropriate.”

“He was resisting arrest.” That was the rationale behind Eric Garner’s death. Garner, placed in a chokehold by police for allegedly resisting their attempts to arrest him for selling loose cigarettes, screamed “I can’t breathe” repeatedly, until he breathed his last breath. A grand jury ruled there was no “reasonable cause” to charge the arresting officer with Garner’s death.

And then you have the Heien case, which, while far less traumatic than Eric Garner’s chokehold death, was no less egregious in its defiance of the rule of law.

In April 2009, a police officer stopped Nicholas Heien’s car, allegedly over a faulty brake light, and during the course of the stop and subsequent search, found a sandwich bag’s worth of cocaine. In North Carolina, where the traffic stop took place, it’s not actually illegal to have only one working brake light. However, Heien—the owner of the vehicle—didn’t know that and allowed the search, which turned up drugs, and resulted in Heien’s arrest. When the legitimacy of the traffic stop was challenged in court, the arresting officer claimed ignorance and the courts deemed it a “reasonable mistake.”

I’m not sure which is worse: law enforcement officials who know nothing about the laws they have sworn to uphold, support and defend, or a constitutionally illiterate citizenry so clueless about their rights that they don’t even know when those rights are being violated.

This much I do know, however: going forward, it will be that much easier for police officers to write off misconduct as a “reasonable” mistake.

Understanding this, Justice Sotomayor, the Court’s lone dissenter, warned that the court’s ruling “means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.” Sotomayor continues:

Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands this authority. One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.

There’s no need to wonder, because there is no way to avoid these invasive, frightening, and humiliating encounters, not as long as the courts continue to excuse ignorance and sanction abuses on the part of the police.

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.

Indeed, as I point out in my book A Government of Wolves: The Emerging American Police State, the police and other government agents have, with the general blessing of the courts, already been given the authority to probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance.

Just consider the Court’s pro-police state rulings in recent years:

In Plumhoff v. Rickard, the Court declared that police officers can use lethal force in car chases without fear of lawsuits. In Navarette v. California, the Court declared that police officers can stop cars based only on “anonymous” tips.  This ruling came on the heels of a ruling by the Tenth Circuit Court of Appeals in U.S. v. Westhoven that driving too carefully, with a rigid posture, taking a scenic route, and having acne are sufficient reasons for a police officer to suspect you of doing something illegal, detain you, search your car, and arrest you—even if you’ve done nothing illegal to warrant the stop in the first place.

In Maryland v. King, a divided Court determined police can forcibly take your DNA, whether or not you’ve been convicted of a crime. The Supreme Court’s ruling in Arizona v. United States allows police to stop, search, question and profile citizens and non-citizens alike. And in an effort to make life easier for “overworked” jail officials, the Court ruled in Florence v. Burlington that police can subject Americans to virtual strip searches, no matter the “offense.”

In an 8-1 ruling in Kentucky v. King, the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes without a warrant, even if it’s the wrong home. In Hiibel v. Sixth Judicial District Court of the State of Nevada, a majority of the high court agreed that it’s a crime to not identify yourself when a policeman asks your name.

And now we’ve got Heien v. North Carolina, which gives the police a green light to keep doing more of the same without fear of recrimination. Clearly, the present justices of the Supreme Court have forgotten that the Constitution, as Justice Douglas long ago recognized, “is not neutral. It was designed to take the government off the backs of people.”

Given the turbulence of our age—with its police overreach, military training drills on American soil, domestic surveillance, profit-driven prisons, asset forfeiture schemes, wrongful convictions, and corporate corruption—it’s not difficult to predict that this latest Supreme Court ruling will open the door to even greater police abuses.

We’ve got two choices: we can give up now and resign ourselves to a world in which police shootings, chokeholds, taserings, raids, thefts, and strip searches are written off as justifiable, reasonable or appropriate OR we can push back—nonviolently—against the police state and against all of the agencies, entities and individuals who march in lockstep with the police state.

As for those still deluded enough to believe they’re living the American dream—where the government represents the people, where the people are equal in the eyes of the law, where the courts are arbiters of justice, where the police are keepers of the peace, and where the law is applied equally as a means of protecting the rights of the people—it’s time to wake up.

We no longer have a representative government, a rule of law, or justice. Liberty has fallen to legalism. Freedom has fallen to fascism. Justice has become jaded, jaundiced and just plain unjust.

The dream has turned into a nightmare.

WASHINGTON, D.C. — In a blow to the constitutional rights of citizens, the U.S. Supreme Court ruled 8-1 in Heien v. State of North Carolina that police officers are permitted to violate American citizens’ Fourth Amendment rights if the violation results from a “reasonable” mistake about the law on the part of police. Acting contrary to the venerable principle that “ignorance of the law is no excuse,” the Court ruled that evidence obtained by police during a traffic stop that was not legally justified can be used to prosecute the person if police were reasonably mistaken that the person had violated the law. The Rutherford Institute had asked the U.S. Supreme Court to hold law enforcement officials accountable to knowing and abiding by the rule of law. Justice Sonia Sotomayor, the Court’s lone dissenter, warned that the court’s ruling “means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.”

“By refusing to hold police accountable to knowing and abiding by the rule of law, the Supreme Court has given government officials a green light to routinely violate the law,” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning book A Government of Wolves: The Emerging American Police State. “This case may have started out with an improper traffic stop, but where it will end—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—is not hard to predict. This ruling is what I would call a one-way, nonrefundable ticket to the police state.”

In April 2009, a Surry County (N.C.) law enforcement officer stopped a car traveling on Interstate 77, allegedly because of a brake light which at first failed to illuminate and then flickered on. The officer mistakenly believed that state law prohibited driving a car with one broken brake light. In fact, the state traffic law requires only one working brake light. Nevertheless, operating under a mistaken understanding of the law, during the course of the stop, the officer asked for permission to search the car. Nicholas Heien, the owner of the vehicle, granted his consent to a search. Upon the officer finding cocaine in the vehicle, he arrested and charged Heien with trafficking. Prior to his trial, Heien moved to suppress the evidence seized in light of the fact that the officer’s pretext for the stop was erroneous and therefore unlawful. Although the trial court denied the motion to suppress evidence, the state court of appeals determined that since the police officer had based his initial stop of the car on a mistaken understanding of the law, there was no valid reason for the stop in the first place. On appeal, the North Carolina Supreme Court ruled that even though the officer was wrong in concluding that the inoperable brake light was an offense, because the officer’s mistake was a “reasonable” one, the stop of the car did not violate the Fourth Amendment and the evidence resulting from the stop did not need to be suppressed. In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys warn against allowing government agents to “benefit” from their mistakes of law, deliberate or otherwise, lest it become an incentive for abuse.

Affiliate attorney Christopher F. Moriarty assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

LEGAL ACTION

Click here to read The Rutherford Institute’s amicus brief in Heien v. State of North Carolina

“The truth is that the State is a conspiracy designed not only to exploit, but above all to corrupt its citizens.”—Leo Tolstoy

My 7-year-old granddaughter has suddenly developed a keen interest in card games: Go Fish, Crazy Eights, Old Maid, Blackjack, and War. We’ve fallen into a set pattern now: every time we play, she deals the cards, and I pretend not to see her stacking the deck in her favor. And of course, I always lose.

I don’t mind losing to my granddaughter at Old Maid, knowing full well the game is rigged. For now, it’s fun and games, and she’s winning. Where the rub comes in is in knowing that someday she’ll be old enough to realize that being a citizen in the American police state is much like playing against a stacked deck: you’re always going to lose.

The game is rigged, and “we the people” keep getting dealt the same losing hand. Even so, we stay in the game, against all odds, trusting that our luck will change.

The problem, of course, is that luck will not save us. The people dealing the cards—the politicians, the corporations, the judges, the prosecutors, the police, the bureaucrats, the military, the media, etc.—have only one prevailing concern, and that is to maintain their power and control over the country and us.

It really doesn’t matter what you call them—the 1%, the elite, the controllers, the masterminds, the shadow government, the police state, the surveillance state, the military industrial complex—so long as you understand that while they are dealing the cards, the deck will always be stacked in their favor.

Incredibly, no matter how many times we see this played out, Americans continue to naively buy into the idea that it’s our politics that divide us as a nation. As if there were really a difference between the Democrats and Republicans. As if the policies of George W. Bush were any different from those of Barack Obama. As if we weren’t a nation of sheep being fattened for the kill by a ravenous government of wolves.

We’re in trouble, folks, and changing the dealer won’t save us: it’s time to get out of the game.

We have relinquished control of our government to overlords who care nothing for our rights, our dignity or our humanity, and now we’re saddled with an authoritarian regime that is deaf to our cries, dumb to our troubles, blind to our needs, and accountable to no one.

Even revelations of wrongdoing amount to little in the way of changes for the better.

For instance, after six years of investigation, 6,000 written pages and $40 million to write a report that will not be released to the public in its entirety, the U.S. Senate has finally concluded that the CIA lied about its torture tactics, failed to acquire any life-saving intelligence, and was more brutal and extensive than previously admitted. This is no revelation. It’s a costly sleight of hand intended to distract us from the fact that nothing has changed. We’re still a military empire waging endless wars against shadowy enemies, all the while fattening the wallets of the defense contractors for whom war is money.

Same goes for the government’s surveillance programs. More than a year after Edward Snowden’s revelations dominated news headlines, the government’s domestic surveillance programs are just as invasive as ever. In fact, while the nation was distracted by the hubbub over the long-awaited release of the Senate’s CIA torture, the Foreign Intelligence Surveillance Court quietly reauthorized the National Security Agency’s surveillance of phone records. This was in response to the Obama administration’s request to keep the program alive.

Police misconduct and brutality have been dominating the news headlines for months now, but don’t expect any change for the better. In fact, with Obama’s blessing, police departments continue to make themselves battle ready with weapons and gear created for the military. Police shootings of unarmed citizens continue with alarming regularity. And grand juries, little more than puppets controlled by state prosecutors, continue to legitimize the police state by absolving police of any wrongdoing.

These grand juries embody everything that’s wrong with America today. In an age of secret meetings, secret surveillance, secret laws, secret tribunals and secret courts, the grand jury—which meets secretly, hears secret testimony, and is exposed to only what a prosecutor deems appropriate—has become yet another bureaucratic appendage to a government utterly lacking in transparency, accountability and adherence to the rule of law.

It’s a sorry lesson in how a well-intentioned law or program can be perverted, corrupted and used to advance illegitimate purposes. The war on terror, the war on drugs, asset forfeiture schemes, road safety schemes, school zero tolerance policies, eminent domain, private prisons: all of these programs started out as legitimate responses to pressing concerns. However, once you add money and power into the mix, even the most benevolent plans can be put to malevolent purposes.

In this way, the war on terror has become a convenient ruse to justify surveillance of all Americans, to create a suspect society, to expand the military empire, and to allow the president to expand the powers of the Executive Branch to imperial heights.

Under cover of the war on drugs, the nation’s police forces have been transformed into extensions of the military, with SWAT team raids carried out on unsuspecting homeowners for the slightest charge, and police officers given carte blanche authority to shoot first and ask questions later.

Asset forfeiture schemes, engineered as a way to strip organized crime syndicates of their ill-gotten wealth, have, in the hands of law enforcement agencies, become corrupt systems aimed at fleecing the citizenry while padding the pockets of the police.

Eminent domain, intended by the founders as a means to build roads and hospitals for the benefit of the general public, has become a handy loophole by which local governments can evict homeowners to make way for costly developments and shopping centers.

Private prisons, touted as an economically savvy solution to cash-strapped states with overcrowded prisons have turned into profit- and quota-driven detention centers that jail Americans guilty of little more than living off the grid, growing vegetable gardens in the front yards, or holding Bible studies in their back yards.

Traffic safety schemes such as automated red light and speed cameras, ostensibly aimed at making the nation’s roads safer, have been shown to be thinly disguised road taxes, levying hefty fines on drivers, most of whom would never have been pulled over, let alone ticketed, by an actual police officer.

School zero tolerance policies, a response to a handful of school shootings, have become exercises in folly, turning the schools into quasi-prisons, complete with armed police, metal detectors and lockdowns. The horror stories abound of 4- and 6-year-olds being handcuffed, shackled and dragged, kicking and screaming, to police headquarters for daring to act like children while at school.

As for grand juries, which were intended to serve as a check on the powers of the police and prosecutors, they have gone from being the citizen’s shield against injustice to a weapon in the hands of government agents. A far cry from a people’s court, today’s grand jury system is so blatantly rigged in favor of the government as to be laughable. Unless, that is, you happen to be one of the growing numbers of Americans betrayed and/or victimized by their own government, in which case, you’ll find nothing amusing about the way in which grand juries are used to terrorize the populace all the while covering up police misconduct.

Unfortunately, as I make clear in my book A Government of Wolves: The Emerging American Police State, we’re long past the point of simple fixes. The system has grown too large, too corrupt, and too unaccountable. If there’s to be any hope for tomorrow, it has to start at the local level, where Americans still have a chance to make their voices heard. Stop buying into the schemes of the elite, stop being distracted by their sleight-of-hands, stop being manipulated into believing that an election will change anything, and stop playing a rigged game where you’ll always be the loser.

It’s time to change the rules of the game. For that matter, it’s time to change the game.