Posts Tagged ‘Fifth Amendment’

The Jackboots Are Coming: Mass Arrests, Power Grabs and the Politics of Fear

Posted: June 19, 2019 in Uncategorized
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“Never has our future been more unpredictable, never have we depended so much on political forces that cannot be trusted to follow the rules of common sense and self-interest—forces that look like sheer insanity, if judged by the standards of other centuries.” ― Hannah Arendt, The Origins of Totalitarianism

How do you persuade a populace to embrace totalitarianism, that goose-stepping form of tyranny in which the government has all of the power and “we the people” have none?

You persuade the people that the menace they face (imaginary or not) is so sinister, so overwhelming, so fearsome that the only way to surmount the danger is by empowering the government to take all necessary steps to quash it, even if that means allowing government jackboots to trample all over the Constitution.

This is how you use the politics of fear to persuade a freedom-loving people to shackle themselves to a dictatorship.

It works the same way every time.

The government’s overblown, extended wars on terrorism, drugs, violence and illegal immigration have been convenient ruses used to terrorized the populace into relinquishing more of their freedoms in exchange for elusive promises of security.

The more things change, the more they stay the same.

Case in point: on June 17, the same day President Trump announced that the government would be making mass arrests in order to round up and forcibly remove millions of illegal immigrants—including families and children—from the country, the U.S. Supreme Court handed down a ruling in Gamble v. United States that placed the sovereignty (i.e., the supreme power or authority) of federal and state governments over that of the citizenry, specifically as it relates to the government’s ability to disregard the Constitution’s Double Jeopardy Clause.

At first glance, the two incidents—one relating to illegal immigration and the other to the government’s prosecutorial powers—don’t have much to do with each other, and yet there is a common thread that binds them together.

That common thread speaks to the nature of the government beast we have been saddled with and how it views the rights and sovereignty of “we the people.”

Now you don’t hear a lot about sovereignty anymore.

Sovereignty is a dusty, antiquated term that harkens back to an age when kings and emperors ruled with absolute power over a populace that had no rights. Americans turned the idea of sovereignty on its head when they declared their independence from Great Britain and rejected the absolute authority of King George III. In doing so, Americans claimed for themselves the right to self-government and established themselves as the ultimate authority and power.

In other words, in America, “we the people”— sovereign citizens—call the shots.

So when the government acts, it is supposed to do so at our bidding and on our behalf, because we are the rulers.

That’s not exactly how it turned out, though, is it?

In the 200-plus years since we boldly embarked on this experiment in self-government, we have been steadily losing ground to the government’s brazen power grabs, foisted upon us in the so-called name of national security.

The government has knocked us off our rightful throne. It has usurped our rightful authority. It has staged the ultimate coup. Its agents no longer even pretend that they answer to “we the people.”

So you see, the two incidents on June 17 were not hugely significant in and of themselves.

Trump’s plan to carry out mass arrests of anyone the government suspects might be an illegal immigrant, and the Supreme Court’s recognition that the government can sidestep the Constitution for the sake of expediency are merely more of the same abuses that have been heaped upon us in recent years.

Yet these incidents speak volumes about how far our republic has fallen and how desensitized “we the people” have become to this constant undermining of our freedoms.

How do we reconcile the Founders’ vision of our government as an entity whose only purpose is to serve the people with the police state’s insistence that the government is the supreme authority, that its power trumps that of the people themselves, and that it may exercise that power in any way it sees fit (that includes government agents crashing through doors, mass arrests, ethnic cleansing, racial profiling, indefinite detentions without due process, and internment camps)?

They cannot be reconciled. They are polar opposites.

We are fast approaching a moment of reckoning where we will be forced to choose between the vision of what America was intended to be (a model for self-governance where power is vested in the people) and the reality of what she has become (a police state where power is vested in the government).

This slide into totalitarianism—helped along by overcriminalization, government surveillance, militarized police, neighbors turning in neighbors, privatized prisons, and forced labor camps, to name just a few similarities—is tracking very closely with what happened in Germany in the years leading up to Hitler’s rise to power.

We are walking a dangerous path right now.

The horrors of the Nazi concentration camps weren’t kept secret from the German people. They were well-publicized. As The Guardian reports:

The mass of ordinary Germans did know about the evolving terror of Hitler’s Holocaust… They knew concentration camps were full of Jewish people who were stigmatised as sub-human and race-defilers. They knew that these, like other groups and minorities, were being killed out of hand. They knew that Adolf Hitler had repeatedly forecast the extermination of every Jew on German soil. They knew these details because they had read about them. They knew because the camps and the measures which led up to them had been prominently and proudly reported step by step in thousands of officially-inspired German media articles and posters… The reports, in newspapers and magazines all over the country were phases in a public process of “desensitisation” which worked all too well, culminating in the killing of 6m Jews….

Likewise, the mass of ordinary Americans are fully aware of the Trump Administration’s efforts to stigmatize and dehumanize any and all who do not fit with the government’s plans for this country.

These mass arrests of anyone suspected of being an illegal immigrant may well be the shot across the bow.

You see, it’s a short hop, skip and a jump from allowing government agents to lock large swaths of the population up in detention centers unless or until they can prove that they are not only legally in the country to empowering government agents to subject anyone—citizen and noncitizen alike—to similar treatment unless or until they can prove that they are in compliance with every statute and regulation on the books, and not guilty of having committed some crime or other.

It’s no longer a matter of if, but when.

You may be innocent of wrongdoing now, but when the standard for innocence is set by the government, no one is safe. Everyone is a suspect, and anyone can be a criminal when it’s the government determining what is a crime.

Remember, the police state does not discriminate.

At some point, once the government has been given the power to do whatever it wants—the Constitution be damned—it will not matter whether you’re an illegal immigrant or a citizen by birth, a law-breaker or someone who marches in lockstep with the government’s dictates. Government jails will detain you just as easily whether you’ve obeyed every law or broken a dozen. And government agents will treat you like a suspect, whether or not you’ve done anything wrong, simply because they have been trained to view and treat everyone like potential criminals.

Eventually, all that will matter is whether some government agent—poorly trained, utterly ignorant of the Constitution, way too hyped up on the power of their badges, and authorized to detain, search, interrogate, threaten and generally harass anyone they see fit—chooses to single you out for special treatment.

We’ve been having this same debate about the perils of government overreach for the past 50-plus years, and still we don’t seem to learn, or if we learn, we learn too late.

All of the excessive, abusive tactics employed by the government today—warrantless surveillance, stop and frisk searches, SWAT team raids, roadside strip searches, asset forfeiture schemes, private prisons, indefinite detention, militarized police, etc.—started out as a seemingly well-meaning plan to address some problem in society that needed a little extra help.

Be careful what you wish for: you will get more than you bargained for, especially when the government’s involved.

Remember, nothing is ever as simple as the government claims it is.

The war on drugs turned out to be a war on the American people, waged with SWAT teams and militarized police.

The war on terror turned out to be a war on the American people, waged with warrantless surveillance and indefinite detention.

The war on immigration is turning out to be yet another war on the American people, waged with roving government agents demanding “papers, please.”

Whatever dangerous practices you allow the government to carry out now—whether it’s in the name of national security or protecting America’s borders or making America great again—rest assured, these same practices can and will be used against you when the government decides to set its sights on you.

If you’re inclined to advance this double standard because you believe you have done nothing wrong and have nothing to hide, beware: there’s always a boomerang effect.

As commentator Shaun Kenney observed:

What civil liberties are you willing to surrender in the apprehension of 12 million people? Knock and drags? Detention centers? Checkpoints? House-to-house searches? Papers, please? Will we be racially profiling folks to look for or are we talking about people of Chinese… Indian… Irish… Polish… Italian… people-who-might-look-like-you descent as well? If the federal government makes a 1% rounding error and accidentally deports an American citizen, that’s 120,000 Americans… what means will be used to restore their rights? Who will remunerate them for their financial loss? Restore their lost homes? Personal property? Families? … What happens when these means are turned against some other group of undesirables in America by a president who does not share your political persuasion, but can now justify the act based on previous justifications?

We are all at risk.

The law of reciprocity applies here. The flip side of that Golden Rule, which calls for us to treat others as we would have them treat us, is that we shouldn’t inflict on others what we wouldn’t want to suffer ourselves.

In other words, if you don’t want to be locked up in a prison cell or a detention camp—if you don’t want to be discriminated against because of the color of your race, religion, politics or anything else that sets you apart from the rest—if you don’t want your loved ones shot at, strip searched, tasered, beaten and treated like slaves—if you don’t want to have to be constantly on guard against government eyes watching what you do, where you go and what you say—if you don’t want to be tortured, waterboarded or forced to perform degrading acts—if you don’t want your children to be forcibly separated from you, caged and lost—then don’t allow these evils to be inflicted on anyone else, no matter how compelling a case the government makes for it or how fervently you believe in the cause.

You can’t have it both ways.

You can’t live in a constitutional republic if you allow the government to act like a police state.

You can’t claim to value freedom if you allow the government to operate like a dictatorship.

You can’t expect to have your rights respected if you allow the government to treat whomever it pleases with disrespect and an utter disregard for the rule of law.

Indeed, when the government is allowed to operate as a law unto itself, the rule of law itself becomes illegitimate. As Martin Luther King Jr. pointed out in his Letter from a Birmingham Jail, “everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal.’ It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany.”

In other words, there comes a time when law and order are in direct opposition to justice.

Isn’t that what the American Revolution was all about?

Finally, if anyone suggests that the government’s mass immigration roundups and arrests are just the government doing its job to fight illegal immigration, don’t buy it.

This is not about illegal immigration. It’s about power and control.

It’s about testing the waters to see how far the American people will allow the government to go in re-shaping the country in the image of a totalitarian police state.

It’s about the rise of an “emergency state” that justifies all manner of government misconduct and power grabs in the so-called name of national security.

It’s about how much tyranny “we the people” will tolerate before we find our conscience and our voice.

It’s about how far we will allow the government to go in its efforts to distract and divide us and turn us into a fearful, easily controlled populace.

Ultimately, it’s about whether we believe—as the Founders did—that our freedoms are inherently ours and that the government is only as powerful as we allow it to be. Freedom does not flow from the government. It was not given to us, to be taken away at the will of the State. In the same way, the government’s appointed purpose is not to threaten or undermine our freedoms, but to safeguard them.

We must get back to this way of thinking if we are to ever stand our ground in the face of threats to those freedoms.

As I make clear in my book Battlefield America: The War on the American People, it’s time to draw that line in the sand.

The treatment being meted out to anyone that looks like an illegal immigrant is only the beginning. Eventually we will all be in the government’s crosshairs for one reason or another.

This is the start of the slippery slope.

Martin Niemöller understood this. A Lutheran minister who was imprisoned and executed for opposing Hitler’s regime, Niemoller warned:

First they came for the Socialists, and I did not speak out—Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out—Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out—Because I was not a Jew. Then they came for me—and there was no one left to speak for me.

Source: https://bit.ly/2WWkfjO

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  is available at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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Keeping Government Bureaucrats Off the Backs of the Citizenry: The Supreme Court Responds

Posted: June 22, 2015 in Uncategorized
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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.

 

Governmental Highway Robbery: Asset Forfeiture and the Pillaging of the American People

Posted: March 28, 2013 in Uncategorized
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“This is the problem when police officers and police departments have a financial interest in doing their job. We got rid of bounty hunters because they were not a good thing. This is modern day bounty hunting.”—Public Defender John Rekowski

Long before Americans charted their revolutionary course in pursuit of happiness, it was “life, liberty, and property” which constituted the golden triad of essential rights that the government was charged with respecting and protecting. To the colonists, smarting from mistreatment at the hands of the British crown, protecting their property from governmental abuse was just as critical as preserving their lives and liberties. As the colonists understood, if the government can arbitrarily take away your property, you have no true rights. You’re nothing more than a serf or a slave.

The Fifth Amendment to the U.S. Constitution was born of this need to safeguard against any attempt by the government to unlawfully deprive a citizen of the right to life, liberty, or property, without due process of law. Little could our ancestral forebears have imagined that it would take less than three centuries of so-called “independence” to once again render us brow-beaten subjects in bondage to an overlord bent on depriving us of our most inalienable and fundamental rights.

The latest governmental scheme to deprive Americans of their liberties—namely, the right to property—is being carried out under the guise of civil asset forfeiture, a government practice wherein government agents (usually the police) seize private property they “suspect” may be connected to criminal activity. Then—and here’s the kicker—whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property, often divvying it up with the local police who did the initial seizure.

For example, the federal government recently attempted to confiscate Russell Caswell’s family-owned Tewksbury, Massachusetts, motel, insisting that because a small percentage of the motel’s guests had been arrested for drug crimes—15 out of 200,000 visitors in a 14-year span—the motel was a dangerous property. As Reason reports:

This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.

Thankfully, with the help of a federal judge, Caswell managed to keep his motel out of the government’s clutches, but others are not so fortunate. One couple in Anaheim, Calif., is presently battling to retain ownership of their $1.5 million office building after the U.S. Drug Enforcement Administration filed an asset-forfeiture lawsuit against them because one of their tenants allegedly sold $37 in medical marijuana to an undercover agent.

Some states are actually considering expanding the use of asset forfeiture laws to include petty misdemeanors. This would mean that property could be seized in cases of minor crimes such as harassment, possession of small amounts of marijuana, and trespassing in a public park after dark.

As the Institute for Justice points out:

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today.  Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime.  Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.

Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head.  With civil forfeiture, your property is guilty until you prove it innocent.

Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies have eagerly cashed in on this revenue scheme, often under the pretext of the War on Drugs. By asserting that someone’s personal property, a building or a large of amount of cash for example, is tied to an illegal activity, the government—usually, the police—then confiscates the property for its own uses, and it’s up to the property owner to jump through a series of legal hoops to prove that the property was obtained legally.

Despite the fact that 80 percent of these asset forfeiture cases result in no charge against the property owner, challenging these “takings” in court can cost the owner more than the value of the confiscated property itself. As a result, most property owners either give up the fight or chalk the confiscation up to government corruption, leaving the police and other government officials to reap the benefits. For example, under a federal equitable sharing program, police turn cases over to federal agents who process seizures and then return 80% of the proceeds to the police.

Asset forfeitures can certainly be lucrative for cash-strapped agencies and states. In the fiscal year ending September 2012, the federal government seized $4.2 billion in assets, a dramatic increase from the $1.7 billion seized the year before. Between 2004 and 2008, police in Jim Wells County, Texas seized over $1.5 million. The Metropolitan Police Department in Washington, D.C. collected $358,000 from civil forfeiture in fiscal year 2011, and $529,000 from federal equitable sharing. The State Attorney’s Office in Madison County, Illinois, made $500,000 from asset forfeiture over the course of eight years.

Often, these governmental property grabs take the form of highway robbery (literally), where police officers extract money, jewelry, and other property from unsuspecting motorists during routine traffic stops. As Mother Jones quips, “forfeiture corridors are the new speed traps.” Indeed, states such as Texas, Tennessee, and Indiana are among the worst offenders. Mother Jones continues:

You all know what a speed trap is, right? If you have a highway running through your small town, you can make a lot of money by ticketing out-of-state drivers who are going one or two miles per hour over the speed limit. How many victims are going to waste time trying to fight it, after all? But have you heard about “forfeiture corridors”? That’s a little different — and quite a bit more lucrative. All you have to do is pull over an out-of-state driver for supposedly making an unsafe lane change, have your police dog sniff around for a bit of marijuana residue, and then use civil asset forfeiture laws to impound any cash you might find. Apparently it’s especially popular on highways leading into and out of casino towns.

In typical fashion, these police traps tend to prey on minorities and the poor, as well as undocumented immigrants and individuals who happen to have large amounts of cash on hand, even for lawful reasons. One such person is Jerome Chennault, who fell prey to Madison County, Illinois’ forfeiture corridor in September 2010. En route to Nevada after a visit with his son, Chennault was pulled over by police for allegedly following another car too closely. When police asked to sweep Chennault’s car with a drug dog, Chennault obliged, believing that he had done nothing wrong and had nothing to hide and completely unaware that he had fallen into a forfeiture trap.

During the search, the drug dog alerted on a black bag in the back seat of the car which contained about $22,000 in cash. The money, Chennault explained, was intended for a down payment on a home.  The dog did not find any drugs in the car, nor was there any evidence of criminal activity. However, instead of letting Chennault go on his way with a traffic citation, the police confiscated the cash, claiming that since the drug dog alerted to it, it must have been used in the commission of a drug crime. Chennault challenged the seizure in court, after months spent traveling to and from Illinois on his own dime, and eventually succeeded in having his money returned, although the state refused to compensate him for his legal and travel expenses.

Tenaha, Texas, is a particular hotbed of highway forfeiture activity, so much so that police officers keep pre-signed, pre-notarized documents on hand so they can fill in what property they are seizing. Between 2006 and 2008, for instance, Tenaha police seized roughly $3 million.

As Roderick Daniels discovered, it doesn’t take much to get pulled over in a forfeiture corridor like Tenaha’s. Daniels was stopped in October 2007 for allegedly traveling 37 mph in a 35 mph zone. He was ordered to hand over his jewelry and the $8,500 in cash he had with him to purchase a new car. When he resisted, he was taken to jail, threatened with money-laundering charges and “persuaded” to sign a waiver forfeiting his property in order to avoid the charges.

In an even more egregious case, Jennifer Boatright and Ron Henderson, an interracial couple travelling through Tenaha, were forced to forfeit the $6,000 cash they had with them to buy another car when police threatened to turn their young children over to Child Protective Services. Another traveler, Maryland resident Amanee Busbee, was also threatened with losing her child to CPS after police stopped her, her fiancé and his business partner when they were en route to Houston with $50,000 to complete the purchase of a restaurant. Boatright and Busbee were eventually able to reclaim their money after mounting legal challenges.

Comparing police forfeiture operations to criminal shakedowns, journalist Radley Balko paints a picture of a government so corrupt as to render the Constitution null and void:

Police in some jurisdictions have run forfeiture operations that would be difficult to distinguish from criminal shakedowns. Police can pull motorists over, find some amount of cash or other property of value, claim some vague connection to illegal drug activity and then present the motorists with a choice: If they hand over the property, they can be on their way. Otherwise, they face arrest, seizure of property, a drug charge, a probable night in jail, the hassle of multiple return trips to the state or city where they were pulled over, and the cost of hiring a lawyer to fight both the seizure and the criminal charge. It isn’t hard to see why even an innocent motorist would opt to simply hand over the cash and move on.

In an age in which the actions of the police—militarized extensions of the government—are repeatedly sanctioned by the legislatures and the courts, hard-won concessions such as the U.S. Supreme Court’s 5-4 ruling in Florida v. Jardines that the use of drug-sniffing dogs to carry out warrantless searches of homes is unconstitutional comes as little comfort. After all, it was not long ago that this very same court sanctioned the use of drug-sniffing dogs in roadside stops, a practice that has proven extremely profitable for law enforcement officials tasked with policing the nation’s forfeiture corridors. — John W. Whitehead

Supreme Court Watch: Salinas v. Texas Examines Right to Remain Silent

Posted: March 12, 2013 in Uncategorized
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The right to remain silent when being questioned by the police is an essential element of liberty. If government agents are allowed to use silence in the face of accusatory questions as a sign of guilt, then the burden of proof will have been shifted to the suspect to prove his innocence, hearkening back to the days of the Salem Witch Trials and McCarthyism.

This essential right to not incriminate oneself is at the heart of Salinas v. Texas, a case before the U.S. Supreme Court. The Rutherford Institute has asked the Court to affirm the right of criminal suspects to remain silent during interactions with police by prohibiting prosecutors from using a suspect’s pre-arrest silence as proof of his guilt during a criminal trial.

The facts of the case are as follows:

In 1992, Juan and Hector Garza were found murdered in their apartment. Genovevo Salinas, an acquaintance of the men who had been at a party with them the evening before they were found dead, was suspected by police as being responsible for the murders. The police approached Salinas at his home and asked him to accompany them to the police station so they could question him and clear his name. Salinas was never handcuffed and was not given Miranda warnings. At the police station, Salinas was taken to an interview room where, during the course of the interview, police questioning became more accusatory, and Salinas was asked whether his father’s shotgun “would match the shells recovered at the scene of the murder.” Salinas remained silent and did not answer the question. The interview proceeded.  At the conclusion of the interview, police arrested Salinas for outstanding traffic fines.  The district attorney later charged Salinas with the murders, but police were unable to arrest Salinas on the murder charge until 2007. After the first trial resulted in a hung jury, Salinas was re-tried. During the second trial, the prosecutor suggested that Salinas’ silence during the police interview prior to his arrest was a “very important piece of evidence” and that only a guilty person would have remained silent when questioned about his connection to a crime. The jury found Salinas guilty of murder and sentenced him to twenty years in prison.

In appealing the verdict to the Texas Court of Appeals, Salinas argued that the prosecution’s emphasis on his pre-arrest silence as evidence of his guilt was a violation of the Fifth Amendment’s guarantee against self-incrimination. Two Texas appeals courts upheld the verdict, ruling that Salinas was not under government compulsion during the time of the police interview, thus he had no Fifth Amendment right to remain silent.

In asking the U.S. Supreme Court to overturn the lower court’s ruling, The Rutherford Institute is asking the Court to affirm that under the Fifth Amendment, a person cannot be compelled to be a witness against himself, whether by being forced to testify, or by using his silence as evidence of his guilt. In keeping with the Fifth Amendment’s guarantee that “[n]o person… shall be compelled in any criminal case to be a witness against himself,” Institute attorneys are urging the Court to reverse the conviction of Genovevo Salinas, who was found guilty of homicide after prosecutors argued that Salinas’ silence during a police interview prior to his arrest was a “very important piece of evidence” and that only a guilty person would have remained silent when questioned about his connection to a crime. A jury found Salinas guilty of murder and he was sentenced to twenty years in prison.

In their “friend of the court” brief, Institute attorneys argue that a person’s refusal to answer police questions, even before arrest and before Miranda warnings are given, does not indicate guilt in light of the well-known “right to remain silent.” — John W. Whitehead

Click here to read The Rutherford Institute’s amicus brief in Salinas v. Texas