Posts Tagged ‘excessive force’

“The first and most important thing to understand about politics is this: forget Right, Left, Center, socialism, fascism, or democracy. Every government that exists — or ever existed, or ever will exist — is a kleptocracy, meaning ‘rule by thieves.’ Competing ideologies merely provide different excuses to separate the Productive Class from what they produce. If the taxpayer/voters won’t willingly fork over to end poverty, then maybe they’ll cough up to fight drugs or terrorism. Conflicting ideologies, as presently constituted, are nothing more than a cover for what’s really going on, like the colors of competing gangs.” — Author L. Neil Smith

The American kleptocracy (a government ruled by thieves) continues to suck the American people down a rabbit hole into a parallel universe in which the Constitution is meaningless, the government is all-powerful, and the citizenry is powerless to defend itself against government agents who steal, spy, lie, plunder, kill, abuse and generally inflict mayhem and sow madness on everyone and everything in their sphere.

Case in point: in the same week that Wikileaks dropped its bombshell about the CIA’s use of spy tools to subject law-abiding Americans to all manner of government surveillance and hacking—a revelation that caused barely a ripple of concern among the citizenry—the government quietly and with little fanfare continued to wage its devastating, stomach-churning, debilitating war on the American people.

Incredibly, hardly anyone noticed.

This begs the question: if the government is overstepping its authority, abusing its power, and disregarding the rule of law but no one seems to notice—and no one seems to care—does it matter if the government has become a tyrant?

Here’s my short answer: when government wrongdoing ceases to matter, America will have ceased to be.

Just consider the devastation wrought in one week in the life of our American kleptocracy:

On Monday, March 6, police were given the go-ahead to keep stealing from Americans who were innocent of any wrongdoing.

In refusing to hear a challenge to Texas’ asset forfeiture law, the U.S. Supreme Court allowed Texas police to keep $201,000 in ill-gotten cash primarily on the basis that the seized cash—the proceeds of a home sale—was being transported on a highway associated with illegal drug trade, despite any proof of illegal activity by the owner. Asset forfeiture laws, which have come under intense scrutiny and criticism in recent years, allow the police to seize property “suspected” of being connected to criminal activity without having to prove the owner of the property is guilty of a criminal offense.

On April 1, 2013, James Leonard was driving with a companion, Nicosa Kane, on U.S. Highway 59 in Texas when the vehicle was stopped by a state police officer for allegedly speeding and following another vehicle too closely. A subsequent search of the vehicle disclosed a safe in the trunk, which Leonard explained belonged to his mother, Lisa Leonard, and contained cash. When the police officer contacted Lisa Leonard, she confirmed that the safe’s contents belonged to her, that the contents constituted personal business, and that she would not consent to allowing the officer to open the safe. After police secured a search warrant, the safe was opened and found to contain $201,000 and a bill of sale for a home in Pennsylvania.

Neither the Leonards nor Kane were found to be in possession of illegal drugs. However, the state initiated civil forfeiture proceedings against the $201,100 on the ground that it was substantially connected to criminal activity because Highway 59 is reputed to be a drug corridor. At trial, Lisa Leonard testified that the money was being sent to Texas so that she could use it to purchase a home for her son and Kane. Both the trial and appeals courts affirmed the authority of state officials to seize and keep Leonard’s funds under the state’s asset forfeiture law, basing their ruling on wholly circumstantial evidence and the reputation of Highway 59. Leonard then asked the U.S. Supreme Court to compel Texas to return her money, given that she was innocent of any crime. In refusing to hear the case on a technicality, the Supreme Court turned its back on justice and allowed the practice of policing for profit to continue.

On Tuesday, March 7, hacked information about the surveillance state was met with a collective shrug by the public, a sign of how indifferent the citizenry has become to living in an electronic concentration camp.

Wikileaks confirmed what we’ve suspected all along: the government’s ability to spy on law-abiding Americans is far more invasive than what we’ve been told. According to the Wikileaks Vault 7 data dump, government agencies such as the CIA and the NSA have been spying on the citizenry through our smart TVs, listening in on our phone calls, hacking into our computerized devices (including our cars), and compromising our security systems through the use of Trojan horses, spyware and malware.

As this Wikileaks revelation confirms, we now have a fourth branch of government. 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.

You might know this branch of government as Surveillance, but I prefer “technotyranny,” a term coined by investigative journalist James Bamford to refer to an age of technological tyranny made possible by government secrets, government lies, government spies and their corporate ties. 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.

Privacy, as we have known it, is dead.

On Wednesday, March 8, police were given further incentives to 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. From the time the driver stumbled out of his car, waving his wallet in the air, to the time he was shot in the abdomen, only six seconds had elapsed. Although the Eleventh Circuit Court of Appeals concluded “that a reasonable officer in Hancock’s position would have feared for his life,” the video footage makes clear that the courts continue to march in lockstep with the police, because no reasonable person would shoot first and ask questions later.

A report by the Justice Department on police shootings in Philadelphia, which boasts the fourth largest police department in the country, found that half of the unarmed people shot by police 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.”

What exactly are we teaching these young officers in the police academy when the slightest thing, whether it be a hand in a pocket, a man running towards them, a flashlight on a keychain, a wallet waved in a hand, or a dehumanizing stare can ignite a strong enough “fear for their safety” to justify doing whatever is deemed necessary to neutralize the threat, even if it means firing on an unarmed person?

On Thursday, March 9, police were given even more leeway in how much damage they can inflict on those they serve and the extent to which they can disregard the Constitution.  

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. The case arose in 2010 after a police dog attacked a homeless man near an abandoned house where police were tracking a robbery suspect. The cop refused to call off the dog immediately, despite the man’s pleading and the fact that he did not match the description of the robbery suspect. The homeless man suffered deep bites on his hand, arm and thigh, that required a nearly 16-inch skin graft, as well as severe bleeding, bruising, swelling and an arterial blood clot. Incredibly, not only did the court declare that the police officer was protected by qualified immunity, which incentivizes government officials to violate constitutional rights without fear of repercussion, but it had the nerve to suggest that being mauled by a police dog is the equivalent of a lawful Terry stop in which police may stop and hold a person for questioning on the basis of “reasonable suspicion.”

Also on March 9, government officials assured the Michigan Supreme Court that there was nothing unlawful, unreasonable or threatening about the prospect of armed police dressed in SWAT gear knocking on doors at 4 a.m. and “asking” homeowners to engage in warrantless “knock-and-talk” sessions. Although government lawyers insist citizens can choose to say no to such heavy-handed requests by police to conduct unwarranted interrogations, if such coercive tactics are allowed, it would give SWAT teams further incentive to further terrorize anyone even remotely—or mistakenly—suspected of wrongdoing without fear of repercussion.

On Friday, March 10, the military industrial complex continued to wage war abroad, while government agencies, including members of the military, remained embroiled in controversies over sexual misconduct.

A day after military brass defended the U.S.-led raid in Yemen that killed 10 children and at least six women, Gen. Joseph Votel, the head of U.S. Central Command, informed members of Congress that even more U.S. troops were needed in Afghanistan to combat the Taliban. Some 8400 American troops have been stationed in Afghanistan since the U.S. invaded the country post 9/11. Approximately 400 more Marines are being sent to Syria to aid U.S. forces in their fight against ISIS.

That same day, news reports indicated that members of several branches of the U.S. military, including the Marines, have been using online bulletin boards to either share or solicit nude or explicit photos and videos of women in the military. One Facebook page for Marines, which has nearly 30,000 followers, contained graphic language about how the women photographed, some without their knowledge or consent, should be treated. As the Center for Investigative Reporting (CIR) revealed, “One member of the Facebook group suggested that the service member sneaking the photos should ‘take her out back and pound her out.’ Others suggested more than vaginal sex: ‘And butthole. And throat. And ears. Both of them. Video it though … for science.’” According to CIR, the photo sharing began less than a month after the first Marine infantry unit was assigned women.

The FBI has also been getting in on the photo-sharing gig, only its agents have been distributing child porn, allegedly in an effort to catch consumers of child porn. Curiously, the Department of Justice has opted to drop its case against a man accused of child pornography rather than be forced to disclose the FBI’s tactics for spying on suspected child porn consumers and entrapping them as part of its Operation Pacifier sting. What the case revealed was that for a little while, in its single-minded pursuit of lawbreakers, the FBI became a lawbreaker itself as the largest distributor of child pornography. All told, the FBI uploaded tens of thousands of images of child pornography to the “dark web.”

As reporter Bryan Clark points out:

At the intersection of technology and law, we’ve proven two things as the result of Operation Pacifier: 1. Government bodies have proven their willingness to circumvent — or even break — the law to capture suspected criminals it’s not even willing to prosecute. 2. We’re living in an age where — to agencies like the FBI — criminals and their victims are less important than the tools used to track them down. It’s hard to argue on the side of an alleged pedophile. But in this case, the FBI was the pedophile’s equal. It was the agency, you’ll recall, that disseminated these images to some 150,000 registered members… this means the FBI perpetrated the same heinous crime it attempted to charge others with, all while securing what could result in zero convictions.

Mind you, this was just one week of shootings, degradation, excessive force, abuse of power and complicity in the American police state. Magnify the impact of these events 52 times over, because they are taking place every week in this country, and you will find yourself weak at the knees.

Somewhere over the course of the past 240-plus years, democracy has given way to kleptocracy, and representative government has been rejected in favor of rule by career politicians, corporations and thieves—individuals and entities with little regard for the rights of American citizens.

This dissolution of that sacred covenant between the citizenry and the government—establishing “we the people” as the masters and the government as the servant—didn’t happen overnight. It didn’t happen because of one particular incident or one particular president. It is a process, one that began long ago and continues in the present day, aided and abetted by politicians who have mastered the polarizing art of how to “divide and conquer.”

Unfortunately, there is no magic spell to transport us back to a place and time where “we the people” weren’t merely fodder for a corporate gristmill, operated by government hired hands, whose priorities are money and power.

Our freedoms have become casualties in an all-out war on the American people.

As I make clear in my book Battlefield America: The War on the American People, this war is being fought on many fronts, with bullets and tasers, with surveillance cameras and license readers, with intimidation and propaganda, with court rulings and legislation, with the collusion of every bureaucrat on the government’s payroll, and most effectively of all, with the complicity of the American people, who continue to allow themselves to be easily manipulated by their politics, distracted by their pastimes, and acclimated to a world in which government corruption is the norm.

How do we stop the hemorrhaging?

Start by waking up. Pay attention to what’s going on around you. Most of all, think for yourself.

As H. L. Mencken observed:

The most dangerous man to any government is the man who is able to think things out for himself, without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane and intolerable, and so, if he is romantic, he tries to change it. And even if he is not romantic personally he is very apt to spread discontent among those who are.

WC: 2468

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at http://www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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“No man in the wrong can stand up against a fellow that’s in the right and keeps on a-comin’.”—Texas Rangers

In one swoop, on June 22, 2015, a divided U.S. Supreme Court handed down three consecutive rulings affirming the right of raisin farmers, hotel owners and prison inmates. However, this push back against government abuse, government snooping and government theft only came about because some determined citizens stood up and took a stand against tyranny.

The three cases respectively deal with the government’s confiscation of agricultural crops without any guarantee or promise of payment (Horne v. U.S. Department of Agriculture); the practice of police gaining unfettered access to motel and hotel guest registries (City of Los Angeles v. Patel); and the use of tasers and excessive force by prison officials (Kingsley v. Hendrickson).

Whether these three rulings will amount to much in the long run remains to be seen. In the meantime, they sound a cautiously optimistic note at a time when police state forces continue to use advancing technologies, surveillance and militarization to weaken, sidestep and flout the Constitution at almost every turn.

In the first case, Horne v. U.S. Department of Agriculture, a 5-4 Supreme Court declared that raisin farmer Marvin Horne deserves to be compensated for the official seizure of one-third of his personal property by the government.

The case arose after independent raisin farmers in California were fined almost $700,000 for refusing to surrender about 40% of the raisins they produced to the government as part of a program purportedly aimed at maintaining a stable market for commodities.

Marvin and Laura Horne are independent farmers in California and have been growing raisins for almost half a century. During that time, the Hornes were subject to a Depression-era law promulgated by the U.S. Department of Agriculture that aims to create “orderly” market conditions for raisins by regulating their supply. Supply is regulated by requiring that raisin producers surrender a certain percentage of their raisins (a so-called “reserve tonnage”) each year to an administrative committee.

In 2002-2003, the reserve tonnage was set at 47% of the crop. The reserve tonnage may be sold by the government with the government paying itself first for administrative costs, and then providing pro rata payments to participating farmers. However, in 2002-2003, raisin farmers received payments that did not cover the expenses of production and in 2003-2004, no payments whatsoever were made for reserve tonnage raisins.

Although the Hornes attempted to arrange their operation to avoid having to give up part of their crop, the USDA assessed a monetary penalty of $695,226 against the Hornes for having failed to surrender raisins they produced between 2002 and 2004. The Hornes appealed this order, arguing that the requirement that they surrender, on pain of monetary penalty, a percentage of their property without any guarantee of compensation violated the command of the Fifth Amendment to the U.S. Constitution that private property shall not be taken for public use without just compensation. However, the U.S. Court of Appeals for the Ninth Circuit determined that the Fifth Amendment affords less protection to personal property than real property (land), and upheld the penalties. The Hornes subsequently appealed that ruling to the U.S. Supreme Court, arguing that the Fifth Amendment’s prohibition on government confiscation of property applies not only to the appropriation of land but with full and equal force to personal property such as agricultural crops.

Battlefield_Cover_300The bigger picture: Whether you’re talking about raisins confiscated by the USDA, homes expropriated by government agencies under the rubric of eminent domain, or cars and cash seized by asset forfeiture-driven highway police, these various takings all add up to the same thing: government theft sanctioned by an endless assortment of arcane laws. Unfortunately, as I point out in my book Battlefield America: The War on the American People, the lines between private and public property have been so blurred that private property is reduced to little more than something the government can use to control, manipulate and harass the citizenry to suit its own purposes, while ‘we the people’ have been reduced to little more than tenants or serfs in bondage to an overbearing landlord. This is feudalism revisited.

In the second case handed down on June 22 (City of Los Angeles v. Patel), a 5-4 Supreme Court struck down a Los Angeles ordinance that permits the police to check guest registries at motels and hotels at any hour of the day or night without a warrant or other judicial review.

Section 41.49 of the City of Los Angeles Municipal Code requires all hotel owners to maintain a registry that collects information about persons staying at the hotel, including their names, addresses, vehicle information, arrival and departure dates, room prices, and payment methods.

Under this law, it is a crime for a guest to provide false or misleading information in registering at the hotel. The law also requires that hotels make these records available to any officer of the Los Angeles Police Department for inspection on demand, thereby allowing law enforcement officers to inspect this information at any time regardless of whether there is consent to the inspection or a warrant allowing it. Additionally, police need not have any measure of suspicion in order to review hotel registries under the ordinance and there need not be any history of criminal activity at the hotel. A hotel operator is guilty of a crime if he or she refuses to allow inspection.

In 2005, the Los Angeles Lodging Association and various owners and operators of hotels and motels in the city filed a lawsuit challenging the requirement of the ordinance that they grant unfettered access to their guest registries, arguing that the ordinance is a patent violation of the Fourth Amendment’s protection of persons’ houses, papers and effects against “unreasonable searches and seizures.”

In December 2013, the U.S. Court of Appeals for the Ninth Circuit upheld the hotel owners’ claims, ruling that the inspection of hotel registries by police is clearly a search for purposes of the Fourth Amendment. The Ninth Circuit also rejected the claim that hotels are a “closely regulated” industry that should expect government inspections, thereby holding that police are not excused from the general search warrant requirement.

Citing a fundamental right to privacy, travel and association, civil liberties advocates argued that the ordinance, which is similar to laws on the books in cities across the nation, flies in the face of historical protections affording hotel guests privacy in regards to their identities and comings-and-goings and burdens the fundamental rights of travel and association. Moreover, police should not be given carte blanche to rummage through records containing highly personal information because this could chill the exercise of other constitutional rights, such as the right to travel and the right of association.

The bigger picture: The practice of giving police officers unfettered, warrantless access to Americans’ hotel records is no different from the government’s use of National Security Letters to force banks, phone companies, casinos and other businesses to secretly provide the FBI with customer information such as telephone records, subscriber information, credit reports, employment information, and email records and not disclose the demands. Both ploys are merely different facets of the government’s campaign to circumvent, by hook or by crook, the clear procedural safeguards of the Fourth Amendment and force business owners to act as extensions of the police state.

In the last case, a 5-4 U.S. Supreme Court ruled in Kingsley v. Hendrickson that a lower court used an improper test to determine whether guards used excessive force against a pretrial detainee.

The case involves a Wisconsin man who alleged that he was subjected to unreasonable and excessive force in reckless disregard for his safety when prison guards forcibly removed him from his jail cell and subdued him with a stun gun.

In 2010, Michael Kingsley was arrested and booked into the jail in Sparta, Wisconsin, and detained there pending his court appearances on the charges against him. About a month into his detention, guards noticed that a sheet of yellow paper was covering the light above Kingsley’s bed, which was a common practice among detainees in order to dim the brightness of the facilities lights. The guards ordered Kingsley to remove the paper, but he refused, pointing out that he had not put the paper over the light.

The next morning, Kingsley was again ordered to remove the paper and again he refused. The jail administrator was then called, who told Kingsley he would be transferred to another cell. Five officers then came to the cell and ordered Kingsley to stand up. Kingsley protested that he had done nothing wrong, but was told to follow the order or he would be tasered.

Kingsley continued to lie face down on his bunk but put his hands behind his back and was handcuffed. The officers pulled Kingsley off the bunk, which allegedly caused injuries to his knees and feet and inflicted pain so severe Kingsley could not stand or walk. The officers then carried him to a receiving cell, placed him face down on a bunk and attempted to remove the handcuffs.

Although Kingsley denied that he resisted, the officers allegedly smashed his head into the concrete bunk and placed a knee into his back. When Kingsley told the officer to get off him, one of the officers tasered Kingsley for five seconds. As a result of this incident, Kingsley sued several officers involved, alleging that they used excessive force against him and that this violated his constitutional right to due process. A jury ruled against Kingsley, who subsequently lost his appeal to the U.S. Court of Appeals for the Seventh Circuit. Weighing in on the case, civil liberties advocates asked the Supreme Court to remove restrictions some courts have imposed on civil rights lawsuits for excessive force by inmates against jail personnel, thereby discouraging the use of excessive force by prison officials.

The bigger picture: In a police state, there is no need for judges, juries or courts of law, because the police act as judge, jury and law, and their version of justice is one-sided, delivered at the end of a gun, taser or riot stick. Unless the courts and legislatures act soon to change this climate of government-sanctioned police brutality, we may find that there is no real difference between those who are innocent, those accused of committing crimes and those found guilty, because we will all suffer the same at the hands of government agents.

Taken individually, these three cases may appear to be little more than small, procedural slaps on the wrist to government agencies that are so bloated, out-of-control and unaccountable as to scarcely register the slaps. However, taken together they serve as a potent reminder of what happens when a determined citizenry takes a collective stand against government abuse. That said, if “we the people” don’t keep pushing back, standing up, and holding government officials accountable to the rule of law, these victories will do little to keep government bureaucrats off the backs of the American citizenry.