Posts Tagged ‘supreme court’

“What’s been most striking to me is just how one-sided the rules are when Americans take on their own government…. It has been dismaying to learn the extent to which rules and laws shield the government from accountability for its abuses—or even lawbreaking…. It’s been a long and frightening lesson…. The rules seem rigged to protect government lawlessness, and the playing field is uneven. Too many processes favor the government. The deck is still stacked.” —  Journalist Sharyl Attkisson

The system is rigged.

The system is rigged, the government is corrupt, and “we the people” continue to waste our strength by fighting each other rather than standing against the tyrant in our midst.

Because the system is rigged, because the government is corrupt, and because “we the people” remain polarized and divided, the police state will keep winning and “we the people” will keep losing.

Because the system is rigged and the U.S. Supreme Court—the so-called “people’s court”—has exchanged its appointed role as a gatekeeper of justice for its new role as maintainer of the status quo, there will be little if no consequences for the cops who brutalize and no justice for the victims of police brutality.

Because the system is rigged, there will be 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.

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

By refusing to accept any of the eight or so qualified immunity cases before it this term that strove to hold police accountable for official misconduct, the Supreme Court delivered 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 qualified immunity keeps the police state in power.

Lawyers tend to offer a lot of complicated, convoluted explanations for the doctrine of qualified immunity, which was intended to insulate government officials from frivolous lawsuits, but the real purpose of qualified immunity is to rig the system, ensuring that abusive agents of the government almost always win and the victims of government abuse almost always lose.

How else do you explain a doctrine that requires victims of police violence to prove that their abusers knew their behavior was illegal because it had been deemed so in a nearly identical case at some prior time: it’s a setup for failure.

Do you know how many different ways a cop can kill, maim, torture and abuse someone without being held liable?

The cops know: in large part due to training classes that drill them on the art of sidestepping the Fourth Amendment, which protects us from being bullied, badgered, beaten, broken and spied on by government agents.

This is how “we the people” keep losing.

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.”

The system is rigged.

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 warrantless arrests based on mere suspicion. In Hunter v. Bryant, the Court ruled that police acted reasonably in arresting James Bryant without a warrant in order to protect the president. Bryant had allegedly written a letter that referenced a third-party plot to assassinate President Ronald Reagan, but police had no proof that he intended to harm Reagan beyond a mere suspicion. The charges against Bryant were eventually dropped.

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 tail light 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.

As I make clear in my book Battlefield America: The War on the American 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.

So what’s the answer to reforming a system that is clearly self-serving and corrupt?

Abolishing the police is not the answer: that will inevitably lead to outright anarchy, which will give the police state and those law-and-order zealots all the incentive it needs to declare martial law.

Looting and violence are not the answer: As Martin Luther King Jr. recognized, “A riot merely intensifies the fears of the white community while relieving the guilt.” Using the looting and riots as justification for supporting police brutality is also not the answer:  As King recognized, “It is not enough … to condemn riots… without, at the same time, condemning the contingent, intolerable conditions that exist in our society. These conditions are the things that cause individuals to feel that they have no other alternative than to engage in violent rebellions to get attention. And I must say tonight that a riot is the language of the unheard. And what is it America has failed to hear? It has failed to hear that the plight of the negro poor has worsened over the last twelve or fifteen years. It has failed to hear that the promises of freedom and justice have not been met. And it has failed to hear that large segments of white society are more concerned about tranquility and the status quo than about justice and humanity.”

Police reform is necessary and unavoidable if we are to have any hope of living in an America in which freedom means something more than the right to stay alive, but how we reform the system is just as important as getting it done.

We don’t need to wait for nine members of a ruling aristocracy who primarily come from privileged backgrounds and who have a vested interest in maintaining the status quo to fix what’s broken in America.

Nor do we need to wait for 535 highly paid politicians to do something about these injustices only when it suits their political ambitions

And we certainly don’t need to wait for a president with a taste for totalitarian tactics to throw a few crumbs our way.

This is as much a local problem as it is a national one.

Be fair. Be nonviolent. Be relentless in your pursuit of justice for all.

Let’s get it done.

Source: https://bit.ly/2YJrle3

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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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.

 

“The warlords of history are still kicking our heads in, and no one, not our fathers, not our Gods, is coming to save us.”— Journalist Ta-Nehisi Coates

The U.S. Supreme Court has ruled: it will not hear the case of Young v. Borders.

Despite the fact that a 26-year-old man was gunned down by police who banged on the wrong door at 1:30 am, failed to identify themselves as police, and then repeatedly shot and killed the innocent homeowner who answered the door while holding a gun in self-defense, the justices of the high court refused to intervene to address police misconduct.

Although 26-year-old Andrew Scott committed no crime and never fired a single bullet or lifted his firearm against police, only to be gunned down by police who were investigating a speeding incident by engaging in a middle-of-the-night “knock and talk” in Scott’s apartment complex, the Supreme Court refused to balance the scales between justice and injustice.

Despite the fact that police shot and killed nearly 1,000 people nationwide for the third year in a row (many of whom were unarmed, mentally ill, minors or were shot merely because militarized police who were armed to the hilt “feared” for their safety), the Supreme Court will not act to right the wrongs being meted out by the American police state.

Although “knock-and-talk” policing has become a thinly veiled, warrantless—lethal—exercise by which citizens are coerced and intimidated into “talking” with heavily armed police who “knock” on their doors in the middle of the night, the Supreme Court will not make the government play by the rules of the Constitution.

The lesson to be learned: the U.S. Supreme Court will not save us.

No one is coming to save us: not the courts, not the legislatures, and not the president.

According to journalist Michael Harriot:

More people died from police violence in 2017 than the total number of U.S. soldiers killed in action around the globe (21). More people died at the hands of police in 2017 than the number of black people who were lynched in the worst year of Jim Crow (161 in 1892). Cops killed more Americans in 2017 than terrorists did (four). They killed more citizens than airplanes (13 deaths worldwide), mass shooters (428 deaths) and Chicago’s “top gang thugs” (675 Chicago homicides).

Americans are dying at the hands of the police, and the U.S. government doesn’t care.

In Kansas, a prank caller placed a fake 911 call (the tactic is referred to as “swatting”) that prompted a SWAT team to open fire on a 28-year-old unarmed man who had been spending a quiet evening at home with his family. The man was shot dead within moments of appearing outside his home, clearly confused to find his home surrounded by police on all sides, guns pointed in his direction, and orders being shouted at him. Thus far, all the blame has rested with the prank caller and little with the cops who shot first and asked questions later.

In New York, a 68-year-old former Marine was shot and killed by police who did a welfare check on him after he accidentally set off his emergency medical alert device. Although Kenneth Chamberlain insisted he was fine, police refused to leave, eventually kicked open the door, zapping Chamberlain with a stun gun, shooting him with beanbag ammunition and then killing him with a pistol shot. The cops were not charged.

In Arizona, a police officer was acquitted after he shot an unarmed man outside his hotel room while the man cried, begged and pleaded for his life. As the Associated Press reports:

“The shooting occurred in the Phoenix suburb of Mesa after officers ordered Shaver to exit his hotel room, lie face-down in a hallway and refrain from making sudden movements — or risk being shot. Shaver, 26, sobbed as he begged police not to shoot and was ordered to crawl toward officers. As he inched forward, he reached toward the waistband of his shorts. Brailsford said he fired his rifle because he believed Shaver was grabbing a handgun in his waistband. While no gun was found on Shaver’s body…the detective investigating the shooting had agreed Shaver’s movement was similar to reaching for a pistol, but has said it also looked as though Shaver was pulling up his loose-fitting basketball shorts that had fallen down as he was ordered to crawl toward officers.”

It gets worse.

You see, it’s not just that the U.S. government appears unconcerned about the fact that Americans are dying at the hands of the police.

Right now, the U.S. government is actively doing everything in its power to ensure that the killing spree continues.

Take Jeff Sessions, for example.

While the president’s conveniently-timed tweets distract the public and dominate the headlines, his attorney general continues to bulldoze over the Constitution, knocking down what scant protections remain between the citizenry and the hydra-headed police state.

Within his first year as attorney general, Jeff Sessions has made a concerted effort to expand the police state’s power to search, strip, seize, raid, steal from, arrest and jail Americans for any infraction, no matter how insignificant.

What this means is more militarized police, more asset forfeiture, more private prisons, more SWAT team raids, more police shootings of unarmed citizens, and more wars waged by the government against the American people.

And while the crime rate may be falling, the death toll—casualties of the government’s war on the American people—is growing.

The body count will continue to mount as long as the courts continue to march in lockstep with the police state, as long as police unions continue to strong-arm politicians into letting police agencies get away with murder, as long as legislators continue to care more about getting re-elected than about protecting the rights of the citizenry, as long as police continue to treat their fellow citizens as enemy combatants on a battlefield, as long as the media continues to focus the spotlight on circus politics, and as long as the citizenry fail to be alarmed and outraged every time the police state shoots another hole in the Constitution.

Even so, it’s not just the police shootings that are cause for concern.

We are inching ever closer to a constitutional crisis the likes of which we have never seen before, and “we the people” are woefully unprepared and ill-equipped to deal with a government that is corrupt, topsy turvy, unjust, immoral, illegal, brutal, violent, war-hungry, greedy, biased, imbalanced, unaccountable, non-transparent, fascist and as illegitimate as they come.

Where do we go from here?

We’ve been through troubled times before.

In fact, it was 50 years ago this year, in 1968, when the country was buffeted by assassinations, riots and protests: “The assassinations of the Rev. Martin Luther King Jr. and Robert F. Kennedy. The riots that shook Washington, Chicago, Baltimore and other U.S. cities. Campus protests. Civil rights protests. Vietnam War protests. The Tet Offensive. The My Lai massacre. The rise of Richard Nixon and the retreat of Lyndon Johnson.”

Fifty years later, we’re no better off.

The nation is still being buffeted by economic instability, racial inequality, injustice, police brutality, government misconduct and a rising discontent on the part of the populace.

I can’t help but wonder what Martin Luther King Jr. would have to say to about his dream today.

Certainly, the reality we must contend with is far different from King’s dream of a world without racism, militarism and materialism: America has become a ticking time bomb of racial unrest and injustice, police militarization, surveillance, government corruption and ineptitude, the blowback from a battlefield mindset and endless wars abroad, and a growing economic inequality between the haves and have nots.

King himself—in life, a hard-talking, charismatic leader, voice of authority, and militant, nonviolent activist minister/peace warrior who staged sit-ins, boycotts and marches and lived through police attack dogs, water cannons and jail cells—has been so watered down in death that younger generations recognize his face but know very little about his message.

Yet King had a lot to say that remains relevant to our day and age.

“Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.”

“Nonviolence is the answer to the crucial political and moral questions of our time — the need for mankind to overcome oppression and violence without resorting to violence and oppression.”

“The arc of the moral universe is long but it bends toward justice.”

“We can no longer afford to worship the god of hate or bow before the altar of retaliation.”

“We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history there is such a thing as being too late. Procrastination is still the thief of time. Life often leaves us standing bare, naked, and dejected with a lost opportunity. The tide in the affairs of men does not remain at flood — it ebbs. We may cry out desperately for time to pause in her passage, but time is adamant to every plea and rushes on. Over the bleached bones and jumbled residues of numerous civilizations are written the pathetic words, ‘Too late.’”

We cannot afford to wait until it is “too late.”

This is no time to stand silently on the sidelines. It’s a time for anger and reform. Most importantly, it’s a time for making ourselves heard. And there is no better time to act than the present.

As Robert F. Kennedy reminded his listeners in a speech delivered at the University of Cape Town in 1966, “Hand in hand with freedom of speech goes the power to be heard, to share in the decisions of government which shape men’s lives. Everything that makes man’s life worthwhile—family, work, education, a place to rear one’s children and a place to rest one’s head—all this depends on decisions of government; all can be swept away by a government which does not heed the demands of its people.”

What can ordinary citizens do?

As I make clear in my book Battlefield America: The War on the American People, instead of sitting around and waiting for someone else to change things, take charge. Never discount the part that everyday citizens play in our nation’s future. You can change things, but there can be no action without education. Get educated about your rights and exercise them. Start by reading the Bill of Rights. You can do so online at http://www.rutherford.org. Or, if you want a copy to keep with you, email me at staff@rutherford.org and I’ll send you a free one.

Most important of all, just get out there and do your part to make sure that your government officials hear you. The best way to ensure that happens is by never giving up, never backing down, and never remaining silent. To quote Dr. King, “If you can’t fly, run; if you can’t run, walk; if you can’t walk, crawl, but by all means keep moving.”

It doesn’t matter whether you’re protesting the economy, the war, the environment or something else altogether. What matters is that you do your part. As that great revolutionary firebrand Samuel Adams pointed out, “It does not require a majority to prevail, but rather an irate, tireless minority keen to set brushfires in people’s minds.”

Take some time right now and start your own brushfire for freedom. Learn about the issues and then take a stand: attend local government meetings, contact your representatives, raise awareness within your community, and generally make your voice heard.

It’s midnight in America right now. But the real question is, will there be a dawn?

That’s up to you and me. The future is in our hands.

WC: 1958

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.

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. This commentary originally appeared at https://www.rutherford.org/publications_resources/john_whiteheads_commentary/justice_denied_the_government_is_not_going_to_save_us

 

 

“What are the defenders of free speech to do? The sad fact is that this fundamental freedom is on its heels across America. Politicians of both parties want to use the power of government to silence their foes. Some in the university community seek to drive it from their campuses. And an entire generation of Americans is being taught that free speech should be curtailed as soon as it makes someone else feel uncomfortable. On the current trajectory, our nation’s dynamic marketplace of ideas will soon be replaced by either disengaged intellectual silos or even a stagnant ideological conformity. Few things would be so disastrous for our nation and the well-being of our citizenry.”—William Ruger, “Free Speech Is Central to Our Dignity as Humans

As a nation, we have a tendency to sentimentalize cultural icons in death in a way that renders them non-threatening, antiseptic and easily digested by a society with an acute intolerance for anything controversial, politically incorrect or marred by imperfection.

This revisionist history—a silent censorship of sorts—has proven to be a far more effective means of neutralizing radicals such as Martin Luther King Jr. than anything the NSA, CIA or FBI could dream up.

In life, King called for Americans to rise up against a government that was not only treating blacks unfairly but was also killing innocent civilians, impoverishing millions, and prioritizing the profits of war over human rights and dignity. This was a man who went to jail over racial segregation laws, encouraged young children to face down police dogs and water hoses, and who urged people to turn their anger loose on the government through civil disobedience. King actually insisted that people have a moral responsibility to disobey unjust laws.

In death, however, King has been reduced to a face on a national monument and a national holiday, neither of which even hint at the true nature of the man: fiery, passionate, single-minded in his pursuit of justice, unwilling to remain silent in the face of wrongdoing, and unafraid of offending those who might disagree with him.

A contemporary of King’s, heavy-weight championship boxer Muhammad Ali followed a different path as a social activist and “breaker of boundaries.” Like King, Ali didn’t pull any punches when it came to saying what he believed and acting on it. Yet already, in the wake of Ali’s passing, we’re being treated to a sentimentalized version of the heavy-weight boxer.

In life, Ali was fast-talking, fast-moving and as politically incorrect as they come. He became an early convert to the Nation of Islam, a black separatist religious movement whose membership at one time included Malcolm X and Louis Farrakhan. He denounced his “slave name” (Cassius Marcellus Clay) and refused to be the “white man’s Negro.”

He was stripped of his boxing title, arrested and threatened with five years in prison and a fine of $10,000 after refusing to be drafted into the Army as a conscientious objector to the Vietnam War. “My conscience won’t let me go shoot my brother, or some darker people, or some poor hungry people in the mud for big powerful America,” declared Ali. “And shoot them for what? They never called me nigger, they never lynched me, they didn’t put no dogs on me, they didn’t rob me of my nationality, rape and kill my mother and father. … Shoot them for what? How can I shoot them poor people? Just take me to jail.”

As First Amendment scholar David L. Hudson Jr. notes, “Ali’s remarkable career and life placed him at the vortex of these First Amendment freedoms… Ali freely exercised his religious faith. He regularly spoke provocatively on a variety of topics. The press was abuzz with coverage and criticism. Thousands assembled in support of him, and the champion himself took part in rallies, parades and marches. Some petitioned the government to redress the injustice of his conviction for refusing military service, which resulted in his being exiled from the boxing ring for his beliefs.”

It took a legal battle all the way to the U.S. Supreme Court for Ali’s religious objections to serving in the Army to be given credence and his First Amendment arguments to prevail. The case was Clay v. United States.

That was in 1971.

Forty-five years later, Ali is dead, fear is alive, and free speech is being dealt one knock-out punch after another.

Indeed, talk-show celebrity Piers Morgan has been soundly trounced and roundly censured for daring to suggest that Ali—a champion of the First Amendment who liberally peppered his speech with words (nigger and Uncle Tom) and opinions (“the white man is the Devil“ and “I’m sure no intelligent white person watching this show … want black boys and black girls marrying their white sons and daughters“) that would horrify most of his politically correct fans—made more “inflammatory/racist” comments than Donald Trump.

Speaking of Trump, in Fresno, California, a third-grader was ordered to remove his pro-Trump “Make America Great Again” hat because school officials feared for his safety. The 9-year-old boy refused, citing the First Amendment.

That was the same argument—a concern for safety—officials used in 2010 when they ordered several high school students to remove their t-shirts emblazoned with the American flag. The concern: wearing the flag on Cinco de Mayo, a Mexican day of celebration, might offend Hispanic students attending the school. The U.S. Supreme Court agreed with the school’s logic. Coincidentally, that same week, the high court also ruled against Confederate flag license plates on the grounds that they constituted government speech and might be offensive to African-Americans.

For those of us who came of age in the 1960s, college campuses were once the bastion of free speech, awash with student protests, sit-ins, marches, pamphleteering, and other expressive acts showing our displeasure with war, the Establishment and the status quo.

Today, on college campuses across the nation, merely chalking the word “Trump” on the sidewalk is enough to have student groups crying foul and labeling it as hate speech in need of censorship. Under the misleading guise of tolerance, civility, love and political correctness, college campuses have become hotbeds of student-led censorship, trigger warningsmicroaggressions, and “red light” speech policies targeting anything that might cause someone to feel uncomfortable, unsafe or offended.

As I point out in my book Battlefield America: The War on the American People, this doesn’t even begin to touch on the criminalization and surveillance of various forms of speech that the government deems to be hateful, anti-government, extremist, bullying, dangerous or inflammatory.

One could say that we have allowed our fears—fear for our safety, fear of each other, fear of being labeled racist or hateful or prejudiced, etc.—to trump our freedom of speech and muzzle us far more effectively than any government edict could.

Ultimately the war on free speech—and that’s exactly what it is: a war being waged by Americans against other Americans—is a war that is driven by fear.

America is in the midst of an epidemic of historic proportions. The contagion being spread like wildfire is turning communities into battlegrounds and setting Americans one against the other. Normally mild-mannered individuals caught up in the throes of this disease have been transformed into belligerent zealots, while others inclined to pacifism have taken to stockpiling weapons and practicing defensive drills.

This plague on our nation—one that has been carefully cultivated and spread by the powers-that-be—is a potent mix of fear coupled with unhealthy doses of paranoia and intolerance, tragic hallmarks of the post-9/11 America in which we live.

Everywhere you turn, those on both the left- and right-wing are fomenting distrust and division. You can’t escape it. We’re being fed a constant diet of fear: fear of terrorists, fear of illegal immigrants, fear of people who are too religious, fear of people who are not religious enough, fear of the government, fear of those who fear the government. The list goes on and on.

The strategy is simple yet brilliant: the best way to control a populace is through fear and discord. Confound them, distract them with mindless news chatter and entertainment, pit them against one another by turning minor disagreements into major skirmishes, and tie them up in knots over matters lacking in national significance. Most importantly, keep the people divided so that they see each other as the enemy and screaming at each other so that they drown out all other sounds. In this way, they will never reach consensus about anything or hear the corporate state as it closes in on them.

This is how a freedom-loving people enslave themselves and allow tyrants to prevail.

This Machiavellian scheme has so ensnared the nation that few Americans even realize they are being manipulated into adopting an “us” against “them” mindset. Instead, fueled with fear and loathing for phantom opponents, they pour millions of dollars and resources into political elections, hoping for change that never comes. All the while, those in power—bought and paid for by lobbyists and corporations—move their costly agendas forward, and “we the suckers” get saddled with the tax bills.

We have been down this road before.

A classic example is the fear and paranoia that gripped the country during the 1950s. Many huddled inside their homes and fallout shelters, awaiting a nuclear war. It was also the time of the Red Scare. The enemy this time was Communist infiltration of American society.

Joseph McCarthy, a young Republican senator, grasped the opportunity to capitalize on the popular paranoia for personal national attention. In a speech in February 1950, McCarthy alleged having a list of over 200 members of the Communist Party “working and shaping the policy of the U.S. State Department.” The speech was picked up by the Associated Press, without substantiating the facts, and within a few days the hysteria began.

McCarthy specialized in sensational and unsubstantiated accusations about Communist infiltration of the American government, particularly the State Department. He also targeted well-known Hollywood actors and directors, trade unionists and teachers. Many others were brought before the inquisitional House Committee on Un-American Activities for questioning. Regarded as bad risks, the accused struggled to secure employment. The witch hunt ruined careers, resulting in suicides, and tightened immigration to exclude alleged subversives.

“McCarthyism” eventually smeared all the accused with the same broad brush, whether the evidence was good, bad or nonexistent. McCarthy, like many do today, appealed to the low instincts of envy, paranoia and dislike for the intellectual establishment.

“The real scoundrel in all this,” writes historian David Halberstam, “was the behavior of the members of the Washington press corps, who, more often than not, knew better. They were delighted to be a part of his traveling road show, chronicling each charge and then moving on to the next town, instead of bothering to stay behind and follow up. They had little interest in reporting how careless McCarthy was or how little it all meant to him.”

However, on March 9, 1954, Edward R. Murrow, the most-respected newsman on television at the time, broke the ice. He attacked McCarthy on his weekly show, See It Now. Murrow interspersed his own comments and clarifications into a damaging series of film clips from McCarthy’s speeches. Murrow ended the broadcast with one of the greatest news commentaries of all time, also a warning.

We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine; and remember that we are not descended from fearful men. Not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.

This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home. The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear; he merely exploited it—and rather successfully. Cassius was right. ”The fault, dear Brutus, is not in our stars, but in ourselves.” 

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Whether you’re talking about free speech, surveillance, police misconduct or some other symptom of a government that has grown drunk on its own power, the answer is always the same: “we the people.”

We need to reject fear as our guiding principle, and restore freedom to its rightful place at the center of our republic.

As William Ruger writes in a powerful editorial for Time:

We must vigorously re-make the case for free speech. We must recur to its great defenders from ages past and reintroduce their ideas to our fellow Americans. The wisdom of John Milton, John Locke and John Stuart Mill—not to mention that of Americans like George Mason and Justice Louis Brandeis—is as true today as it was in their times. We just have to remember it… we must transmit an understanding of the value of free speech to today’s Americans in order to ensure that it is protected for future generations. And perhaps even more importantly, we need to demonstrate a vigorous commitment to free speech. America’s success depends on whether we continue to embrace this fundamental freedom.

“We are not to simply bandage the wounds of victims beneath the wheels of injustice, we are to drive a spoke into the wheel itself.”—Dietrich Bonhoeffer

The untimely death of Supreme Court Justice Antonin Scalia has predictably created a political firestorm.

Republicans and Democrats, eager to take advantage of an opening on the Supreme Court, have been quick to advance their ideas about Scalia’s replacement. This is just the beginning of the furor over who gets to appoint the next U.S. Supreme Court justice (President Obama or his successor), when (as soon as Obama chooses or as long as Congress can delay), how (whether by way of a recess appointment or while Congress is in session), and where any judicial nominee will stand on the hot-button political issues of our day (same-sex marriage, Obamacare, immigration, the environment, and abortion).

This is yet another spectacle, not unlike the carnival-like antics of the presidential candidates, to create division, dissension and discord and distract the populace from the nation’s steady march towards totalitarianism.

Not to worry. This is a done deal. There are no surprises awaiting us.

We may not know the gender, the orientation, the politics, or the ethnicity of Justice Scalia’s replacement, but those things are relatively unimportant in the larger scheme of things.

The powers-that-be have already rigged the system. They—the corporations, the military industrial complex, the surveillance state, the monied elite, etc.—will not allow anyone to be appointed to the Supreme Court who will dial back the police state. They will not tolerate anyone who will undermine their policies, threaten their profit margins, or overturn their apple cart.

Scalia’s replacement will be safe (i.e., palatable enough to withstand Congress’ partisan wrangling), reliable and most important of all, an extension of the American police state.

With the old order dying off or advancing into old age rapidly, we’ve arrived at a pivotal point in the makeup of the Supreme Court. With every vacant seat on the Court and in key judgeships around the country, we are witnessing a transformation of the courts into pallid, legalistic bureaucracies governed by a new breed of judges who have beencareful to refrain from saying, doing or writing anything that might compromise their future ambitions.

Today, the judges most likely to get appointed today are well-heeled, well-educated (all of them attended either Yale or Harvard law schools) blank slates who have traveled a well-worn path from an elite law school to a prestigious judicial clerkship and then a pivotal federal judgeship. Long gone are the days when lawyers without judicial experience such as Earl Warren, William Rehnquist, Felix Frankfurter, and Louis Brandeis could be appointed to the Supreme Court.

As Supreme Court correspondent Dahlia Lithwick points out, “a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel” results in “perfect judicial thoroughbreds who have spent their entire adulthoods on the same lofty, narrow trajectory.”

In other words, it really doesn’t matter whether a Republican or Democratic president appoints the next Supreme Court justice, because they will all look alike (in terms of their educational and professional background) and sound alike (they are primarily advocates for the government).

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

Unfortunately, as I document in Battlefield America: The War on the American People, what we have been saddled with instead are government courts dominated by technicians and statists who march in lockstep with the American police state.

This is true at all levels of the judiciary.

Thus, while what the nation needs is a constitutionalist, what we will get is a technician.

It’s an important distinction.

A legal constitutionalist believes that the authority of government derives from and is limited by a body of fundamental law (the Constitution) and strives to hold the government accountable to abiding by the Constitution. A judge of this order will uphold the rights of the citizenry in the face of government abuses.

Justice William O. Douglas, who served on the Supreme Court for 36 years, was such a constitutionalist. He believed that the “Constitution is not neutral. It was designed to take the government off the backs of the people.” Considered the most “committed civil libertarian ever to sit on the court,” Douglas was frequently controversial and far from perfect (he was part of a 6-3 majority in Korematsu vs. United States that supported the government’s internment of American citizens of Japanese descent during World War II). Even so, his warnings against a domineering, suspicious, totalitarian, police-driven surveillance state resonate still today.

A legal technician, on the other hand, is an arbitrator of the government’s plethora of laws whose priority is maintaining order and preserving government power. As such, these judicial technicians are deferential to authority, whether government or business, and focused on reconciling the massive number of laws handed down by the government.

John Roberts who joined the Supreme Court in 2005 as Chief Justice is a prime example of a legal technician. His view that the “role of the judge is limited…to decide the cases before them” speaks to a mindset that places the judge in the position of a referee. As USA Today observes, “Roberts’ tenure has been marked by an incremental approach to decision-making — issuing narrow rather than bold rulings that have the inevitable effect of bringing the same issues back to the high court again and again.”

Roberts’ approach to matters of law and justice can best be understood by a case dating back to his years on the U.S. Court of Appeals for the District of Columbia. The case involved a 12-year-old black girl who was handcuffed, searched and arrested by police—all for eating a single French fry in violation of a ban on food in the D.C. metro station. Despite Roberts’ ability to recognize the harshness of the treatment meted out to Ansche Hedgepeth for such a minor violation—the little girl was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained for three hours, and was “frightened, embarrassed, and crying throughout the ordeal”—Roberts ruled that the girl’s constitutional rights had not been violated in any way.

This is not justice meted out by a constitutionalist.

This is how a technician rules, according to the inflexible letter of the law.

Circuit Judge Sri Srinivasan of the DC Court of Appeals, who is rumored to be a favorite pick for Scalia’s spot on the court, is another such technician. When asked to strike down a 60-year-old ban on expressive activities in front of the Supreme Court Plaza, Srinivasan turned a blind eye to the First Amendment. (Ironically, the Supreme Court must now decide whether to declare its own free speech ban unconstitutional.)

By ruling in favor of the ban, Srinivasan also affirmed that police were correct to arrest an African-American protester who was standing silently in front of the Supreme Court wearing a sign protesting the police state on a snowy day when no one was on the plaza except him.

Srinivasan’s rationale? “Allowing demonstrations directed at the Court, on the Court’s own front terrace, would tend to yield the opposite impression: that of a Court engaged with — and potentially vulnerable to — outside entreaties by the public.”

This view of the Supreme Court as an entity that must be sheltered from select outside influences—for example, the views of the citizenry—is shared by the members of the Court itself to a certain extent. As Lithwick points out:

The Court has become worryingly cloistered, even for a famously cloistered institution… today’s justices filter out anything that might challenge their perspectives. Antonin Scalia won’t read newspapers that conflict with his views and claims to often get very little from amicus briefs. John Roberts has said that he doesn’t believe that most law-review articles—where legal scholars advance new thinking on contemporary problems—are relevant to the justices’ work. Ruth Bader Ginsburg, Scalia’s opera-going buddy, increasingly seems to revel in, rather than downplay, her status as a liberal icon. Kennedy spends recesses guest-teaching law school courses in Salzburg.”

Are you getting the picture yet?

The members of the Supreme Court are part of a ruling aristocracy composed of men and women who primarily come from privileged backgrounds and who have a vested interest in maintaining the status quo.

These justices, all of whom are millionaires in their own rights, circulate among an elite, privileged class of individuals, attending exclusive events at private resorts orchestrated by billionaire oil barons, traveling on the private jets of billionaires, and delivering paid speeches in far-flung locales such as Berlin, London and Zurich.

When you’re cocooned within the rarefied, elitist circles in which most of the judiciary operate, it can be difficult to see the humanity behind the facts of a case, let alone identify with the terror and uncertainty that most people feel when heavily armed government agents invade their homes, or subject them to a virtual strip search, or taser them into submission.

If you’ve never had to worry about police erroneously crashing through your door in the dead of night, then it might not be a hardship to rule as the Court did in Kentucky v. King that police should have greater leeway to break into homes or apartments without a warrant.

If you have no fear of ever being strip searched yourself, it would be easy to suggest as the Court did in Florence v. Burlington that it’s more important to make life easier for overworked jail officials than protect Americans from debasing strip searches.

And if you have never had to submit to anyone else’s authority—especially a militarized police officer with no knowledge of the Constitution’s prohibitions against excessive force, warrantless searches and illegal seizures, then you would understandably give police the benefit of the doubt as the Court did in Brooks v. City of Seattle, when they let stand a ruling that police officers who had clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution.

Likewise, if you’re not able to understand what it’s like to be one of the “little guys,” afraid to lose your home because some local government wants to commandeer it and sell it to a larger developer for profit, it would be relatively easy to rule, as the Supreme Court did in Kelo v. New London, that the government is within its right to do so.

Now do you understand why the Supreme Court’s decisions in recent years, which have run the gamut from suppressing free speech activities and justifying suspicionless strip searches to warrantless home invasions and conferring constitutional rights on corporations, while denying them to citizens, have been characterized most often by an abject deference to government authority, military and corporate interests?

They no longer work for us. They no longer represent us. They can no longer relate to our suffering.

In the same way that the Legislative Branch, having been co-opted by lobbyists, special interests, and the corporate elite, has ceased to function as a vital check on abuses by the other two branches of government, the Judicial Branch has also become part of the same self-serving bureaucracy.

Sound judgment, compassion and justice have taken a back seat to legalism, statism and elitism.

Preserving the rights of the people has been deprioritized and made to play second fiddle to both governmental and corporate interests.

In the case of the People vs. the Police State, the ruling is 9-0 against us.

So where does that leave us?

The Supreme Court of old is gone, if not for good then at least for now.

It will be a long time before we have another court such as the Warren Court (1953-1969), when Earl Warren served alongside such luminaries as William J. Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter and Thurgood Marshall.

The Warren Court handed down rulings that were instrumental in shoring up critical legal safeguards against government abuse and discrimination. Without the Warren Court, there would be no Miranda warnings, no desegregation of the schools and no civil rights protections for indigents.

Yet more than any single ruling, what Warren and his colleagues did best was embody what the Supreme Court should always be—an institution established to intervene and protect the people against the government and its agents when they overstep their bounds.

That is no longer the case.

We can no longer depend on the federal courts to protect us against the government. They are the government.

Yet as is the case with most things, the solution is far simpler and at the same time more complicated than space allows, but it starts with local action—local change—and local justice. If you want a revolution, start small, in your own backyard, and the impact will trickle up.

If you don’t like the way justice is being meted out in America, then start demanding justice in your own hometown, before your local judges. Serve on juries, nullify laws that are egregious, picket in front of the courthouse, vote out judges (and prosecutors) who aren’t practicing what the Constitution preaches, encourage your local newspapers to report on cases happening in your town, educate yourself about your rights, and make sure your local judges understand that they work for you and are not to be extensions of the police, prosecutors and politicians.

This is the only way we will ever have any hope of pushing back against the police state.

BrandonRaub_2WASHINGTON, D.C. —  The U.S. Supreme Court has refused to hear the case of decorated Marine Brandon Raub, who was seized by a swarm of Secret Service, FBI and local police officials and involuntarily committed to a mental institution for a week after posting controversial song lyrics and political views critical of the government on his Facebook page. In asking the Supreme Court to hear the case, Rutherford Institute attorneys were seeking to overturn lower court rulings dismissing the case, which characterized concerns over government suppression of dissident speech as “far-fetched.” In rejecting the appeal, the Supreme Court also refused to establish standards to guide and constrain mental health professionals when they seek to commit individuals and to prevent commitment on the basis of a person’s exercise of his right to free speech.

“This case was about more than one Marine’s right to not be targeted for speaking out against the government. It was about whether Americans have the freedom to criticize the government without being labeled ‘domestic extremists’ and stripped of their rights,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Unfortunately, in refusing to hear this case, the Supreme Court has left us all vulnerable to the possibility that we can be declared mentally unfit, handcuffed, arrested and locked up against our will simply for exercising our right to speak truth to power.”

Brandon Raub, a decorated Marine who has served tours in Iraq and Afghanistan, uses his Facebook page to post song lyrics and air his political opinions. On Aug.16, 2012, Chesterfield police, Secret Service and FBI agents arrived at Raub’s home, asked to speak with him about his Facebook posts, and without providing any explanation, levying any charges against Raub or reading him his rights, handcuffed Raub and transported him to police headquarters, then to a medical facility, where he was held against his will for psychological evaluation and treatment.

In coming to Raub’s aid, Rutherford Institute attorneys challenged the government’s actions as a violation of Raub’s First and Fourth Amendment rights. On Aug. 23, Circuit Court Judge Allan Sharrett ordered Raub’s immediate release, stating that the government’s case was “so devoid of any factual allegations that it could not be reasonably expected to give rise to a case or controversy.” Rutherford Institute attorneys filed a lawsuit in May 2013, challenging the government’s actions as procedurally improper and legally unjustified. In February 2014, a U.S. District Court judge dismissed the lawsuit, rejecting concerns over government suppression of dissident speech as “far-fetched.” On appeal to the Court of Appeals for the Fourth Circuit, Institute attorneys claimed that the Chesterfield County mental health screener who recommended Raub’s seizure and commitment failed to exercise reasonable professional judgment in wrongly determining that Raub was mentally ill and dangerous, and that Raub’s seizure and detention were the result of a mental health screener’s dislike of Raub’s “unpatriotic” views on federal government misconduct, thereby violating the ex-Marine’s First Amendment right to freedom of speech. The appeals court subsequently affirmed the lower court judgment.

Attorneys William H. Hurd and Stephen C. Piepgrass of Troutman Sanders and Anthony Troy and Charles A. Zdebski of Eckert Seamens Cherin & Mellott assisted The Rutherford Institute in its defense of Brandon Raub.

Screen Shot 2015-09-01 at 9.56.09 AMWASHINGTON, DC — A federal appeals court has summarily rejected a request that it reconsider its ruling that a 60-year old federal statute criminalizing expressive First Amendment activity on the Supreme Court plaza is “reasonable” and does not violate the First Amendment, setting up an appeal to the U.S. Supreme Court.

The U.S. Court of Appeals for the District of Columbia denied without explanation a petition for rehearing filed by The Rutherford Institute in Hodge v. Talkin, in which Institute attorneys pointed out that the ruling by a three-judge panel of the Court upholding the ban on speech on the plaza conflicts with earlier decisions construing a nearly-identical statute. The panel decision reversed a lower court decision finding the ban to be “repugnant” to the Constitution and “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” Rutherford Institute attorneys filed the lawsuit on behalf of activist Harold Hodge, who was arrested while standing silently in front of the U.S. Supreme Court on a snowy day wearing a sign voicing his concerns about the government’s disparate treatment of African-Americans and Hispanics.

“Through a series of carefully crafted legislative steps and politically expedient court rulings, government officials have managed to disembowel this fundamental freedom, rendering the First Amendment with little more meaning than the right to file a lawsuit against government officials,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Ironically, when we appeal this case, it will be the justices of the U.S. Supreme Court who will eventually be asked to decide the constitutionality of their own statute, yet they have already made their views on the subject quite clear.”

On January 28, 2011, Harold Hodge quietly and peacefully stood in the plaza area near the steps leading to the United States Supreme Court Building, wearing a 3’ X 2’ sign around his neck that proclaimed: “The U.S. Gov. Allows Police To Illegally Murder And Brutalize African Americans And Hispanic People.” The plaza is a place where the public is allowed to gather and converse, and is in all relevant respects like a public square or park where citizens have traditionally met to express their views on matters of public interest. However, Hodge was handcuffed, placed under arrest, and then transported to U.S. Capitol Police Headquarters for violating 40 U.S.C. § 6135, which broadly makes it unlawful to display any flag, banner, or device designed to bring into public notice a party, organization, or movement while on the grounds of the U.S. Supreme Court, thereby banning expressive activity on the Supreme Court plaza. Rutherford Institute attorneys subsequently filed a lawsuit challenging § 6135, and in June 2013 a district court judge struck down the law finding it “plainly unconstitutional on its face.” In response, the government not only appealed that ruling, but the marshal for the Supreme Court—with the approval of Chief Justice John Roberts—issued even more strident regulations outlawing expressive activity on the grounds of the high court, including the plaza. Rutherford Institute attorneys have since filed a related lawsuit challenging the Supreme Court’s more strident regulations.

Affiliate attorney Jeffrey Light is assisting The Rutherford Institute with Hodge.

 

 

“Since mankind’s dawn, a handful of oppressors have accepted the responsibility over our lives that we should have accepted for ourselves. By doing so, they took our power. By doing nothing, we gave it away. We’ve seen where their way leads, through camps and wars, towards the slaughterhouse.” ― Alan Moore, V for Vendetta

What began with the passage of the USA Patriot Act in October 2001 has snowballed into the eradication of every vital safeguard against government overreach, corruption and abuse. Since then, we have been terrorized, traumatized, and acclimated to life in the American Surveillance State.

The bogeyman’s names and faces change over time, but the end result remains the same: our unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security has transitioned us to life in a society where government agents routinely practice violence on the citizens while, in conjunction with the Corporate State, spying on the most intimate details of our personal lives.

Ironically, the 14th anniversary of the 9/11 attacks occurs just days before the 228th anniversary of the ratification of our Constitution. Yet while there is much to mourn about the loss of our freedoms in the years since 9/11, there is virtually nothing to celebrate.

The Constitution has been steadily chipped away at, undermined, eroded, whittled down, and generally discarded to such an extent that what we are left with today is but a shadow of the robust document adopted more than two centuries ago. Most of the damage has been inflicted upon the Bill of Rights—the first ten amendments to the Constitution—which has historically served as the bulwark from government abuse.

Set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, overcriminalization, armed surveillance drones, whole body scanners, stop and frisk searches, roving VIPR raids and the like—all sanctioned by a corrupt government run by Congress, the White House and the courts—a recitation of the Bill of Rights now sounds more like a eulogy to freedoms lost than an affirmation of rights we should possess.

Battlefield_Cover_300As I make clear in my book Battlefield America: The War on the American People, the Constitution has been on life support for some time now and all efforts at resuscitating it may soon prove futile.

We can pretend that the Constitution, which was written to hold the government accountable, is still our governing document. However, the reality we must come to terms with is that in the America we live in today, the government does whatever it wants, freedom be damned, and “we the people” are seen as little more than cattle to be branded and eventually led to the slaughterhouse.

Consider the state of our freedoms, and judge for yourself whether Osama Bin Laden was right when he warned that “freedom and human rights in America are doomed,” and that the “U.S. government will lead the American people in — and the West in general — into an unbearable hell and a choking life.”

Here is what it means to live under the Constitution today.

The First Amendment is supposed to protect the freedom to speak your mind, assemble and protest nonviolently without being bridled by the government. It also protects the freedom of the media, as well as the right to worship and pray without interference. In other words, Americans should not be silenced by the government. To the founders, all of America was a free speech zone.

Yet despite the clear protections found in the First Amendment, the freedoms described therein are under constant assault. Increasingly, Americans are being arrested and charged with bogus “contempt of cop” charges such as “disrupting the peace” or “resisting arrest” for daring to film police officers engaged in harassment or abusive practices. Journalists are being prosecuted for reporting on whistleblowers. States are passing legislation to muzzle reporting on cruel and abusive corporate practices. Religious ministries are being fined for attempting to feed and house the homeless. Protesters are being tear-gassed, beaten, arrested and forced into “free speech zones.” And under the guise of “government speech,” the courts have reasoned that the government can discriminate freely against any First Amendment activity that takes place within a government forum.

The Second Amendment was intended to guarantee “the right of the people to keep and bear arms.” Yet while gun ownership has been recognized by the U.S. Supreme Court as an individual citizen right, Americans remain powerless to defend themselves against SWAT team raids and government agents armed to the teeth with military weapons better suited for the battlefield than for a country founded on freedom. Police shootings of unarmed citizens continue to outrage communities, while little is really being done to demilitarize law enforcement agencies. Indeed, just recently, North Dakota became the first state to legalize law enforcement use of drones armed with weapons such as tear gas, rubber bullets, beanbags, pepper spray and Tasers.

The Third Amendment reinforces the principle that civilian-elected officials are superior to the military by prohibiting the military from entering any citizen’s home without “the consent of the owner.” With the police increasingly training like the military, acting like the military, and posing as military forces—complete with military weapons, assault vehicles, etc.—it is clear that we now have what the founders feared most—a standing army on American soil. Moreover, as a result of SWAT team raids (more than 80,000 a year) where police invade homes, often without warrants, and injure and even kill unarmed citizens, the barrier between public and private property has been done away with, leaving us with armed government agents who act as if they own our property.

The Fourth Amendment prohibits the government from conducting surveillance on you or touching you or invading you, unless they have some evidence that you’re up to something criminal. In other words, the Fourth Amendment ensures privacy and bodily integrity. Unfortunately, the Fourth Amendment has suffered the greatest damage in recent years and been all but eviscerated by an unwarranted expansion of police powers that include strip searches and even anal and vaginal searches of citizens, surveillance and intrusions justified in the name of fighting terrorism, as well as the outsourcing of otherwise illegal activities to private contractors. Case in point: Texas police forced a 21-year-old woman to undergo a warrantless vaginal search by the side of the road after she allegedly “rolled” through a stop sign.

The use of civil asset forfeiture schemes to swell the coffers of police forces has also continued to grow in popularity among cash-strapped states. The federal government continues to strong-arm corporations into providing it with access to Americans’ private affairs, from emails and online transactions to banking and web surfing. Coming in the wake of massive leaks about the inner workings of the NSA and the massive secretive surveillance state, it was revealed that the government threatened to fine Yahoo $250,000 every day for failing to comply with the NSA’s mass data collection program known as PRISM. Meanwhile, AT&T has enjoyed a profitable and “extraordinary, decades-long” relationship with the NSA.

The technological future appears to pose even greater threats to what’s left of our Fourth Amendment rights, with advances in biometric identification and microchip implants on the horizon making it that much easier for the government to track not only our movements and cyber activities but our very cellular beings. Barclays has already begun using a finger-scanner as a form of two-step authentication to give select customers access to their accounts. Similarly, Motorola has been developing thin “digital tattoos” that will ensure that a phone’s owner is the only person who may unlock it. Not to be overlooked are the aerial spies—surveillance drones—about to take to the skies in coming years, as well as the Drive Smart programs that will spy on you (your speed, movements, passengers, etc.) while you travel the nation’s highways and byways.

The Fifth Amendment and the Sixth Amendment work in tandem. These amendments supposedly ensure that you are innocent until proven guilty, and government authorities cannot deprive you of your life, your liberty or your property without the right to an attorney and a fair trial before a civilian judge. However, in the new suspect society in which we live, where surveillance is the norm, these fundamental principles have been upended. Certainly, if the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights. That’s the crux of a case before the U.S. Supreme Court challenging the government’s use of asset forfeiture to strip American citizens of the funds needed to hire a defense attorney of their choosing.

The Seventh Amendment guarantees citizens the right to a jury trial. However, when the populace has no idea of what’s in the Constitution—civic education has virtually disappeared from most school curriculums—that inevitably translates to an ignorant jury incapable of distinguishing justice and the law from their own preconceived notions and fears. However, as a growing number of citizens are coming to realize, the power of the jury to nullify the government’s actions—and thereby help balance the scales of justice—is not to be underestimated. Jury nullification reminds the government that it’s “we the people” who can and should be determining what laws are just, what activities are criminal and who can be jailed for what crimes.

The Eighth Amendment is similar to the Sixth in that it is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, the Supreme Court’s determination that what constitutes “cruel and unusual” should be dependent on the “evolving standards of decency that mark the progress of a maturing society” leaves us with little protection in the face of a society lacking in morals altogether. For example, a California appeals court is being asked to consider “whether years of unpredictable delays from conviction to execution” constitute cruel and unusual punishment. For instance, although 900 individuals have been sentenced to death in California since 1978, only 13 have been executed. As CBS News reports, “More prisoners have died of natural causes on death row than have perished in the death chamber.”

The Ninth Amendment provides that other rights not enumerated in the Constitution are nonetheless retained by the people. Popular sovereignty—the belief that the power to govern flows upward from the people rather than downward from the rulers—is clearly evident in this amendment. However, it has since been turned on its head by a centralized federal government that sees itself as supreme and which continues to pass more and more laws that restrict our freedoms under the pretext that it has an “important government interest” in doing so. Thus, once the government began violating the non-enumerated rights granted in the Ninth Amendment, it was only a matter of time before it began to trample the enumerated rights of the people, as explicitly spelled out in the rest of the Bill of Rights.

As for the Tenth Amendment’s reminder that the people and the states retain every authority that is not otherwise mentioned in the Constitution, that assurance of a system of government in which power is divided among local, state and national entities has long since been rendered moot by the centralized Washington, DC, power elite—the president, Congress and the courts. Indeed, the federal governmental bureaucracy has grown so large that it has made local and state legislatures relatively irrelevant. Through its many agencies and regulations, the federal government has stripped states of the right to regulate countless issues that were originally governed at the local level.

If there is any sense to be made from this recitation of freedoms lost, it is simply this: our individual freedoms have been eviscerated so that the government’s powers could be expanded, while reducing us to a system of slavery disguised as a democracy.

The film V for Vendetta is a powerful commentary on how totalitarian governments such as our own exploit fear and use mass surveillance, censorship, terrorism, and militarized tactics to control, oppress and enslave.

As the lead character V observes:

Where once you had the freedom to object, to think and speak as you saw fit, you now have censors and systems of surveillance coercing your conformity and soliciting your submission. How did this happen? Who’s to blame? Well certainly there are those more responsible than others, and they will be held accountable, but again truth be told, if you’re looking for the guilty, you need only look into a mirror. I know why you did it. I know you were afraid. Who wouldn’t be? War, terror, disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you, and in your panic you turned to the now high chancellor, Adam Sutler. He promised you order, he promised you peace, and all he demanded in return was your silent, obedient consent.

How will you have it? Will you simply comply while the train heads down the track to a modern-day Auschwitz? Or will you become a free person and resist? To quote Patrick Henry, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! — I know not what course others may take; but as for me, give me liberty or give me death!”

“If the freedom of speech be taken away, then dumb and silent we may be led, like sheep to the slaughter.”—George Washington

The architects of the American police state must think we’re idiots.

With every passing day, we’re being moved further down the road towards a totalitarian society characterized by government censorship, violence, corruption, hypocrisy and intolerance, all packaged for our supposed benefit in the Orwellian doublespeak of national security, tolerance and so-called “government speech.”

Long gone are the days when advocates of free speech could prevail in a case such as Tinker v. Des Moines. Indeed, it’s been 50 years since 13-year-old Mary Beth Tinker was suspended for wearing a black armband to school in protest of the Vietnam War. In taking up her case, the U.S. Supreme Court declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Were Tinker to make its way through the courts today, it would have to overcome the many hurdles being placed in the path of those attempting to voice sentiments that may be construed as unpopular, offensive, conspiratorial, violent, threatening or anti-government.

Consider, if you will, that the U.S. Supreme Court, historically a champion of the First Amendment, has declared that citizens can exercise their right to free speech everywhere it’s lawful—online, in social media, on a public sidewalk, etc.—as long as they don’t do so in front of the Court itself.

What is the rationale for upholding this ban on expressive activity on the Supreme Court plaza?

“Allowing demonstrations directed at the Court, on the Court’s own front terrace, would tend to yield the…impression…of a Court engaged with — and potentially vulnerable to — outside entreaties by the public.”

Translation: The appellate court that issued that particular ruling in Hodge v. Talkin actually wants us to believe that the Court is so impressionable that the justices could be swayed by the sight of a single man, civil rights activist Harold Hodge, standing alone and silent in the snow in a 20,000 square-foot space in front of the Supreme Court building wearing a small sign protesting the toll the police state is taking on the lives of black and Hispanic Americans. [You can watch the video here: https://www.youtube.com/watch?v=xy1HQm67b2c]

My friends, we’re being played for fools.

The Supreme Court is not going to be swayed by you or me or Harold Hodge.

For that matter, the justices—all of whom hale from one of two Ivy League schools (Harvard or Yale) and most of whom are now millionaires and enjoy such rarefied privileges as lifetime employment, security details, ample vacations and travel perks—are anything but impartial.

If they are partial, it is to those with whom they are on intimate terms: with Corporate America and the governmental elite who answer to them, and they show their favor by investing in their businesses, socializing at their events, and generally marching in lockstep with their values and desires in and out of the courtroom.

Screen Shot 2015-09-01 at 9.56.09 AMTo suggest that Harold Hodge, standing in front of the Supreme Court building on a day when the Court was not in session hearing arguments or issuing rulings, is a threat to the Court’s neutrality, while their dalliances with Corporate America is not, is utter hypocrisy.

Making matters worse, the Supreme Court has the effrontery to suggest that the government can discriminate freely against First Amendment activity that takes place within a government forum. Justifying such discrimination as “government speech,” the Court ruled that the Texas Dept. of Motor Vehicles could refuse to issue specialty license plate designs featuring a Confederate battle flag because it was offensive.

If it were just the courts suppressing free speech, that would be one thing to worry about, but First Amendment activities are being pummeled, punched, kicked, choked, chained and generally gagged all across the country.

The reasons for such censorship vary widely from political correctness, safety concerns and bullying to national security and hate crimes but the end result remains the same: the complete eradication of what Benjamin Franklin referred to as the “principal pillar of a free government.”

Officials at the University of Tennessee, for instance, recently introduced an Orwellian policy that would prohibit students from using gender specific pronouns and be more inclusive by using gender “neutral” pronouns such as ze, hir, zir, xe, xem and xyr, rather than he, she, him or her.

On many college campuses, declaring that “America is the land of opportunity” or asking someone “Where were you born?” are now considered microaggressions, “small actions or word choices that seem on their face to have no malicious intent but that are thought of as a kind of violence nonetheless.”  Trigger warnings are also being used to alert students to any material or ideas they might read, see or hear that might upset them.

More than 50 percent of the nation’s colleges, including Boston University, Harvard University, Columbia University and Georgetown University, subscribe to “red light” speech policies that restrict or ban so-called offensive speech, or limit speakers to designated areas on campus. The campus climate has become so hypersensitive that comedians such as Chris Rock and Jerry Seinfeld refuse to perform stand-up routines to college crowds anymore.

What we are witnessing is an environment in which political correctness has given rise to “vindictive protectiveness,” a term coined by social psychologist Jonathan Haidt and educational First Amendment activist Greg Lukianoff. It refers to a society in which “everyone must think twice before speaking up, lest they face charges of insensitivity, aggression or worse.”

This is particularly evident in the public schools where students are insulated from anything—words, ideas and images—that might create unease or offense. For instance, the thought police at schools in Charleston, South Carolina, have instituted a ban on displaying the Confederate flag on clothing, jewelry and even cars on campus.

Added to this is a growing list of programs, policies, laws and cultural taboos that defy the First Amendment’s safeguards for expressive speech and activity. Yet as First Amendment scholar Robert Richards points out, “The categories of speech that fall outside of [the First Amendment’s] protection are obscenity, child pornography, defamation, incitement to violence and true threats of violence. Even in those categories, there are tests that have to be met in order for the speech to be illegal. Beyond that, we are free to speak.”

Technically, Richards is correct. On paper, we are free to speak.

In reality, however, we are only as free to speak as a government official may allow.

Free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws and a host of other legalistic maladies dreamed up by politicians and prosecutors have conspired to corrode our core freedoms.

Battlefield_Cover_300As a result, we are no longer a nation of constitutional purists for whom the Bill of Rights serves as the ultimate authority. As I make clear in my book Battlefield America: The War on the American People, we have litigated and legislated our way into a new governmental framework where the dictates of petty bureaucrats carry greater weight than the inalienable rights of the citizenry.

It may seem trivial to be debating the merits of free speech at a time when unarmed citizens are being shot, stripped, searched, choked, beaten and tasered by police for little more than daring to frown, smile, question, challenge an order, or just breathe.

However, while the First Amendment provides no tangible protection against a gun wielded by a government agent, nor will it save you from being wrongly arrested or illegally searched, or having your property seized in order to fatten the wallets of government agencies, without the First Amendment, we are utterly helpless.

It’s not just about the right to speak freely, or pray freely, or assemble freely, or petition the government for a redress of grievances, or have a free press. The unspoken freedom enshrined in the First Amendment is the right to think freely and openly debate issues without being muzzled or treated like a criminal.

Just as surveillance has been shown to “stifle and smother dissent, keeping a populace cowed by fear,” government censorship gives rise to self-censorship, breeds compliance and makes independent thought all but impossible.

In the end, censorship and political correctness not only produce people that cannot speak for themselves but also people who cannot think for themselves. And a citizenry that can’t think for itself is a citizenry that will neither rebel against the government’s dictates nor revolt against the government’s tyranny.

The end result: a nation of sheep who willingly line up for the slaughterhouse.

The cluttered cultural American landscape today is one in which people are so distracted by the military-surveillance-entertainment complex that critical thinkers are in the minority and frank, unfiltered, uncensored speech is considered uncivil, uncouth and unacceptable.

That’s the point, of course.

The architects, engineers and lever-pullers who run the American police state want us to remain deaf, dumb and silent. They want our children raised on a vapid diet of utter nonsense, where common sense is in short supply and the only viewpoint that matters is the government’s.

We are becoming a nation of idiots, encouraged to spout political drivel and little else.

In so doing, we have adopted the lexicon of Newspeak, the official language of George Orwell’s fictional Oceania, which was “designed not to extend but to diminish the range of thought.” As Orwell explained in 1984, “The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of IngSoc [the state ideology of Oceania], but to make all other modes of thought impossible.”

If Orwell envisioned the future as a boot stamping on a human face, a fair representation of our present day might well be a muzzle on that same human face.

If we’re to have any hope for the future, it will rest with those ill-mannered, bad-tempered, uncivil, discourteous few who are disenchanted enough with the status quo to tell the government to go to hell using every nonviolent means available.

However, as Orwell warned, you cannot become conscious until you rebel.

 

“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.

 

“The year is 2025. The population is 325 million, and the FBI has the DNA profiles of all of them. Unlike fingerprints, these profiles reveal vital medical information. The universal database arrived surreptitiously. First, the Department of Defense’s repository of DNA samples from all military personnel, established to identify remains of soldiers missing from action, was given to the FBI. Then local police across the country shadowed individuals, collecting shed DNA for the databank. On the way, thousands of innocent people were imprisoned because they had the misfortune to have race-based crime genes in their DNA samples. Sadly, it did not have to be this way. If only we had passed laws against collecting and using shed DNA….”—Professor David H. Kaye

Every dystopian sci-fi film we’ve ever seen is suddenly converging into this present moment in a dangerous trifecta between science, technology and a government that wants to be all-seeing, all-knowing and all-powerful.

By tapping into your phone lines and cell phone communications, the government knows what you say. By uploading all of your emails, opening your mail, and reading your Facebook posts and text messages, the government knows what you write. By monitoring your movements with the use of license plate readers, surveillance cameras and other tracking devices, the government knows where you go.

By churning through all of the detritus of your life—what you read, where you go, what you say—the government can predict what you will do. By mapping the synapses in your brain, scientists—and in turn, the government—will soon know what you remember. And 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.

Of course, none of these technologies are foolproof. Nor are they immune from tampering, hacking or user bias. Nevertheless, they have become a convenient tool in the hands of government agents to render null and void the Constitution’s requirements of privacy and its prohibitions against unreasonable searches and seizures.

Consequently, no longer are we “innocent until proven guilty” in the face of DNA evidence that places us at the scene of a crime, behavior sensing technology that interprets our body temperature and facial tics as suspicious, and government surveillance devices that cross-check our biometrics, license plates and DNA against a growing database of unsolved crimes and potential criminals.

The government’s questionable acquisition and use of DNA to identify individuals and “solve” crimes has come under particular scrutiny in recent years. 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 has all been turned on its head by various U.S. Supreme Court rulings, including the recent 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.

Although Glenn Raynor, a suspected rapist, willingly agreed to be questioned by police, he refused to provide them with a DNA sample. No problem. Police simply swabbed the chair in which Raynor had been sitting and took what he refused to voluntarily provide. Raynor’s DNA was a match, and the suspect became a convict. In refusing to hear the 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.

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. It’s what police like to refer to a “modern fingerprint.” However, unlike a fingerprint, a DNA print reveals everything about “who we are, where we come from, and who we will be.”

With such a powerful tool at their disposal, it was inevitable that the government’s collection of DNA would become a slippery slope toward government intrusion. Certainly, it was difficult enough trying to protect our privacy in the wake of a 2013 Supreme Court ruling in Maryland v. King that likened DNA collection to photographing and fingerprinting suspects when they are booked, thereby allowing the government to take DNA samples from people merely “arrested” in connection with “serious” crimes. At that time, Justice Antonin Scalia warned that as a result of the Court’s ruling, “your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Now, in the wake of this Raynor ruling, Americans are vulnerable to the government accessing, analyzing and storing their DNA without their knowledge or permission. As the dissenting opinion in Raynor for the Maryland Court of Appeals rightly warned, “a person desiring to keep her DNA profile private, must conduct her public affairs in a hermetically sealed hazmat suit…. The Majority’s holding means that 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.”

All 50 states now maintain their own DNA databases, although the protocols for collection differ from state to state. That DNA is also being collected in the FBI’s massive national DNA database, code-named CODIS (Combined DNA Index System), which was established as a way to identify and track convicted felons and has since become a de facto way to identify and track the American people from birth to death.

Indeed, 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. However, in many states, the DNA is stored indefinitely. 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.

For the rest of us, it’s just a matter of time before the government gets hold of our DNA, either through mandatory programs carried out in connection with law enforcement and corporate America, or through the collection of our “shed” or “touch” DNA.

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.

Yet as scientist Leslie A. Pray notes:

We all shed DNA, leaving traces of our identity practically everywhere we go. Forensic scientists use DNA left behind on cigarette butts, phones, handles, keyboards, cups, and numerous other objects, not to mention the genetic content found in drops of bodily fluid, like blood and semen. 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. Or, if the future scenario depicted at the beginning of this article is any indication, 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 Forensic magazine reports, “As officers have become more aware of touch DNA’s potential, they are using it more and more. Unfortunately, some [police] have not been selective enough when they process crime scenes. Instead, they have processed anything and everything at the scene, submitting 150 or more samples for analysis.” Even old samples taken from crime scenes and “cold” cases are being unearthed and mined for their DNA profiles.

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.

If you haven’t yet connected the dots, let me point the way: Having already used surveillance technology to render the entire American populace potential suspects, DNA technology in the hands of government will complete our transition to a suspect society in which we are all merely waiting to be matched up with a crime.

No longer can we consider ourselves innocent until proven guilty. As I make clear in my book A Government of Wolves: The Emerging American Police State, now we are all suspects in a DNA lineup until circumstances and science say otherwise.

Of course, there will be those who point to DNA’s positive uses in criminal justice, such as in those instances where it is used to absolve someone on death row of a crime he didn’t commit, and there is no denying its beneficial purposes at times. However, as is the case with body camera footage and every other so-called technology that is hailed as a “check” on government abuses, in order for the average person—especially one convicted of a crime—to request and get access to DNA testing, they first have to embark on a costly, uphill legal battle through red tape and, even then, they are opposed at every turn by a government bureaucracy run by prosecutors, legislatures and law enforcement.

What this amounts to is a scenario in which we have little to no defense of 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.

Yet if there are no limits to government officials being able to access your DNA and all that it says about you, then where do you draw the line? As technology makes it ever easier for the government to tap into our thoughts, our memories, our dreams, suddenly the landscape becomes that much more dystopian.

With the entire governmental system shifting into a pre-crime mode aimed at detecting and pursuing those who “might” commit a crime before they have an inkling, let alone an opportunity, to do so, it’s not so far-fetched to imagine a scenario in which government agents (FBI, local police, etc.) target potential criminals based on their genetic disposition to be a “troublemaker” or their relationship to past dissenters. Equally disconcerting: if scientists can, using DNA, track salmon across hundreds of square miles of streams and rivers, how easy will it be for government agents to not only know everywhere we’ve been and how long we were at each place but collect our easily shed DNA and add it to the government’s already burgeoning database?

As always there will be those voices—well-meaning, certainly—insisting that if you want to save the next girl from being raped, abducted or killed, then we need to give the government all the tools necessary to catch these criminals before they can commit their heinous crimes.

It’s hard to argue against such a stance. If you care for someone, you’re particularly vulnerable to this line of reasoning. Of course we don’t want our wives butchered, our girlfriends raped, our daughters abducted and subjected to all manner of atrocities. But what about those cases in which the technology proved to be wrong, either through human error or tampering? It happens more often than we are told.

For example, David Butler spent eight months in prison for a murder he didn’t commit after his DNA was allegedly found on the murder victim and surveillance camera footage placed him in the general area the murder took place. Conveniently, Butler’s DNA was on file after he had voluntarily submitted it during an investigation years earlier into a robbery at his mother’s home. The case seemed cut and dried to everyone but Butler who proclaimed his innocence. Except that the DNA evidence and surveillance footage was wrong: Butler was innocent.

That Butler’s DNA was supposedly found on the victim’s nails was attributed to three things: one, Butler was a taxi driver “and so it was possible for his DNA to be transferred from his taxi via money or another person, onto the murder victim”; two, Butler had a rare skin condition causing him to shed flakes of skin—i.e., more DNA to spread around, much more so than the average person; and three, police wanted him to be the killer, despite the fact that “the DNA sample was only a partial match, of poor quality, and experts at the time said they could neither say that he was guilty nor rule him out.”

Moreover, despite the insistence by government agents that DNA is infallible, New York Times reporter Andrew Pollack makes a clear and convincing case that DNA evidence can, in fact, be fabricated. Israeli scientists “fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva,” stated Pollack. “They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.” The danger, warns scientist Dan Frumkin, is that crime scenes can be engineered with fabricated DNA.

Now if you happen to be the kind of person who trusts the government implicitly and refuses to believe it would ever do anything illegal or immoral, then the prospect of government officials—police, especially—using fake DNA samples to influence the outcome of a case might seem outlandish. But for those who know their history, the probability of our government acting in a way that is not only illegal but immoral becomes less a question of “if” and more a question of “when.”