Archive for July, 2022

The Genetic Panopticon: We’re All Suspects in a DNA Lineup, Waiting to be Matched with a Crime

Posted: July 27, 2022 in Uncategorized
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“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches… Make no mistake about it…your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason… Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”—Justice Antonin Scalia dissenting in Maryland v. King

Be warned: the DNA detectives are on the prowl.

Whatever skeletons may be lurking on your family tree or in your closet, whatever crimes you may have committed, whatever associations you may have with those on the government’s most wanted lists: the police state is determined to ferret them out.

In an age of overcriminalization, round-the-clock surveillance, and a police state eager to flex its muscles in a show of power, we are all guilty of some transgression or other.

No longer can we consider ourselves innocent until proven guilty.

Now we are all suspects in a DNA lineup waiting to be matched up with a crime.

Suspect State, meet the Genetic Panopticon.

DNA technology in the hands of government officials will complete our transition to a Surveillance State in which prison walls are disguised within the seemingly benevolent trappings of technological and scientific progress, national security and the need to guard against terrorists, pandemics, civil unrest, etc.

By accessing your DNA, the government will soon know everything else about you that they don’t already know: your family chart, your ancestry, what you look like, your health history, your inclination to follow orders or chart your own course, etc.

It’s getting harder to hide, even if you think you’ve got nothing to hide.

Armed with unprecedented access to DNA databases amassed by the FBI and ancestry website, as well as hospital newborn screening programs, police are using forensic genealogy, which allows police to match up an unknown suspect’s crime scene DNA with that of any family members in a genealogy database, to solve cold cases that have remained unsolved for decades.

By submitting your DNA to a genealogical database such as Ancestry and 23andMe, you’re giving the police access to the genetic makeup, relationships and health profiles of every relative—past, present and future—in your family, whether or not they ever agreed to be part of such a database.

It no longer even matters if you’re among the tens of millions of people who have added their DNA to ancestry databases. As Brian Resnick reports, public DNA databases have grown so massive that they can be used to find you even if you’ve never shared your own DNA.

That simple transaction—a spit sample or a cheek swab in exchange for getting to learn everything about one’s ancestral makeup, where one came from, and who is part of one’s extended family—is the price of entry into the Suspect State for all of us.

After all, a DNA print reveals everything about “who we are, where we come from, and who we will be.” It can also be used to predict the physical appearance of potential suspects.

It’s what police like to refer to a “modern fingerprint.”

Whereas fingerprint technology created a watershed moment for police in their ability to “crack” a case, DNA technology is now being hailed by law enforcement agencies as the magic bullet in crime solving, especially when it helps them crack cold cases of serial murders and rapists.

After all, who wouldn’t want to get psychopaths and serial rapists off the streets and safely behind bars, right?

At least, that’s the argument being used by law enforcement to support their unrestricted access to these genealogy databases, and they’ve got the success stories to prove it.

For instance, a 68-year-old Pennsylvania man was arrested and charged with the brutal rape and murder of a young woman almost 50 years earlier. Relying on genealogical research suggesting that the killer had ancestors who hailed from a small town in Italy, investigators narrowed their findings down to one man whose DNA, obtained from a discarded coffee cup, matched the killer’s.

In another cold case investigation, a 76-year-old man was arrested for two decades-old murders after his DNA was collected from a breathalyzer during an unrelated traffic stop.

Yet it’s not just psychopaths and serial rapists who are getting caught up in the investigative dragnet. In the police state’s pursuit of criminals, anyone who comes up as a possible DNA match—including distant family members—suddenly becomes part of a circle of suspects that must be tracked, investigated and ruled out.

Victims of past crimes are also getting added to the government’s growing DNA database of potential suspects. For instance, San Francisco police used a rape victim’s DNA, which was on file from a 2016 sexual assault, to arrest the woman for allegedly being involved in a property crime that took place in 2021.

In this way, “guilt by association” has taken on new connotations in a technological age in which one is just a DNA sample away from being considered a person of interest in a police investigation. As Jessica Cussins warns in Psychology Today, “The fundamental fight—that data from potentially innocent people should not be used to connect them to unrelated crimes—has been lost.”

Until recently, the government was required to at least observe some basic restrictions on when, where and how it could access someone’s DNA. That was turned on its head by various U.S. Supreme Court rulings that heralded the loss of privacy on a cellular level.

For instance, the U.S. Supreme Court ruled in Maryland v. King that taking DNA samples from a suspect doesn’t violate the Fourth Amendment. The Court’s subsequent decision to let stand the Maryland Court of Appeals’ ruling in Raynor v. Maryland, which essentially determined that individuals do not have a right to privacy when it comes to their DNA, made Americans even more vulnerable to the government accessing, analyzing and storing their DNA without their knowledge or permission.

It’s all been downhill since then.

Indeed, the government has been relentless in its efforts to get hold of our DNA, either through mandatory programs carried out in connection with law enforcement and corporate America, by warrantlessly accessing our familial DNA shared with genealogical services such as Ancestry and 23andMe, or through the collection of our “shed” or “touch” DNA.

Get ready, folks, because the government has embarked on a diabolical campaign to create a nation of suspects predicated on a massive national DNA database.

This has been helped along by Congress (which adopted legislation allowing police to collect and test DNA immediately following arrests), President Trump (who signed the Rapid DNA Act into law), the courts (which have ruled that police can routinely take DNA samples from people who are arrested but not yet convicted of a crime), and local police agencies (which are chomping at the bit to acquire this new crime-fighting gadget).

For example, Rapid DNA machines—portable, about the size of a desktop printer, highly unregulated, far from fool-proof, and so fast that they can produce DNA profiles in less than two hours—allow police to go on fishing expeditions for any hint of possible misconduct using DNA samples.

Journalist Heather Murphy explains: “As police agencies build out their local DNA databases, they are collecting DNA not only from people who have been charged with major crimes but also, increasingly, from people who are merely deemed suspicious, permanently linking their genetic identities to criminal databases.”

All 50 states now maintain their own DNA government databases, although the protocols for collection differ from state to state. Increasingly, many of the data from local databanks are being uploaded to CODIS, the FBI’s massive DNA database, which has become a de facto way to identify and track the American people from birth to death.

Even hospitals have gotten in on the game by taking and storing newborn babies’ DNA, often without their parents’ knowledge or consent. It’s part of the government’s mandatory genetic screening of newborns. In many states, the DNA is stored indefinitely. There’s already a move underway to carry out whole genome sequencing on newborns, ostensibly to help diagnose rare diseases earlier and improve health later in life, which constitutes an ethical minefield all by itself.

What this means for those being born today is inclusion in a government database that contains intimate information about who they are, their ancestry, and what awaits them in the future, including their inclinations to be followers, leaders or troublemakers.

Just recently, in fact, police in New Jersey accessed the DNA from a nine-year-old blood sample of a newborn baby in order to identify the child’s father as a suspect in a decades-old sexual assault.

The ramifications of this kind of DNA profiling are far-reaching.

At a minimum, these DNA databases do away with any semblance of privacy or anonymity.

The lucrative possibilities for hackers and commercial entities looking to profit off one’s biological record are endless. It’s estimated that the global human identification market is projected to reach $6.5 billion by 2032.

These genetic databases and genomic technology also make us that much more vulnerable to creeps and cyberstalkers, genetic profiling, and those who would weaponize the technology against us.

Unfortunately, the debate over genetic privacy—and when one’s DNA becomes a public commodity outside the protection of the Fourth Amendment’s prohibition on warrantless searches and seizures—continues to lag far behind the government and Corporate America’s encroachments on our rights.

Moreover, while much of the public debate, legislative efforts and legal challenges in recent years have focused on the protocols surrounding when police can legally collect a suspect’s DNA (with or without a search warrant and whether upon arrest or conviction), the question of how to handle “shed” or “touch” DNA has largely slipped through without much debate or opposition.

As scientist Leslie A. Pray notes:

We all shed DNA, leaving traces of our identity practically everywhere we go… In fact, the garbage you leave for curbside pickup is a potential gold mine of this sort of material. All of this shed or so-called abandoned DNA is free for the taking by local police investigators hoping to crack unsolvable cases… shed DNA is also free for inclusion in a secret universal DNA databank.

What this means is that if you have the misfortune to leave your DNA traces anywhere a crime has been committed, you’ve already got a file somewhere in some state or federal database—albeit it may be a file without a name. As Heather Murphy warns in the New York Times: “The science-fiction future, in which police can swiftly identify robbers and murderers from discarded soda cans and cigarette butts, has arrived…  Genetic fingerprinting is set to become as routine as the old-fashioned kind.”

As the dissenting opinion to the Maryland Court of Appeals’ shed DNA ruling in Raynor rightly warned, “A person can no longer vote, participate in a jury, or obtain a driver’s license, without opening up his genetic material for state collection and codification.” Indeed, by refusing to hear the Raynor case, the U.S. Supreme Court gave its tacit approval for government agents to collect shed DNA, likening it to a person’s fingerprints or the color of their hair, eyes or skin.

It’s just a matter of time before government agents will know everywhere we’ve been and how long we were at each place by following our shed DNA. After all, scientists can already track salmon across hundreds of square miles of streams and rivers using DNA.

Today, helped along by robotics and automation, DNA processing, analysis and reporting takes far less time and can bring forth all manner of information, right down to a person’s eye color and relatives. Incredibly, one company specializes in creating “mug shots” for police based on DNA samples from unknown “suspects” which are then compared to individuals with similar genetic profiles.

Of course, none of these technologies are infallible.

DNA evidence can be wrong, either through human error, tampering, or even outright fabrication, and it happens more often than we are told.

What this amounts to is a scenario in which we have little to no defense against charges of wrongdoing, especially when “convicted” by technology, and even less protection against the government sweeping up our DNA in much the same way it sweeps up our phone calls, emails and text messages.

As I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, it’s only a matter of time before the police state’s pursuit of criminals from the past expands into genetic profiling and a preemptive hunt for criminals of the future.

Source: https://bit.ly/3z4WZF2

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

Digital Authoritarianism: AI Surveillance Signals the Death of Privacy

Posted: July 20, 2022 in Uncategorized
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“There are no private lives. This a most important aspect of modern life. One of the biggest transformations we have seen in our society is the diminution of the sphere of the private. We must reasonably now all regard the fact that there are no secrets and nothing is private. Everything is public.” ― Philip K. Dick

Nothing is private.

We teeter on the cusp of a cultural, technological and societal revolution the likes of which have never been seen before.

While the political Left and Right continue to make abortion the face of the debate over the right to privacy in America, the government and its corporate partners, aided by rapidly advancing technology, are reshaping the world into one in which there is no privacy at all.

Nothing that was once private is protected.

We have not even begun to register the fallout from the tsunami bearing down upon us in the form of AI (artificial intelligence) surveillance, and yet it is already re-orienting our world into one in which freedom is almost unrecognizable.

AI surveillance harnesses the power of artificial intelligence and widespread surveillance technology to do what the police state lacks the manpower and resources to do efficiently or effectively: be everywhere, watch everyone and everything, monitor, identify, catalogue, cross-check, cross-reference, and collude.

Everything that was once private is now up for grabs to the right buyer.

Governments and corporations alike have heedlessly adopted AI surveillance technologies without any care or concern for their long-term impact on the rights of the citizenry.

As a special report by the Carnegie Endowment for International Peace warns, “A growing number of states are deploying advanced AI surveillance tools to monitor, track, and surveil citizens to accomplish a range of policy objectives—some lawful, others that violate human rights, and many of which fall into a murky middle ground.”

Indeed, with every new AI surveillance technology that is adopted and deployed without any regard for privacy, Fourth Amendment rights and due process, the rights of the citizenry are being marginalized, undermined and eviscerated.

Cue the rise of digital authoritarianism.

Digital authoritarianism, as the Center for Strategic and International Studies cautions, involves the use of information technology to surveil, repress, and manipulate the populace, endangering human rights and civil liberties, and co-opting and corrupting the foundational principles of democratic and open societies, “including freedom of movement, the right to speak freely and express political dissent, and the right to personal privacy, online and off.”

The seeds of digital authoritarianism were planted in the wake of the 9/11 attacks, with the passage of the USA Patriot Act. A massive 342-page wish list of expanded powers for the FBI and CIA, the Patriot Act justified broader domestic surveillance, the logic being that if government agents knew more about each American, they could distinguish the terrorists from law-abiding citizens.

It sounded the death knell for the freedoms enshrined in the Bill of Rights, especially the Fourth Amendment, and normalized the government’s mass surveillance powers.

Writing for the New York Times, Jeffrey Rosen observed that “before Sept. 11, the idea that Americans would voluntarily agree to live their lives under the gaze of a network of biometric surveillance cameras, peering at them in government buildings, shopping malls, subways and stadiums, would have seemed unthinkable, a dystopian fantasy of a society that had surrendered privacy and anonymity.”

Who could have predicted that 50 years after George Orwell typed the final words to his dystopian novel 1984, “He loved Big Brother,” we would come to love Big Brother.

Yet that is exactly what has come to pass.

After 9/11, Rosen found that “people were happy to give up privacy without experiencing a corresponding increase in security. More concerned about feeling safe than actually being safe, they demanded the construction of vast technological architectures of surveillance even though the most empirical studies suggested that the proliferation of surveillance cameras had ‘no effect on violent crime’ or terrorism.”

In the decades following 9/11, a massive security-industrial complex arose that was fixated on militarization, surveillance, and repression.

Surveillance is the key.

We’re being watched everywhere we go. Speed cameras. Red light cameras. Police body cameras. Cameras on public transportation. Cameras in stores. Cameras on public utility poles. Cameras in cars. Cameras in hospitals and schools. Cameras in airports.

We’re being recorded at least 50 times a day.

It’s estimated that there are upwards of 85 million surveillance cameras in the U.S. alone, second only to China.

On any given day, the average American going about his daily business is monitored, surveilled, spied on and tracked in more than 20 different ways by both government and corporate eyes and ears.

Beware of what you say, what you read, what you write, where you go, and with whom you communicate, because it will all be recorded, stored and used against you eventually, at a time and place of the government’s choosing.

Yet it’s not just what we say, where we go and what we buy that is being tracked.

We’re being surveilled right down to our genes, thanks to a potent combination of hardware, software and data collection that scans our biometrics—our faces, irises, voices, genetics, microbiomes, scent, gait, heartbeat, breathing, behaviors—runs them through computer programs that can break the data down into unique “identifiers,” and then offers them up to the government and its corporate allies for their respective uses.

As one AI surveillance advocate proclaimed, “Surveillance is no longer only a watchful eye, but a predictive one as well.” For instance, Emotion AI, an emerging technology that is gaining in popularity, uses facial recognition technology “to analyze expressions based on a person’s faceprint to detect their internal emotions or feelings, motivations and attitudes.” China claims its AI surveillance can already read facial expressions and brain waves in order to determine the extent to which members of the public are grateful, obedient and willing to comply with the Communist Party.

This is the slippery slope that leads to the thought police.

The technology is already being used “by border guards to detect threats at border checkpoints, as an aid for detection and diagnosis of patients for mood disorders, to monitor classrooms for boredom or disruption, and to monitor human behavior during video calls.”

For all intents and purposes, we now have a fourth branch of government: the surveillance state.

This fourth branch came into being without any electoral mandate or constitutional referendum, and yet it possesses superpowers, above and beyond those of any other government agency save the military. It is all-knowing, all-seeing and all-powerful. It operates beyond the reach of the president, Congress and the courts, and it marches in lockstep with the corporate elite who really call the shots in Washington, DC.

The government’s “technotyranny” surveillance apparatus has become so entrenched and entangled with its police state apparatus that it’s hard to know anymore where law enforcement ends and surveillance begins.

The short answer: they have become one and the same entity. The police state has passed the baton to the surveillance state, which has shifted into high gear with the help of artificial intelligence technologies. The COVID-19 pandemic helped to further centralize digital power in the hands of the government at the expense of the citizenry’s privacy rights.

“From cameras that identify the faces of passersby to algorithms that keep tabs on public sentiment online, artificial intelligence (AI)-powered tools are opening new frontiers in state surveillance around the world.” So begins the Carnegie Endowment’s report on AI surveillance note. “Law enforcement, national security, criminal justice, and border management organizations in every region are relying on these technologies—which use statistical pattern recognition, machine learning, and big data analytics—to monitor citizens.”

In the hands of tyrants and benevolent dictators alike, AI surveillance is the ultimate means of repression and control, especially through the use of smart city/safe city platforms, facial recognition systems, and predictive policing. These technologies are also being used by violent extremist groups, as well as sex, child, drug, and arms traffickers for their own nefarious purposes.

China, the role model for our dystopian future, has been a major force in deploying AI surveillance on its own citizens, especially by way of its social credit systems, which it employs to identify, track and segregate its “good” citizens from the “bad.”

Social media credit scores assigned to Chinese individuals and businesses categorize them on whether or not they are worthy of being part of society. A real-name system—which requires people to use government-issued ID cards to buy mobile sims, obtain social media accounts, take a train, board a plane, or even buy groceries—coupled with social media credit scores ensures that those blacklisted as “unworthy” are banned from accessing financial markets, buying real estate or travelling by air or train. Among the activities that can get you labeled unworthy are taking reserved seats on trains or causing trouble in hospitals.

In much the same way that Chinese products have infiltrated almost every market worldwide and altered consumer dynamics, China is now exporting its “authoritarian tech” to governments worldwide ostensibly in an effort to spread its brand of totalitarianism worldwide. In fact, both China and the United States have led the way in supplying the rest of the world with AI surveillance, sometimes at a subsidized rate.

This is how totalitarianism conquers the world.

While countries with authoritarian regimes have been eager to adopt AI surveillance, as the Carnegie Endowment’s research makes clear, liberal democracies are also “aggressively using AI tools to police borders, apprehend potential criminals, monitor citizens for bad behavior, and pull out suspected terrorists from crowds.”

Moreover, it’s easy to see how the China model for internet control has been integrated into the American police state’s efforts to flush out so-called anti-government, domestic extremists.

According to journalist Adrian Shahbaz’s in-depth report, there are nine elements to the Chinese model of digital authoritarianism when it comes to censoring speech and targeting activists: 1) dissidents suffer from persistent cyber attacks and phishing; 2) social media, websites, and messaging apps are blocked; 3) posts that criticize government officials are removed; 4) mobile and internet access are revoked as punishment for activism; 5) paid commentators drown out government criticism; 6) new laws tighten regulations on online media; 7) citizens’ behavior monitored via AI and surveillance tools; 9) individuals regularly arrested for posts critical of the government; and 9) online activists are made to disappear.

You don’t even have to be a critic of the government to get snared in the web of digital censorship and AI surveillance.

The danger posed by the surveillance state applies equally to all of us: lawbreaker and law-abider alike.

When the government sees all and knows all and has an abundance of laws to render even the most seemingly upstanding citizen a criminal and lawbreaker, then the old adage that you’ve got nothing to worry about if you’ve got nothing to hide no longer applies.

As Orwell wrote in 1984, “You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”

In an age of too many laws, too many prisons, too many government spies, and too many corporations eager to make a fast buck at the expense of the American taxpayer, we are all guilty of some transgression or other.

No one is spared.

As Elise Thomas writes for Wired: “New surveillance tech means you’ll never be anonymous again.”

It won’t be long before we find ourselves looking back on the past with longing, back to an age where we could speak to whomever we wanted, buy whatever we wanted, think whatever we wanted, go wherever we wanted, feel whatever we wanted without those thoughts, words and activities being tracked, processed and stored by corporate giants, sold to government agencies, and used against us by militarized police with their army of futuristic technologies.

Tread cautiously: as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, 1984 has become an operation manual for the omnipresent, modern-day AI surveillance state.

Without constitutional protections in place to guard against encroachments on our rights when power, AI technology and militaristic governance converge, it won’t be long before Philip K. Dick’s rules for survival become our governing reality: “If, as it seems, we are in the process of becoming a totalitarian society in which the state apparatus is all-powerful, the ethics most important for the survival of the true, free, human individual would be: cheat, lie, evade, fake it, be elsewhere, forge documents, build improved electronic gadgets in your garage that’ll outwit the gadgets used by the authorities.”

Source: https://bit.ly/3PGkWcK

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

Dismantling the Constitution: Police No Longer Have to Honor the Right to Remain Silent

Posted: July 12, 2022 in Uncategorized
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“That was when they suspended the Constitution. They said it would be temporary. There wasn’t even any rioting in the streets. People stayed home at night, watching television, looking for some direction. There wasn’t even an enemy you could put your finger on.”—Margaret Atwood, The Handmaid’s Tale

We are witnessing the gradual dismantling of every constitutional principle that serves as a bulwark against government tyranny, overreach and abuse.

As usual, the latest assault comes from the U.S. Supreme Court.

In a 6-3 ruling in Vega v. Tekoh, the Supreme Court took aim at the Miranda warnings, which require that police inform suspects that they have a right against self-incrimination when in police custody: namely, that they have a right to remain silent, to have an attorney present, and that anything they say and do can and will be used against them in a court of law.

Although the Supreme Court stopped short of overturning its 1966 ruling in Miranda v. Arizona, the conservative majority declared that individuals cannot hold police accountable for violating their Fifth Amendment right to remain silent.

By shielding police from lawsuits arising from their failure to Mirandize suspects, the Supreme Court has sent a message to police that they no longer have to respect a suspect’s right to remain silent.

In other words, concludes legal analyst Nick Sibilla, “the Supreme Court has effectively created a new legal immunity for cops accused of infringing on the Fifth Amendment’s protection against self-incrimination.”

Why is this important?

In totality, the rights enshrined in the Fifth Amendment speak to the Founders’ determination to protect the rights of the individual against a government with a natural inclination towards corruption, tyranny and thuggery.

The Founders were especially concerned with balancing the scales of justice in such a way that the innocent and the accused were not railroaded and browbeaten by government agents into coerced confessions, false convictions, or sham trials.  

Indeed, so determined were the Founders to safeguard the rights of the innocent, even if it meant allowing a guilty person to go free, that Benjamin Franklin insisted, “It is better a hundred guilty persons should escape than one innocent person should suffer.”

Two hundred-plus years later, the Supreme Court (aided and abetted by the police state, Congress and Corporate America) has flipped that longstanding presumption of innocence on its head.

In our present suspect society, “we the people” are all presumed guilty until proven innocent.

With the Vega ruling, we have even fewer defenses for warding off government chicanery, abuse, threats and entrapment.

To be clear, the Supreme Court is not saying that we don’t have the right to remain silent when in police custody. It’s merely saying that we can’t sue the police for violating that right.

It’s a subtle difference but a significant one that could well encourage police to engage in the very sort of egregious misconduct at the heart of the Vega case: in which a police officer investigating a sexual assault isolated a suspect in a small, windowless room; refused him access to a lawyer or work colleagues; accused him of molesting a female patient; threatened him with violence; implied that he and his family would be deported; and terrorized him into signing a false confession dictated by the cop.

Although Terence Tekoh was eventually tried and acquitted, the Supreme Court refused to hold police accountable for browbeating an innocent man into making a false confession.

The Vega ruling threatens to turn the clocks back to a time when police resorted to physical brutality (beating, hanging, whipping) and mental torture in order to obtain confessions from suspects without ever informing them of their Fifth Amendment rights.

This was exactly the kind of misconduct that the Warren Court sought to discourage with its 5-4 ruling in Miranda v. Arizona.

As the Court concluded in Miranda almost 60 years ago:

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

The end result as one analyst notes: “Miranda v. Arizona, in creating the ‘Miranda Rights’ we take for granted today, reconciled the increasing police powers of the state with the basic rights of individuals.”

By largely doing away with Miranda, the Supreme Court has made its present position clear: anything goes if you’re a cop in the American police state.

Indeed, pay close to attention to the Court’s rulings lately, and the broader picture that emerges is of a judiciary that is playing fast and loose with the rule of law, picking and choose which rights to uphold and which can be discarded, in order to expand the power of the police state at the expense of the people’s rights.

If left unchecked, this constitutionally illiterate ruling will open the door to a new era of police abuses.

By shielding police from charges of grave misconduct while throwing the book at Americans for violating any of a rapidly expanding assortment of so-called crimes, the government has created a world in which there are two sets of laws: one set for the government and its gun-toting agents, and another set for you and me.

If you’re a cop in the American police state, you can already break the law in a myriad of ways without suffering any major, long-term consequences.

Indeed, not only are cops protected from most charges of wrongdoing—whether it’s shooting unarmed citizens (including children and old people), raping and abusing young women, falsifying police reports, trafficking drugs, or soliciting sex with minors—but even on the rare occasions when they are fired for misconduct, it’s only a matter of time before they get re-hired again.

For instance, police officer Jackie Neal was accused of putting his hands inside a woman’s panties, lifting up her shirt and feeling her breasts during a routine traffic stop. He remained on the police force. A year later, Neal was accused of digitally penetrating another woman. Still, he wasn’t fired or disciplined.

A few years after that, Neal—then serving as supervisor of the department’s youth program—was suspended for three days for having sex with a teenage girl participating in the program. As Reuters reports, “Neal never lost a dime in pay or a day off patrol: The union contract allowed him to serve the suspension using vacation days.”

Later that same year, Neal was arrested on charges that he handcuffed a woman in the rear seat of his police vehicle and then raped her. He was eventually fined $5,000 and sentenced to 14 months in prison, with five months off for “work and education.” The taxpayers of San Antonio got saddled with $500,000 to settle the case.

Now here’s the kicker: when the local city council attempted to amend the police union contract to create greater accountability for police misconduct, the police unions flexed their muscles and engaged in such a heated propaganda campaign that the city backed down.

This is how perverse justice in America has become, and it’s happening all across the country.

Incredibly, while our own constitutional protections against government abuses continue to be dismantled, a growing number of states are adopting Law Enforcement Officers’ Bill of Rights (LEOBoR)—written by police unions—which provides police officers accused of a crime with special due process rights and privileges not afforded to the average citizen.

In other words, the LEOBoR protects police officers from being treated as we are treated during criminal investigations: questioned unmercifully for hours on end, harassed, harangued, browbeaten, denied food, water and bathroom breaks, subjected to hostile interrogations, and left in the dark about our accusers and any charges and evidence against us.

These LEOBoRs epitomize everything that is wrong with America today.

Now every so often, police officers engaged in wrongdoing are actually charged for abusing their authority and using excessive force against American citizens. Occasionally, those officers are even sentenced for their crimes against the citizenry.

Yet in just about every case, it’s still the American taxpayer who foots the bill.

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.”  

In fact, police officers are more likely to be struck by lightning than be held financially accountable for their actions.

No matter which way you spin it, “we the people” are always on the losing end of the deal.

With the Supreme Court’s ruling in Vega v. Tekoh, the scales of justice have shifted out of balance even more.

Brace yourselves: as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, things are about to get downright ugly.

Source: https://bit.ly/3yzh0TZ

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.

Rogue Cops: The Supreme Court Is Turning America Into a Constitution-Free Zone

Posted: July 5, 2022 in Uncategorized
Tags: , , , , ,
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“No one should get used to their rights. Predicting with certainty which ones, if any, will go, or when, is impossible.”—Mary R. Ziegler, legal historian

The Supreme Court has spoken: there will be no consequences for cops who brutalize the citizenry and no justice for the victims of police brutality.

Although the Court’s 2021-22 rulings on qualified immunity for police who engage in official misconduct were largely overshadowed by its politically polarizing rulings on abortion, gun ownership and religion, they were no less devastating.

The doctrine of qualified immunity was intended to insulate government officials from frivolous lawsuits, but the real purpose of qualified immunity is to ensure that government officials are not held accountable for official misconduct.

In Egbert v. Boule, the Court gave total immunity to Border Patrol agents who beat up a bed-and-breakfast owner, in the process carving out a massive exception to the Fourth Amendment for border police (and by extension, other federal police) who unconstitutionally use excessive force. As journalist Ian Millhiser concludes, “Egbert v. Boule is a severe blow to the proposition that law enforcement must obey the Constitution.”

In Cope v. Cogdill, the Court let stand a Fifth Circuit ruling that granted qualified immunity to jail officials who watched a suicidal inmate strangle himself without intervening or calling for help. Likewise, in Ramirez v. Guadarrama, the Court let stand a lower court ruling granting qualified immunity to police officers who fired their tasers at a suicidal man who had doused himself in gasoline, causing the man to burst into flames.

Both Cope and Ramirez move the goal posts for the kind of misconduct that merits qualified immunity, suggesting that even sheer incompetence is excusable when it involves a cop.

It’s a chilling reminder that in the American police state, ‘we the people’ are 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.”

This is how unarmed Americans keep dying at the hands of militarized police.

Under the guise of qualified immunity, there have been no consequences for police who destroyed a private home by bombarding it with tear gas grenades during a SWAT team raid gone awry, or for the cop who mistakenly shot a 10-year-old boy after aiming for and missing the non-threatening family dog, or for the arresting officer who sicced a police dog on a suspect who had already surrendered.

Qualified immunity is how the police state stays in power.

Although the U.S. Supreme Court recognized in Harlow v. Fitzgerald (1982) that suing government officials for monetary damages is “the only realistic avenue” of holding them accountable for abusing their offices and violating the Constitution, it has ostensibly given the police and other government agents a green light to shoot first and ask questions later, as well as to probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching 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.

Make no mistake about it: this is what constitutes “law and order” in the American police state.

These are the hallmarks of a police state: where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens.

Unfortunately, we’ve been traveling this dangerous road for a long time now.

A review of critical court rulings over the past several decades, including rulings affirming qualified immunity protections for government agents by the U.S. Supreme Court, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order, protecting the ruling class, and insulating government agents from charges of wrongdoing than with upholding the rights enshrined in the Constitution.

Indeed, as Reuters reports, qualified immunity “has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.” Worse, as Reuters concluded, “the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police.”

For instance, police can claim qualified immunity for warrantless searches. In Anderson v. Creighton, the Supreme Court ruled that FBI and state law enforcement agents were entitled to qualified immunity protections after they were sued for raiding a private home without a warrant and holding family members at gunpoint, all in a search for a suspected bank robber who was not in the house.

Police can claim qualified immunity for using excessive force against protesters. In Saucier v. Katz, the Court ruled in favor of federal law enforcement agents who forcefully tackled a protester as he attempted to unfurl a banner at Vice President Gore’s political rally. The Court reasoned that the officers acted reasonably given the urgency of protecting the vice president.

Police can claim qualified immunity for shooting a fleeing suspect in the back. In Brosseau v. Haugen, the Court dismissed a lawsuit against a police officer who shot Kenneth Haugen in the back as he entered his car in order to flee from police. The Court ruled that in light of existing case law, the cop’s conduct fell in the “hazy border between excessive and acceptable force” and so she did not violate clearly established law.

Police can claim qualified immunity for shooting a mentally impaired person. In City of San Francisco v. Sheehan, the Court ruled in favor of police who repeatedly shot Teresa Sheehan during the course of a mental health welfare check. The Court ruled that it was not unreasonable for police to pepper spray and shoot Sheehan multiple times after entering her room without a warrant and encountering her holding a knife.

Police officers can use lethal force in car chases without fear of lawsuits. In Plumhoff v. Rickard, the U.S. Supreme Court declared that police officers who used deadly force to terminate a car chase were immune from a lawsuit. The officers were accused of needlessly resorting to deadly force by shooting multiple times at a man and his passenger in a stopped car, killing both individuals.

Police can stop, arrest and search citizens without reasonable suspicion or probable cause. In a 5-3 ruling in Utah v. Strieff, the U.S. Supreme Court effectively gave police the go-ahead to embark on a fishing expedition of one’s person and property, rendering Americans completely vulnerable to the whims of any cop on the beat.

Police officers can stop cars based on “anonymous” tips or for “suspicious” behavior such as having a reclined car seat or driving too carefully. In a 5-4 ruling in Navarette v. California, the U.S. Supreme Court declared that police officers, under the guise of “reasonable suspicion,” can stop cars and question drivers based solely on anonymous tips, no matter how dubious, and whether or not they themselves witnessed any troubling behavior. Then in State v. Howard, the Kansas Supreme Court declared that motorists who recline their car seats are guilty of suspicious behavior and can be subject to warrantless searches by police. That ruling, coupled with other court rulings upholding warrantless searches and seizures by police renders one’s car a Constitution-free zone.

Americans have no protection against mandatory breathalyzer tests at a police checkpoint, although mandatory blood draws violate the Fourth Amendment (Birchfield v. North Dakota). Police can also conduct sobriety and “information-seeking” checkpoints (Illinois v. Lidster and Mich. Dep’t of State Police v. Sitz).

Police can forcibly take your DNA, whether or not you’ve been convicted of a crime. In Maryland v. King, a divided U.S. Supreme Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA. Once again the Court sided with the guardians of the police state over the defenders of individual liberty in determining that DNA samples may be extracted from people arrested for “serious” offenses. The end result of the ruling paves the way for a nationwide dragnet of suspects targeted via DNA sampling.

Police can use the “fear for my life” rationale as an excuse for shooting unarmed individuals. Upon arriving on the scene of a nighttime traffic accident, an Alabama police officer shot a driver exiting his car, mistakenly believing the wallet in his hand to be a gun. A report by the Justice Department found that half of the unarmed people shot by one police department over a seven-year span were “shot because the officer saw something (like a cellphone) or some action (like a person pulling at the waist of their pants) and misidentified it as a threat.”

Police have free reign to use drug-sniffing dogs as “search warrants on leashes.” In Florida v. Harris, a unanimous U.S. Supreme Court determined that police officers may use highly unreliable drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. The ruling turns man’s best friend into an extension of the police state, provided the use of a K-9 unit takes place within a reasonable amount of time (Rodriguez v. United States).

Not only are police largely protected by qualified immunity, but police dogs are also off the hook for wrongdoing. The Fourth Circuit Court of Appeals ruled in favor of a police officer who allowed a police dog to maul a homeless man innocent of any wrongdoing.

Police can subject Americans to strip searches, no matter the “offense.” A divided U.S. Supreme Court actually prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches. In its 5-4 ruling in Florence v. Burlington, the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials, which involves exposing the genitals and the buttocks. This “license to probe” is now being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches—some involving anal and vaginal probes—without any evidence of wrongdoing and without a warrant.

Police can break into homes without a warrant, even if it’s the wrong home. In an 8-1 ruling in Kentucky v. King, the U.S. 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 or apartments without a warrant. Despite the fact that the police in question ended up pursuing the wrong suspect, invaded the wrong apartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by police.

Police can use knock-and-talk tactics as a means of sidestepping the Fourth Amendment. Aggressive “knock and talk” practices have become thinly veiled, warrantless exercises by which citizens are coerced and intimidated into “talking” with heavily armed police who “knock” on their doors in the middle of the night. Andrew Scott didn’t even get a chance to say no to such a heavy-handed request before he was gunned down by police who pounded aggressively on the wrong door at 1:30 a.m., failed to identify themselves as police, and then repeatedly shot and killed the man when he answered the door while holding a gun in self-defense.

Police can carry out no-knock raids if they believe announcing themselves would be dangerous. Police can perform a “no-knock” raid as long as they have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile or give occupants a chance to destroy evidence of a crime (Richards v. Wisconsin). Legal ownership of a firearm is also enough to justify a no-knock raid by police (Quinn v. Texas). For instance, a Texas man had his home subject to a no-knock, SWAT-team style forceful entry and raid based solely on the suspicion that there were legally-owned firearms in his household. The homeowner was actually shot by police through his closed bedroom door.

Police can recklessly open fire on anyone that might be “armed.” Philando Castile was shot and killed during a routine traffic stop allegedly over a broken taillight merely for telling police he had a conceal-and-carry permit. That’s all it took for police to shoot Castile four times in the presence of his girlfriend and her 4-year-old daughter. A unanimous Supreme Court declared in County of Los Angeles vs. Mendez that police should not be held liable for recklessly firing 15 times into a shack where a homeless couple had been sleeping because the grabbed his BB gun in defense, fearing they were being attacked.

Police can destroy a home during a SWAT raid, even if the owner gives their consent to enter and search it. In West v. Winfield, the Supreme Court provided cover to police after they smashed the windows of Shaniz West’s home, punched holes in her walls and ceilings, and bombed the house with so much tear gas that it was uninhabitable for two months. All of this despite the fact that the suspect they were pursuing was not in the house and West, the homeowner, agreed to allow police to search the home to confirm that.

Police can suffocate someone, deliberately or inadvertently, in the process of subduing them. “I can’t breathe” has become a rallying cry following the deaths of Eric Garner and George Floyd, both of whom died after being placed in a chokehold by police. Dozens more have died in similar circumstances at the hands of police who have faced little repercussions for these deaths.

Clearly, as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, the system is rigged.

Because the system is rigged, because the government is corrupt, and because the U.S. Supreme Court has consistently chosen to protect the police at the expense of the people, we are dealing with a nationwide epidemic of court-sanctioned police violence carried out with impunity against individuals posing little or no real threat.

This is how “we the people” keep losing.

Source: https://bit.ly/3NMzEgX

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

Publication Guidelines / Reprint Permission

John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.